Thread by @NubianRights

Today's court proceedings on #HudumaNamba & #NIIMS have begun!

Day 4 is starting with continued cross-examination of witness for respondents Mr. Brian Omwenga by counsel for petitioners Yussuf Bashir @yussufugas

Counsel Awele continues the cross-examination

#HudumaNamba

Counsel Awele asks: if security policies were pre-defined, those policies would perhaps assuage concerns of petitioners?

Witness: is say that's a fairly good question... this data has already been given to govt, concerns about security not raised before

#HudumaNamba

Awele: on what basis do you say concerns on security not raised before?

Witness: its unfounded

#HudumaNamba

Awele asks in affidavit witness says data from #NIIMS if breached would have "insignificant commercial value" and asks if the only risk of data breach would be potential commercial value? Do you understand other risks that could result from unauthorized access of personal data?

Witness affirms there could be other risks

Awele: you attached to your affidavit the European GDPR - turn to recital/paragraph 38, what does it recommend in terms of children's data?

Witness: "children merit special protection in regards to their personal data"

#HudumaNamba

Witness: (reading from GDPR) personal data merits special protection b/c processing may lead to special risks in terms of fundamental rights

Awele: you supplied this doc to court as best practice - does it resonate w/your recommendation on security of data?

Yes

#HudumaNamba

Awele: do you understand what is meant by "privacy by design & default?" Article 25(1)

Witness: (reads from GDPR)

#HudumaNamba

Awele: again a best practice and standard in your own evidence- is that in sync with your rec?

Witness: yes

Awele: do you know security measures administrator of #NIIMS has put in place

Witness: I cannot answer that question- I give advice, decision is govt's

#HudumaNamba

Awele: is data encrypted?

Witness: assume yes

Awele: different standards? aware of advanced, current, recommended encryption standards in industry given sensitivity of this data? what would you recommend?

#HudumaNamba

Witness: depends on context

Awele: #NIIMS can include DNA, other sensitive data

Witness: you can oversecure a system and it affects the performance

Awele: is data sensitive enough to ignore cost implications in procurement of encryption?

Witness: no, depends on objectives

Awele: in your affidavit you recommend that data should be accessible to a wide variety of uses & that data should be shareable and centrally controlled and managed

#HudumaNamba

Awele: once the data leaves me, it is beyond my control what happens with my biometric data, digital data?

Witness: yes

Awele: taking that & sensitivity of info into account, by their very nature outweigh cost implications of best encryption standards

Witness: it's a balance

Awele: what if I say reasonable standards?

Witness: yes

Awele: encryption is assumed, what standard?

Witness: don't know

#HudumaNamba

Awele: you say standards should be in line with law/policy - if govt pre-defined, would it assuage some of the petitioners' concerns?

Witness: I would say yes

#HudumaNamba

Awele: you said in affidavit confidentiality & privacy cannot be guaranteed by technical standards?

Witness: better to look at privacy from 360 perspective not only technical standards

#HudumaNamba #NIIMS

Awele: so technical standards should be pre-defined? In order to ensure confidentiality?

Witness: yes

Awele: are@you aware of any policy or standards that sets this out re: #NIIMS?

Witness: I would think govt has..

Awele: do you know if any?

Witness: Heard of secrecy act

Awele: if law says can't disclose information, in IT world does it stop it from happening? Law prohibits murder, but have you heard a case of someone being murdered?

Witness: yes

Awele: so could law prevent unauthorized or internal govt staff from accessing data?

Witness: No

Awele: and that's why technical standards must be put in place?

Witness: they will

Awele: but you said you are not aware of any

Witness: yes

#HudumaNamba

Awele: re: procurement want neutrality to get the best systems?

Witness: want interoperability- maybe had a registry using its own standards than another registry - govt should have been operating as a unit, but has disparate info on identity

#HudumaNamba

Awele: do you understand the Ministry of Interior is accountable to the people of Kenya?

Witness: assume because part of govt

#HudumaNamba

Awele: you recommend audits to ensure security of systems at "acceptable level?"

