Data Protection Bill: Portability section

Rafe

Yes. Indeed. The work you are doing in Financial Inclusion is a great
pointer in how to address some of these issues. This could perhaps be a
topic of discussion in the upcoming Kenya IGF end of this month? We could
also possibly have the folks from FSD (Financial Sector Deepening) and PAK
(Payments Association of Kenya)? Happy to take this conversation offline.

Regards

*Ali Hussein*

*Principal*

*AHK & Associates*

Tel: +254 713 601113

Twitter: @AliHKassim

Skype: abu-jomo

LinkedIn: ke.linkedin.com/in/alihkassim
<ke.linkedin.com/in/alihkassim>

13th Floor , Delta Towers, Oracle Wing,

Chiromo Road, Westlands,

Nairobi, Kenya.

Any information of a personal nature expressed in this email are purely
mine and do not necessarily reflect the official positions of the
organizations that I work with.

On Fri, Jul 5, 2019 at 7:34 PM Rafe Mazer via kictanet <
[email protected]> wrote:

> For banking, tech and telcoms it can, and in some cases is already done,
> in nearly instant fashion. Think about account statements via web or
> USSD/email combo, and the sharing of account data in commercial
> partnerships like MNO/Bank tie-ups (which is portability minus the consumer
> control over it.) The technically feasible exemption could make sure firms
> that can\’t comply (like maybe a small SACCO in the case of finance), don\’t
> have to. We have also already seen how the 30 days time period in credit
> bureaus has made that data not useful to mobile lenders, so I imagine a 30
> day lag would be similarly problematic in a portability model.
>
> I am glad Ali mentioned Open Banking models. I have been studying them
> intensively across the globe for 2 years now. While I would say in Kenya
> it\’s more Open Finance than just open banking, it is a useful concept for
> Kenya. Generally those models are real-time for participants. So imagine if
> CBK or others wanted to implement such a model here for banks and FinTechs,
> they would then be in conflict with the 30 days standard in the Data
> Protection Bill. 30 days seems both too long based on global practices and
> also perhaps too prescriptive, when that should be worked out in later
> regulations or guidelines.
>
> On Fri, Jul 5, 2019 at 7:16 PM Mwendwa Kivuva <[email protected]>
> wrote:
>
>> KICTANet produced the Memorandum on policy regulatory framework for
>> privacy and data protection submitted to the task force on Privacy and Data
>> protection 2018.
>>
>> Check on the submission section here:
>> www.kictanet.or.ke/?page_id=40115
>>
>> When you look at the reporting issue as a business entity, is 30 days
>> good enough? When creating laws, we must be able to balance interests of
>> different stakeholders. How many extra resources would a company need to
>> produce reports in a week? Two weeks? A month? Probably 30 days is a
>> reasonable period.
>>
>> On Fri, Jul 5, 2019, 18:39 Rafe Mazer via kictanet <
>> [email protected]> wrote:
>>
>>> Also like the point on leaving flexibility in the Law not saying 30 days
>>> across the entire economy.
>>>
>>> Rafe Mazer
>>> Consumer Protection and Behavioral Research Consultant
>>> Nairobi, Kenya
>>> +254 723950645
>>> @rkmazer
>>>
>>> On 5 Jul 2019, at 11:23 AM, Liz Orembo <[email protected]> wrote:
>>>
>>> Thank you for starting this discussion Rafe,
>>>
>>> I agree 30 days to honor consumer data request could be too long
>>> compared to Access to Information Act that gives 21 days. Perhaps we should
>>> leave it for the data protection authorities to set guidelines for
>>> different industries and probably encourage automated retrieval of personal
>>> data by the end users.
>>>
>>> I am also of the view that data portability cannot be free of charge in
>>> all circumstances. I get the point that the term \’reasonable\’ may be
>>> subject to abuse (perfect demonstration is in the presidential elections
>>> petition), but there is also a cost element to collecting data. Why would a
>>> company want to transfer it for free to another company? Of course would
>>> love to hear others opinion on this.
>>>
>>>
>>> On Fri, Jul 5, 2019 at 5:40 PM Rafe Mazer via kictanet <
>>> [email protected]> wrote:
>>>
>>>> Hi KICTA Net members. I\’m Rafe Mazer, a consumer protection in digital
>>>> financial services specialist working in Kenya the past 5 years (and
>>>> globally on this toic for 10+ years.)
>>>>
>>>> I just saw the new Data Protection Bill within the National Assembly (
>>>> parliament.go.ke/sites/default/files/2019-07/The%20Data%20Protection%20Bill%2C%202019.pdf)
>>>> and wanted to raise a discussion internally about Section 38 on Data
>>>> Portability to see if KICTA Net may want to engage further on the topic.
>>>> Specifically there are two aspects that were concerning:
>>>>
>>>> 1. The allowance for 30 days to honor a data subject\’s request for
>>>> information held on them.
>>>> In a digital economy, this is an excessively long period, and also
>>>> quite a blunt instrument to apply across the entire economy, where health
>>>> records are different from government records are different from financial
>>>> records, etc. This would also kill the utility of portability in spaces
>>>> like FinTech. Imagine I want to use my economic history with data
>>>> controllers to get competing mobile loan offers. It could take up to 30
>>>> days to share that information, which is not aligned with the near-instant
>>>> nature of these products and consumers\’ expectations on timing. Already the
>>>> Bill rightly notes portability should only apply where \”technically
>>>> feasible\” to exempt low-tech industries or providers, so there is no sense
>>>> is saying that those who are deemed to be able to comply technically with
>>>> portability should have up to 30 days to do so. If this language is kept in
>>>> it will be used to delay–and defacto deny–consumer use of their data for
>>>> increased choice in digital segments of the economy.
>>>>
>>>> Further, since access to information is included in the same section as
>>>> portability, and they are not explicitly differentiated, you could argue
>>>> data controllers have not just 30 days to honor a portability request, but
>>>> to even tell you what data they hold on you the data subject. This is far
>>>> too long a time to permit for a basic consumer data right. Right now some
>>>> providers offer financial statements to the data subject much faster than
>>>> that–in minutes or seconds–but allowing 30 days could encourage setting
>>>> practices to that standard going forward, reducing consumer access to their
>>>> own data not improving it.
>>>>
>>>> 2. The allowance of a \”reasonable fee\” to be charged for a portability
>>>> request could lead to anti-competitive and excessive pricing. \”Reasonable\”
>>>> is highly subjective, and we have seen Competition Authority already had to
>>>> intervene to stop anti-competitive use of wholesale USSD rates in mobile
>>>> financial services (
>>>> techweez.com/2017/03/17/cak-wants-safaricom-lower-ussd-charges-mobile-banking/).
>>>> It is highly likely a \”reasonable fee\” window would be deployed similarly
>>>> where beneficial to firms and require ex-post intervention. The original
>>>> language from the 2018 Bill where this was free of charge seems a much
>>>> better approach.
>>>>
>>>> Curious to hear others\’ thoughts or context on this section, and how
>>>> KICTANet could help to fix this section for the final version of the Bill
>>>> so we don\’t create an anti-innovation and anti-consumer portability regime
>>>> that will be the law of the land.
>>>>
>>>> Thanks for the chance to share and discuss on this platform,
>>>>
>>>> Rafe Mazer
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>>>
>>>
>>> —
>>>
>>> Best regards.
>>> Liz.
>>>
>>> PGP ID: 0x1F3488BF
>>>
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>>> regulation. The network aims to act as a catalyst for reform in the ICT
>>> sector in support of the national aim of ICT enabled growth and development.
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> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people\’s times and bandwidth,
> share knowledge, don\’t flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>

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