BY GAD WESONGA
In recent times, there has been an upsurge in the use of CCTV systems around the world. Kenya has not been left behind in this technological evolution and revolution.
Over time, the country has experienced an increase in installation of CCTV systems whose use range from domestic, industrial, public and private not only to enhance security but also as invaluable tool for data and information gathering; making it a reliable source for mining of business intelligence. This realization continues to motivate more CCTV system installations and use among the conscious many.
Like any other inventions whose use become embedded in the regular human activities, the element of regulation and control become a concern. In their 2017 research on CCTV Regulations in Kenya, Brenda Kithinji and Margaret Nguyo indicated that regulations of CCTV footage in Kenya were not fully developed. Their study published in the International Journal of Law and Policy (IJLP) went further to point out that there is no legal framework in place to regulate the operations of CCTV and how the data collected is used. Brenda and Margaret recommended the need to ensure that data collected from CCTV is used solely for the purpose meant by enacting and implementing laws on CCTV systems installation and use.
This recommendation seems to have caught the attention of the state functionaries, who have since developed a draft CCTV policy document. Courtesy of the policy, the country is poised to be dotted with more CCTV cameras in future as all public and private institutions will now have to install the systems.
Additionally, those who install CCTV systems in their homes and business facilities will have to register the same with the state in line with the proposed National CCTV Policy that attempts to standardize the installation, operation and management of the digital security systems in the country.
In the draft policy published by the Ministry of Interior and Coordination, the National Government will establish a national CCTV coordination centre that will register all installations in Kenya. According to the policy, those who install CCTV systems will have to ensure their systems are compatible with the government’s own digital security network. Mr Geofrey Kinuthia, a CCTV systems specialist says that the new requirements are likely to increase the cost of developing and installing the system as product vendors and technicians move to comply.
The policy further requires owners of CCTV systems to report incidences and footage captured on their systems to the police as well as to facilitate retrieval and handover of the footage upon request.
Mr Kinuthia is also concerned that the CCTV policy is somewhat making it mandatory for private persons and businesses to install CCTV and also makes it compulsory for owners to link private systems with government agencies. He argues that this is vague for the policy to require that relevant concerns of all parties potentially affected by the systems to be taken into account since it does not state who are the stakeholders which then leaves room for exploitation by unscrupulous government agents seeking to establish whether ‘’stakeholders’’ were consulted before systems were installed.
“This is applicable to private organizations planning to install CCTV. It seems the policy has been copied from a private organization (corporate security) and is being adjusted to national security. The approach to both is very different,” he adds.
The proposed policy further requires owners to provide linkage between their CCTV and government agencies. Mr Kinuthia advises that this is not practical because CCTV system requires Internet connections to link them to remote locations and there is a cost for this. “Who will pay for the internet connection?” he wonders.
His apprehension goes further that private business like hotels could be reluctant to allow other networks to connect to their private corporate networks so as to guarantee their clients’ privacy.
The policy talks of registration of all National CCTV systems installations. To this, he poses: “Does it mean that all CCTV installations should be registered? CCTV system in my house should not require government approval. This is similar to when we had to obtain a license to own a television”. Instead he recommends that the Government should encourage businesses and homeowners to install CCTV cameras and establish mutually agreeable ways of information sharing.
The proposed policy requires owners/operators to ensure that their CCTV systems operate 24/7, but Mr Kinuthia argues that the government should not dictate how private systems should be run since there is a cost associated to having systems up and running 24 hours, such as power. A single camera, he says, consumes about 18-20 watts; 10 cameras would therefore consume about 6Kwh, which cost about Sh4, 280 a month proposes that the government should provide guidance on best practice regarding the choosing of a CCTV system that is fit for purpose similar to UK Home Office Scientific Development Branch CCTV Operational Requirements Manual.
Evolution and revolution
CCTV is short for Closed Circuit Television where a number of video cameras are used to transmit a signal to a particular point on specific set of monitors. This definition implies that CCTV cameras do capture activities of each individual as they move around the area under coverage.
Like most inventions that are triggered by military and security needs, CCTV technology is reported to have been birthed in Germany around 1942 by the military which used remote cameras to observe the launch of V2 rockets. In the 70s and 80s, the use of CCTV moved to the banking halls and retail shops as an added security measure to deter crime and record activities as they unfold within the targeted areas of interest.