Witness: yes

Awele: acceptable to who? Data controller or the owner of the data?

Witness: can you repeat the question?

Awele: (repeats)

Witness: to all the stakeholders involved

#HudumaNamba

Awele: are you aware of the standards set out for compliance?

Witness: no

Awele: so there is opaqueness, and you said standards should be acceptable to both govt and public... should standards be made public?

#HudumaNamba #NIIMS

Witness: should be able to track people in the system via logs..

Awele: let's take the analogy of financial audits, are you audited against public, known standards?

Witness: yes

Awele: so there can be some confidence in results of audit?

Witness: yes

#HudumaNamba

Awele: in your affidavit you say law and standards bring trust?

Witness: yes

Awele: aware of any public standards?

Witness: no, assume govt has

Awele: aware of any?

Witness: no

#HudumaNamba

Witness: can't lay out entire security system

Awele: not to even put standards out there?

Witness: can't publish all security measures used

Awele: if you share standards against which #NIIMS should at all times operate?

Witness: that is reasonable

#HudumaNamba

Awele: you stated govt has "unfettered discretion" to determine form and content of a population register?

Witness: yes

Awele: can that only mirror kit used to put into the register? at some point that information has to come from somewhere?

Witness: yes

#HudumaNamba

Awele: so it is the data capture form that would populate the register? Have you seen a data capture form for #NIIMS?

Witness: I interacted with one

Awele points to form in PS Ochieng's affidavit

Witness: interacted with it as a citizen

#HudumaNamba

Awele: in your affidavit you refer to a data capture form - is it this one?

Witness: presume so

Awele: look through form - any other biometric data other than fingerprints?

Witness: no

#HudumaNamba

Awele: in affidavit you say can't prove identity w/out providing a certain amount of personal data inc biometrics - plus unfettered discretion - so is this form "sufficient information" for purposes of #NIIMS?

Witness: at the moment, I guess yes

#HudumaNamba

Awele: Would you agree any other information not there is not necessary?

Witness: no... if they collect this info and it provides certainty, it's sufficient

#HudumaNamba

Awele: and this is limited biometric data, so for now this is sufficient?

Witness: yes

Awele: so all other data points are superfluous?

#HudumaNamba

Witness: no, because it would contradict trying to get the system to deterministic level to correctly identify everyone - if this gives results they require, it's enough - or, get more data points

#HudumaNamba

Awele: so nothing means govt can't collect other information under section 3 at any time in the future, including DNA?

Witness: if it's in the law they can collect it

#HudumaNamba

Awele: on what basis did you draw conclusion #NIIMS is neither centralized or decentralized?

Witness: look at contextual, logical, technical, operational architecture - in large systems can't oversimplify some of these concepts

#HudumaNamba

Awele: whether centralized or decentralized, can be breached?

Witness: yes

Witness explains various technologies that could help

Awele: but you haven't seen the system?

Witness: no

#HudumaNamba

Awele: but you can make some assumptions based on your technical expertise?

Witness: yes

Awele: so would you say the common Mwananchi - the lay man in Kenya - cannot understand what #NIIMS is without publicly available information?

#HudumaNamba

Awele: so you would agree you are in a priveleged position compared to most of the people in this court room?

Witness: yes

Awele: if you were in their position, you might have the same concerns they brought in this case?

Witness: (doesn't dispute)

#HudumaNamba

Awele: do you know who developed #NIIMS?

Witness: no

Awele: it was developed with input of various ministries?

Witness: yes and good b/c context

Awele: who is administrator of #NIIMS?

Witness: PS Interior

#HudumaNamba

Awele: So PS was involved in creation & is now administrator?

Witness: yes

Awele: for NIIMS to operate as intended and given sensitivity of the info, is it best practice to have independent oversight?

#HudumaNamba

Witness: I assume that happens in govt

Awele: good practice?

Witness: yes, checks and balances

#HudumaNamba

Awele: did you register for #HudumaNamba?

