https://www.accessnow.org:443/election-watch-kenya-orders-internet-shutdown-will-telcos-help-keepiton/

Election watch: If Kenya orders an internet shutdown, will telcos help #KeepItOn?

On August 8th, Kenya will hold its presidential election. At a time when governments in Africa continue to order network disruptions and shutdowns despite their devastating impact on human rights and the economy, all eyes are on Kenyan officials. But for those of us seeking an end to shutdowns, there are other places to look. Telecommunications companies empower people to exercise freedom of expression, but they can also enable politically motivated attempts to control the flow of information online. Kenya is a champion of the digital economy and has a strong reputation for putting technology to work for people’s rights and interests. If the government orders a shutdown during the election anyway, will Kenyan telcos stand firm against those demands?

What the government says

In response to media pressure, Kenyan officials have called an election shutdown “unlikely.” This is encouraging. However, Kenya has a history of post-election violence, and an outbreak could lead officials to disrupt networks if they believe it is “necessary.” Last year, no fewer than five African governments – Chad, Gabon, Gambia, Uganda, and Zambia – carried out shutdowns during their elections, even though it is one of the most critical moments in a democracy.

Fortunately, civil society is already preparing for the possibility that Kenya may follow suit, including developing resources for pushback. New research from KICTANet has found that there is no legal basis for an internet shutdownunder Kenyan law. As this research makes abundantly clear, if the government orders a shutdown, telcos in Kenya have both the capacity and the obligation to challenge any shutdown order to protect the rights of their users and their own financial security.

Even better, however, would be telcos taking action right now to prevent a shutdown. That starts with a public pledge. Access Now calls on all Kenyan telcos to clearly state they will respect human rights and push back on any orders to disrupt networks next month.

Below, we explore why it makes sense for Kenyan telcos to help prevent and/or push back on shutdowns, and the tools they can use to get the job done.

Why Kenya’s telcos should push back on any shutdown orders

Access Now has detailed the reasons that the Kenyan government should commit to keeping the internet on during the elections. Those in the telecommunications sector also have an obligation to respect human rights, and there are ample economic reasons for preventing shutdowns.

Currently, an estimated 84% of Kenya’s population are internet users, and its mobile internet speeds are among the fastest in the world. This impressive and growing telecommunications capacity has facilitated innovation and a thriving digital economy, as well as robust online activism.

Further, Kenya’s mobile market has grown steadily with support from a mobile subscriber base of 39.8 million. About 90% of Kenyans access the internet via their mobile phones or broadband at their workplace. A targeted mobile internet shutdown would thus not only hurt telcos’ bottom line, it would also deprive a significant population of access to a  tool necessary for their daily lives and livelihoods.

Which telcos are likely to push back if the government orders a shutdown? Access Now is mapping telco ownership in our Who Owns What (WOW) database to see whether factors like whether a telco is owned by the government impacts its decision to carry out shutdown demands.

Kenya’s mobile market has three key players: Safaricom, Airtel, and Telkom Kenya. Safaricom is 40% owned by the U.K.-based telco Vodafone, 35% owned by the government, and 25% owned by public investors. Airtel Kenya is fully owned by its parent company, India’s Bharti Airtel, and and Telkom Kenya is 40% government-owned and 60% owned by the private equity investment firm Helios Investment Partners.

Safaricom is the largest telecommunications firm in the country, primarily due to its popular mobile phone-based payment platform, M-PESA, responsible for 145 million USD in payments daily. The mobile service provider controls a 71% market share of the mobile money network, with 27.7 million subscribers, as of December 2016. Safaricom is also the only company operating an active 4G network after it purchased a license in early March.

As the largest telco, both in terms of the number of subscribers and geographic coverage, Safaricom, which is partially owned by the government, would have the biggest role in carrying out a shutdown and letting customers know about the nature, scope, and magnitude of the disruption. In 2014, Safaricom drew scrutiny from civil society when it contracted with the Kenyan government to build a massive surveillance system. In April 2017, a Safaricom network outage left millions of people in a communications blackout for seven hours. This “brief” shutdown led to the loss of Sh2.6 billion M-Pesa transactions (about $24.9 million). It shows just how much Safaricom and other companies have to lose if they carry out a shutdown order without pushing back.

How Kenya’s telcos can prevent or mitigate the impact of a shutdown

Telcos have a duty to reject government orders for a shutdown and respect human rights. They also have a number of tools at their disposal to ensure this pushback is effective.

Safaricom and Airtel are both party to the United Nations Global Compact, which includes a commitment to respect and protect “internationally proclaimed human rights.” Experts at the U.N. have explicitly affirmed that human rights apply online, and have specifically condemned internet shutdowns. A new report by U.N. special rapporteur David Kaye finds that shutdowns “involve measures to intentionally prevent or disrupt access to or dissemination of information online in violation of human rights law.” Given these statements, we believe that telcos that are party to the Global Compact must refrain from intentionally disrupting networks.