The dynamic technological implosion has pushed CCTV system today to impressive versatility where its use continues to expand.
The UK is reported to be the country under most CCTV surveillance in the World with over six million CCTV cameras installed; 75% of these are privately owned. This heavy investment in the CCTV systems has enabled the UK to maximize on extracting value associated with the robustness of the modern CCTV system technology.
Some of the uses include monitoring traffic to see if there are any accidents and deterring motorists from speeding or committing other traffic offences. CCTV cameras have also been installed in vehicles and in private parking lots for protection against vandalism. They are also used to maintain public safety and to keep an eye for crimes in progress or before they are executed. Furthermore, images of the criminals are put on posters and members of the public requested for any information that may lead to their apprehension.
The presence of CCTV cameras serves to give confidence in the public because nobody would want to go into a location where they feel that their security is compromised. People believe that it is unlikely for crime to be committed in an area with CCTV cameras as criminals are conscious of being observed.. The cameras also assist in investigations.
CCTV and data protection in the UK
The challenges associated with the dense presence of CCTV cameras in the UK considering that most of it is in private control and the aspect of privacy and data protection prompted the state to act on its regulation.
All CCTV controllers are expected to register with the information commissioner’s office and ensure that they are operating in accordance with the data protection principles which are provided for under the data protection act that is used to regulate the use of any personal data collected about the citizens of the country. Article 8 of the European Convention on Human Rights provides that “everybody has a right to respect for his private and family life, his life and his correspondence.” Consequently, the issue of privacy is the major challenge that the installation of CCTV cameras has encountered. The purpose of the UK Data Protection Act and principles there in is therefore to ensure that the individual data collected including by use of CCTV Cameras are used solely for the purpose that it was collected for.
They should ensure that they comply with all the other data protection principles before sending personal data abroad. They should also check to ensure that the country or territory where they are sending the personal data provides for adequate protection of the processing of personal data.
The location of the cameras is also an important aspect to ensure that the images captured are in a manner that is specified. In achieving this, the CCTV should only be used to monitor the intended space.
In this regard, domestic owners need to be consulted in cases where they border premises that are being monitored by CCTV cameras and be restricted where possible so that they cannot overlook what they are not intended to view. Signage informing the public that they are entering areas covered by CCTV cameras should be conspicuous, clear, and legible for all to see. These signs are meant to ensure that the public is informed of the presence of CCTV cameras so that they cannot claim later that their right to privacy was infringed yet they impliedly consented by getting into the areas which are under CCTV surveillance on their own.
Challenges in Implementation in the UK
The fact that the public gets surveyed everywhere in public as well as in private premises brings an issue of transparency. This is so because the public does not know how the information being captured is being used and where it is used. There are several instances where the images captured by CCTV cameras are used by fraudsters to defraud innocent members of the public. Therefore one can never be sure as to who has the authority to access the cameras and how they are used especially in private premises and property. There is very little that citizens can do if their private data, which has been gathered by CCTV cameras, gets in the wrong hands.
As much as private owners will be held accountable for invading into the privacy of others when their security cameras meant to monitor only their property captures other people’s property, the issue of accountability comes in as the Data Protection Act is only out to protect public surveillance. Therefore claimants will not have a sufficient law to back their claim when seeking compensation in a court of law.
As much as the Data Protection Act places an obligation on the data controllers to have security measures in place to prevent unauthorized access to, alteration, disclosure and or destruction of data there is no specific security measure that a data controller has.
Another challenge is the poor definition of terms in the Data Protection Act, which makes the interpretation complicated for the implementers. Personal data as defined in the Act is quite narrow and vague. The Act says that personal data is “data which relates to a living individual who can be identified from the data or from those data and other information which is in the possession or is likely to come into the possession of the data controller. From this definition we can see that it is not quite deep. Clarification and the definition of personal data would rather be relating to somebody as opposed to a living individual.
There has also been the issue of Data Protection Act only being in place to regulate the public use of CCTV cameras and leaving out the domestic users of CCTV out to use them as they so wish. The Data Protection Act has not been able to effectively come up with laws that will regulate domestic users on how to go about CCTV cameras. This thus leaves a great gap as most of the owners of CCTV in the UK are private users and if there is no regulation as to how they should use their CCTV it means that some could be malicious and misuse the freedom.