Witness: yes

Awele: if info you provided is breached, does #NIIMS have capability to notify you?

Witness: assume... logs...

Awele: go back to common person, you advised on #NIIMS - can it notify you?

Witness: it's a balance question

#HudumaNamba

Awele: if you provided your DNA and that is given to a third party to determine your ethnicity, your lineage, your criminal dispositions... would you want to know?

#HudumaNamba

Witness: yes

Awele: does #NIIMS have that capability? What are chances administrator would notify you?

Witness: speaking of unauthorized access, a hack... the system might not know it's being hacked

Awele: not hack - intentional sharing of personal information

#HudumaNamba

Awele: Under law, administrator has wide power to share data? Would he notify you?

Counsel for respondents objections - speculative question

Awele - trying to use logic based on expertise of witness

#HudumaNamba

After some back and forth, Awele concedes and drops the question

Awele has finished cross-examination

Counsel for respondents indicates he will take 1 hour for re-examination, then clarifies "one hour plus or minus 15 mins"

#HudumaNamba

Court decides to adjourn until 2:30pm, when re-examination will begin

#HudumaNamba #NIIMS

Proceedings in the #HudumaNamba & #NIIMS case are about to resume, starting with re-examination of witness for the respondents Mr. Brian Omwenga

Counsel for the respondents asks witness if he registered for NIIMS

Witness confirms

Counsel: "was your blood sample taken for DNA?"

Witness: no

#HudumaNamba

Witness: Centralized system means the "heart" is in one place, decentralized has distributed nodes

Counsel: in terms of data protection - which if at all offers better security?

Witness: easier to secure a centralized system

#HudumaNamba

Counsel: difference between probabilistic and deterministic system?

Witness: Probabilistic is based on likelihood and deterministic on certitude

#HudumaNamba

Counsel: Is #NIIMS a system that renders identity or identification?

Witness: both - and need precise identity to assist in precise identification

#HudumaNamba

Counsel: would you expect to have information on system architecture in the public domain?

Witness: for purposes of security it's good practice not to publish how you implement security - like not publishing blueprint - keep "some of" your blueprints secret

#HudumaNamba

Witness: Principles guide architecture - basis of making one decision over another

Counsel: so principles could be made public, not algorithms?

Witness: I would say that would be good

#HudumaNamba

Counsel: you gave advice on #NIIMS, does it have sufficient measures to protect against misuse?

Witness: Based on the advice I gave them I would say yes, for the moment yes

#HudumaNamba

Counsel: you have done some work for govt, how many projects?

Witness: I would say four

Re: affidavit used in IEBC case

Witness: scope of the project at that time was wide on ICT - data security, results transmission; for case I had been involved in ICT issues so was asked

Counsel: What do you need to do de-duplication?

Witness: data and an algorithm

Counsel: Do you know who wrote the software for #NIIMS?

Witness: I have absolutely no idea

#HudumaNamba

Witness: For de-duplication, you want a precise identity

You search on an item that gives a level of uniqueness & if processing that item like a fingerprint is probabilistic the result is too - if item is deterministic like date of birth, result is deterministic

#HudumaNamba

Witness assumes Kenyans have unique ID numbers and comparing those would be deterministic

In his understanding, combining that with multi modal biometrics or additional data points makes a better system

#HudumaNamba

Counsel: combination of biometric and biographical information gives better result?

Witness: yes

#HudumaNamba

Witness: There is technology as it is right now that doesn't require you to link one piece of information to another

Govt had task force on block chain even before the United States - we as experts in this country are up to date and we believe govt listens to advice we give

Judge asks counsel to ask the question again - how would you resolve question of data breaches?

Witness: set up technical implementations like firewalls, DMZ, there are many things - but it must be done continuously, it's not something you can completely do in just one moment

Counsel: Can you eliminate risk of breach, at least substantially?

Witness: Will echo the words of the other witness and agree with him on this - if you want a completely secure system, don't turn it on

Counsel: Which other witness?