Even though some of Kenya’s telcos agree to the Compact, none have standalone human rights policies, nor have they issued public statements affirming their support for privacy and freedom of expression and plans to mitigate risks to those rights. These human rights policies, recognized by Ranking Digital Rights, are a way for companies to signal to the world that they recognize and will respect human rights in the digital age. When a telco has a policy, and senior leadership approves it, it helps company employees confidently push back on government demands that threaten users. It also builds trust among the company’s partners, investors, and civil society stakeholders.  (One example is the policy issued by South Africa-based telco MTN in 2014.) We call on the leadership of Kenya’s telcos to draft and approve human rights policies.

However, even without these policies in place, telcos have several tools for challenging government orders. Here are a few:

  1. Engage in pushback and legal challengesSafaricom is 35% owned by the government, but it has already shown its willingness and capacity to resist government threats to the freedom of expression. This past February, the government released a plan to monitor social media and mobile phones, but Safaricom pushed back against the Communications Authority, rejecting a proposal to install device management systems. Its lawsuit argues that the plan would discourage Kenyans from buying or using mobile phones. The case is set to be heard on September 20, 2017. Access Now strongly supports the company’s defense of its users, as systematically tracking users and phones opens the door for the massive breach and abuse of sensitive personal data, turning citizens into suspects and chilling their expression.  
  2. Implement rights-respecting standards – Telcos have also demonstrated that they can protect human rights while addressing security concerns. Leading up the 2013 Kenyan election, officials sought to prevent an outbreak of violence, focusing specifically on the use of hate speech disseminated through SMS. Companies including Safaricom were tasked with protecting users’ privacy while navigating Kenya’s new hate speech laws. Importantly, they relied on international human rights law and worked with civil society in carrying that out, crafting an internal policy using  benchmarks such Premium Rate Messaging and the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the European Convention for Protection of Human Rights and Fundamental Freedoms. Its experience shows that telcos can brainstorm creative solutions that address government concerns while remaining committed to human rights.
  3. Influence public policy  Telcos can also use a new advocacy tool from the Global Network Initiative to educate policymakers. The GNI one-pager lists the many harms of internet shutdowns, including human rights violations, safety risks, financial disruption, and GDP loss. It also provides resources that companies can use to inform government officials about the severity of these potential costs.
  4. Explore other kinds of leverage, such as technical resources In April, Liquid Telecom, a Pan-African data, voice and IP provider, submitted a proposal called Anti-Shutdown 101 to the African Network Information Centre (AfriNIC) which suggested that the NIC respond to internet shutdowns by withholding resources from the governments that order them. Although the proposal failed to pass, it did serve to demonstrate that the private sector can explore new avenues for leverage when faced with government orders that violate human rights.
  5. Work with allies – If the government orders a shutdown, external organizations will likely put pressure on telcos to challenge the order. The Kenyan Human Rights Commission filed a suit last month against the Communication Authority, Safaricom, Airtel, Telkom, and the Attorney General to prevent the installation of device management systems, arguing that it would open a backdoor to confidential information on users’ devices. More broadly, Safaricom has met with civil society in Kenya and has begun to build the coalition necessary to push back effectively.
  6. Increase transparency Telcos must keep consumers informed in the event of a shutdown. In April, KICTANet held an online chat with Safaricom representatives. Participants raised the issues of human rights, user privacy, and internet shutdowns. Although Safaricom reiterated that the company is obligated to follow government directives, it separately affirmed that it aims to become the “most transparent operator in the market.” We support this commitment and urge Safaricom to extend that affirmation to a pledge to disclose to the public any government order for a shutdown, and to issue regular transparency reports on government and third-party requests impacting user privacy and free expression. For example, in its first Sustainability Report, Liquid Telecom included a Transparency Report disclosing government requests for customer contacts, internet blocking, and censorship. These kinds of disclosures set important standards for how telcos can combat government abuses and keep the public informed of potential rights violations. 
Now is the time for telcos to pledge: We will not comply with shutdown orders
In sum, based on Kenya’s digital rights environment and the U.N. Guiding Principles on Business & Human Rights, we request that each telco operating in Kenya issue:
  1.  a human rights policy approved by senior leadership, affirming support for privacy and freedom of expression;
  2. a pledge to publish, scrutinize, and push back against shutdown orders; and
  3. regular transparency reports on government and third-party requests impacting user privacy and free expression.
 We hope that Kenyan officials will not order a shutdown, and especially not during the elections on August 8th. However, if they do, Kenyan telcos can and should publicly disclose, closely scrutinize, and legally challenge the order to protect the Kenyan people’s rights – and their own reputation and financial well being. Kenya is a leader in connectivity, accessibility, and innovation in Africa, but all of that is at risk if they choose to deliberately disrupt networks. Kenya is also a member of the Freedom Online Coalition, but it sits next to five other governments that shut down the internet during elections last year. The world will be watching Kenya’s upcoming elections. If the government orders a shutdown, we expect telcos to show leadership by employing any of the tools above to #KeepItOn.

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