The other problem facing implementation of the Data Protection Act is the lack of specifications on how long the personal data of citizens can be retained, how long data controllers should keep the personal data. It just says that data controllers should retain data for as long as it is necessary.
Mitigating the challenges
However, the UK has taken measures to deal with the challenges of the Data Protection Act. Some of the measures include the fact that it has come up with a government policy, which has been put in place to ensure and provide assurance to individuals that their information will be protected and will be used only for legitimate purposes. The Government has also introduced a monetary penalty. This helps to ensure that data controllers who do not take reasonable measures to prevent the most serious breach of the Data Protection principles are liable for a fine as well as an enforcement notice.
In cases where the data is being deliberately and recklessly misused, the Government has amended the Data Protection Act to provide an order making power to increase the penalty for such an offense to maximum of a two years imprisonment.
The use of CCTV systems has traditionally presented a policy challenge to law enforcement agencies in Kenya, particularly when footage is presented as evidence in court. This is because several cases in the past have been crippled when the court declines to admit CCTV evidence after lawyer’s argument that the footage could have been manipulated.
In some criminal instances where evidence from the CCTV cameras is expected to be used you will find that there is a missing minutes which leads to concerns of possible interference with the footage. Some clips have actually been reported erased.
Issues of privacy are taken into consideration as the Constitution in article 31 provides for the right to privacy. It states that every person has a right to privacy, which includes the right not to have their person or property searched, their possessions seized, information relating to their family or private affairs unnecessarily required or revealed or the privacy of their communication infringed.
The recently signed Kenyan Data Protection Bill 2019 is meant to be regulating the collection, retrieval, processing, storage, use and disclosure of personal data which includes data collected by CCTV cameras. The CCTV policy is supposed to be anchored on this law.
Brenda and Margaret in their research document indicate that the Government should take it as a priority to come up with a law that will regulate the use of CCTV cameras as the law should always keep up with new technologies that keep cropping up in the world so as to ensure they do not go unregulated. It should also ensure while making a law to regulate CCTV that they look at both the use of CCTV in both the public and private space.
Mr Kinuthia advices that borrowing from the UK approach, best practice would require that Kenya establishes a body that accredits CCTV installers and operators similar to a Security Industry Authority (SIA) license in the UK.
“This licensing ensures that private security operatives are ‘fit and proper’ persons who are properly trained and qualified to do their job,” he says. The SIA is the statutory organization responsible for regulating the private security industry in the UK.
Today, there is a pronounced shift from the original use of CCTV system for security objectives to other multiple functions. Retail outlets such as supermarkets use the system for customer service whereby the supervisor quickly picks out the queuing challenges and attends to it. The same applies to reviewing the footages so establish if the staffs are carrying out their work as per the standards expected. This is also used for appraisal and giving feedback for opportunity to improve.
In the manufacturing sector, the CCTV system is used to remotely monitor operations by the management to ensure that the ongoing activities in the plant and operations conform to the expectations. It also helps to resolve operational disputes.
In some cases such as banking, it is now a regulatory requirement to put CCTV cameras in such places as where Automatic Teller Machines, Cash collection points and related operations are located. The much-hyped artificial intelligence is also hinged on CCTV system technology.
The technology that is CCTV has also helped in cost cutting and improved efficiency of many business enterprises. For example in retail businesses such as supermarkets rather than employ several supervisors or managers, CCTV cameras can be mounted throughout the facility with one off investment and a single individual uses the same to monitor and manage operations quite effectively. For those operations that require routine outdoor patrols, the same can be effectively achieved by use of CCTV thus saving on time and fuel that would have been used to achieve the same objective.
The drafters of the CCTV systems regulations and policies in Kenya therefore need to recognize and appreciate that CCTV use has radically departed from the conventional security to a far wide and versatile one with varying objectives. Security is fast becoming just another use and not primary.
Just like the MPESA concept in Kenya, which was initially designed for mobile money transfers but now has rapidly evolved into a phenomenon revolution that has swept across multiple business operations, the CCTV technology is gradually taking a similar direction. It is therefore important that the spirit of this realization is embedded in the drafts and mechanism for continuous review put in place in order to remain alive to the dynamic evolutionary nature of technology that impacts CCTV systems technology.