Witness: Anand @iam_anandv

#HudumaNamba

Witness continues: If digital remains an option for us, security and monitoring is an ongoing process

#HudumaNamba

Counsel: Does #NIIMS project secure data?

Witness: Based on the advice I've given, for the moment, the implementation of that advice would give you fairly good security of the system

Counsel: are you aware if advice used?

Witness: govt takes advice seriously

#HudumaNamba

Counsel: you were shown the form - were you involved in the development of the form?

Witness: no

Counsel: do you know considerations taken into account for the form?

Witness: no

#HudumaNamba

Witness: Administrator owns and runs the system, the designer puts it together - you are the administrator of your laptop but it's put together by experts

#HudumaNamba

Counsel: Administrator is PS - would that be separate from design?

Witness: Operationally yes, but at the level of design, he can give his needs "I need the system to do this"

#HudumaNamba

"I don't think it's a genius idea" it's something the government maybe has considered for a long time - re: consolidating databases

#HudumaNamba

Witness speaking about potential benefits - ghost workers is an identification problem, if have a single source of truth you can streamline

#HudumaNamba

Witness: many govt agencies give cards - NHIF, NSSF, ID - each has a different budget

"If it is done well - if it is actually done well and it gives you accuracy - you wouldn't have to register people again and it would generate savings"

#HudumaNamba

Counsel refers witness to amendments to Reg of Persons Act and the definition of biometric

"in digital form" - is that a benefit?

Witness: if it's in digital form it's easier to process - matching, sorting is done by machines better than humans

#HudumaNamba

Counsel: you were asked about personal sensitive data - was it in possession of govt before #NIIMS?

Witness: yes

Counsel: issue is digitization of that data?

Witness: yes

Counsel: EU regulations - who is governed?

Witness: EU countries - Germany, France

Counsel: would unique circumstances in Kenya be important in formulating our own rules?

Witness: the system always follows context - need system customized to our needs

#HudumaNamba #GDPR

Counsel asks what witness thinks about local talent, as discussed by witness Anand

Counsel for petitioners @yussufugas objects this was outside scope of cross-examination & that questions have been repeatedly leading

#HudumaNamba

Court reminds counsel to refer specifically to areas questioned and also point about leading questions is taken

Counsel asks if witness believes country has competence

Witness says yes and even census was conducted by local company

#HudumaNamba

Counsel refers to witness @iam_anandv's first concern about purpose-free architecture

Witness: "I believe that is a bit far-fetched - purpose is to be a single source of truth for identification"

#HudumaNamba

Counsel asks witness to comment on data capture form, even though they just discussed he is not in a position to discuss the content of the form or considerations that were taken in account in its creation

#HudumaNamba

Witness @brianomwenga says he thinks you wouldn't be denied enrollment if you didn't have fingerprints because they could take your photo - so exclusion isn't present

#HudumaNamba

Witness remarks: People give data to companies like Google or can choose not to access - so if people want to refrain from giving info to govt "I believe they shouldn't get services"

He says "it's exclusion by choice"

#HudumaNamba

Re-examination of Mr. Omwenga has concluded

Justice Mumbi asks a clarifying question about centralized vs decentralized

Witness: Operation is central because "single source" - you go to one place, but backend can take any form based on fitness of purpose

#HudumaNamba

Cross-examination of the second witness for the respondents, Mr. Muchemi, will now begin

Counsel for the respondents will first introduce the witness

#HudumaNamba

The witness is explaining his academic background - including a Master's from UC Berkeley in Public Management

He does consultancies on business transformations and technology for various clients

#HudumaNamba

He was asked to do a SWOT analysis of the registration system

He is asked about the weaknesses he identified in the report but counsel @waikwawanyoike objects this is going into evidence

Judges ask counsel to focus on the experience of the witness not a report summary

The introduction has finished and cross-examination, led by @waikwawanyoike, has now commenced

#HudumaNamba

The witness is asked about being Chairman of the Presidential Digital Talent Programme (PDTP), which the witness describes as an "initiative under the Ministry of ICT"

The witness is a board member of the Kenya Broadcasting Corporation, appointed by Ministry of ICT

#HudumaNamba

The witness is asked if he is a public officer - the witness does not know the law regarding who is considered a public officer

#HudumaNamba

The questions move to the SWOT analysis contained in PS Jerome Ochieng's affidavit

Counsel: would you say your only connection with #NIIMS is through the SWOT report?

Witness confirms

Counsel: competed in 2017?

#HudumaNamba

Witness confirms

Counsel: that was way before he establishment of #NIIMS?

Witness: yes I think so

Counsel: so last interaction was in 2017?

Witness: I did register (for #HudumaNamba)

Counsel: knowledge of NIIMS limited to SWOT report?

Witness confirms

Counsel: You have not done any study on NIIMS since it was established?

Witness: no

Counsel: you are not involved in NIIMS implementation?

Witness: no

You have never helped a govt set up a NIIMS-type architecture?

Witness: no

#HudumaNamba

Counsel: can you comment on whether NIIMS is centralized or decentralized?

Witness: I can in a general form

Counsel: which is NIIMS?

Witness: To my knowledge, #NIIMS is centralized - this comes from recommendations from the report

#HudumaNamba

Counsel: does metadata have the same concept as logs?

Witness: yes

Counsel: under #NIIMS in seeking services will you leave logs?

Witness: I don't know because I don't know how it works

#HudumaNamba

Counsel asks questions about the way Estonia registers births and assigns a unique identifier, as discussed in the report

#HudumaNamba

Counsel: Would you agree that what you had in mind was similar to what was discussed about Estonia?

Witness confirms

Greatest objective was universal birth registration - trying to capture all children at birth?

Witness: one of the objectives

#HudumaNamba

Counsel: The government has not implemented this, correct?

Witness: If you register for a birth certificate you get a unique number on the birth certificate

Counsel: should work in the same way as in Estonia?

Witness: conceptually yes

#HudumaNamba

Counsel: In your statement you say manual labor is "unlikely to distortion of all fingerprints" - unlikely, so it's possible?

Witness: It's possible

Counsel: so if you rely on fingerprints, it's possible someone may not be able to provide?

Witness: you would be able to

Counsel: how did you arrive at these conclusions? no references, no study, correct?

Witness: correct

Counsel: and you're not an expert on fingerprinting?

Witness: no

#HudumaNamba

Counsel: You registered for HudumaNamba, I assume you are Kenyan - how would you prove you are Kenyan?

Witness: my ID

Counsel: anything else?

Witness: passport & birth cert

#HudumaNamba

Counsel: are you aware birth certificates are not proof of citizenship?

Witness: I'm not aware

Counsel: are you aware how NIIMS will determine identity?

Witness: I am not aware

#HudumaNamba

Counsel: to register for #HudumaNamba, must you produce an ID or passport?

Witness: I am not aware

Questions turn to de-duplication - assume there are two people with the same name using the data capture form - can the system tell the difference?

Ideally yes

If the only info you provide is names?

If exactly the same names - it won't

Add a field - address/county

Witness: Then it could

Counsel: can the system say if someone is a citizen if no information on whether they are a citizen has been fed into the system?

Witness: it can't

#HudumaNamba

Counsel: when you did this report you took human rights into account?

Witness: yes

Counsel: if I was to put it to you that there may be children who may not be rescosgerwd or given the proper identity would that be fair?

#HudumaNamba

Witness asks for re-phrase

Counsel: is there an acceptable percentage of people who should be excluded from the system?

Witness: I can't comment

Counsel: from a rights perspective, do you have an opinion?

#HudumaNamba

Witness: system should be inclusive of everyone in the country

Counsel: would system that doesn't do this be unfair?

Witness: can't comment

#HudumaNamba

Counsel for petitioners have indicated they have no further questions for the witness

Re-examination by counsel for the respondents has started

#HudumaNamba