ANOTHER QUESTIONABLE AD CAMPAIGN FROM KFC

Regular readers will recall this bloggers post, here, about KFC's ad campaign that was certainly tasteless and flirted with consumer protection laws. Well, the marketing team at KFC is at it again, this time flirting with trademark law.

On a street in Nairobi can be seen an ad encouraging customers to "Come in your shorts and crocs", with a signboard a few dozen meters down the road that reads "We won't judge."

The word mark "Crocs" was submitted by Crocs, Inc., a Delaware Corporation, for trademark protection at the Kenyan Industrial Property Institute (search for "crocs" at this link for more info about the advertised marks) in 2011.

Photo credits: Abdulmalik Sugow

Photo credits: Abdulmalik Sugow

So, KFC is using the registered trademark of another company in a commercial activity - i.e., their advertising campaign. This is not per se infringement, but it raises some issues.

1. Is KFC stating, implicitly or explicitly, that Crocs, Inc. has endorsed their product?  This blogger thinks the answer is probably "no" based on the context of the use. Nothing from the ads would seem to indicate that there is an endorsement.

2. Is KFC diluting or tarnishing the Crocs trademark? This question is a bit harder to answer. The implication by the ads is that you can go to a KFC in any state of dress, even wearing a super casual outfit or one that is not suitable for being seen in public (adults in Nairobi are almost never seen in public wearing shorts).  Is this disparaging on the Crocs trademark?  Certainly Crocs are known for comfort and are not generally considered formal attire, so perhaps it is in line with the brand that Crocs, Inc. seeks to portray. Nevertheless it seems that Crocs, Inc. should be the (only) one deciding the reputation they seek, independent of any advertising campaign of other companies.

3. Is KFC taking unfair advantage of the Crocs trademark? Perhaps here the answer is also "no" since there would seem to be no direct relationship between a croc and fried chicken (even if, as it has been reported, crocodile meat tastes like chicken). On the other hand, KFC is clearly trying to associate itself with the casual/relaxed reputation earned by the footwear at issue.

In conclusion, this blogger appreciates the activities of KFC only insofar as they allow speculation as to the limits of IP law.

This was first posted on Afro-IP.

TIME FOR A SUI GENERIS TECHNOLOGY IMPORTATION RIGHT?

At the Intellectual Property Law Clinic in Nairobi, the following inquiry is a very frequent occurrence: "I saw technology X in foreign country Y, and it doesn't exist here in Kenya. I'd like to invest time and money in bringing the necessary equipment from abroad in order to practice this technology method (or make and sell this product) locally. Can I get any protection for that?"

The answer is always the same. No.

(Although, technically, the answer is yes. Since Utility Model Certificates are not substantively examined, a UMC could be obtained for the imported technology, although presumably such UMC would be invalid if the UMC holder ever tried to enforce it.)

The "No" answer is always very frustrating to the client, and this blogger has seen several business fail to launch simply because the would-be proprietor (read: tech transfer agent) decides it's not worth the effort since there is no exclusivity of any kind.

So this blogger has been thinking, and proposes the following concept for discussion. What if we granted a very limited exclusivity period for someone who imports a technology that exists elsewhere but (demonstrably) doesn't exist locally? Maybe the promise of 3 years exclusivity would encourage more tech transfer into the country, and would encourage local innovation as well (particularly as people observe the technology in the local context and brainstorm ways to improve the local experience)? 

Perhaps it's time to create a form of IPR that removes the absolute worldwide novelty requirement in exchange for a drastically reduced period of exclusivity. 

Reader thoughts?

This was first posted on Afro-IP.

NUANCES OF PATENTS AND TK

A recent article in the Mail & Guardian (here) claims that the European Patent Office recognizes Jans Roosjen, a Dutch man, as the "inventor" of teff flour and associated food products.  The article also states "Roosjen also has a patent for the “invention” in the United States — though he is patently not the inventor of a product that has been around for millennia."

As is almost always the case when it comes to patents, the situation is not as straight forward as this article makes it seem.

This blogger found EPO patent EP1646287 (B1) (access it here), with the above named inventor, and the title "Processing of Teff Flour".

Claim 1 of the patent is directed to "A flour of a grain belonging to the genus Eragrostis, preferably Eragrostis tef, characterized in that the falling number of the grain at the moment of grinding is at least 250, preferably at least 300, more preferably at least 340, most preferably at least 380." In short, then, this patent doesn't cover "teff flour and associated food products" except in the case that the flour has a "falling number" greater than 250.

Without getting too technical, here's an excerpt from the patent description to explain the falling number: "The falling number obtained relates to the amount of undigested sugars in the starch. The higher the falling number, the lower the alpha-amylase activity and the fewer digested sugars are present in the grain." In less technical terms, the higher falling number apparently allows the teff products to be used in making products with more "stability" and less of an "unattractive taste and/or structure."

Interestingly, it seems that the falling number can be increased simply by storing the teff post-harvest for at least several weeks.

Regarding traditional uses of teff, the patent background section states the following: "This crop has been cultivated for human consumption in mainly Ethiopia and Eritrea for more than 5000 years...  Teff flour is traditionally used for preparing injera, a spongelike, gray pancake with a somewhat sourish taste. Injera is usually made from a flour mixture consisting of equal parts of Teff flour and wheat flour diluted with water and yeast. The diluted flour mixture is usually fermented for three to four days before it is baked."

Patented teff?  Tough call. 

As for the US case, there are no related granted patents but there is a published application.  The application was abandoned in 2013 (USPTO data - see here), so there are no patent rights in the US.

There are no related patents on the African continent (according to EspaceNet data), although Ethiopia is not a member of the PCT so this blogger was not able to determine whether a related Ethiopia application was filed.

So, is injera patented?  Despite the broad statements in the Mail & Guardian article, traditional injera is not patented, as it is described as prior art in the background section of the granted patent. Instead, injera made from a very specific form of teff flour, with a specific property obtained by weeks-long storage of the teff post-harvest, is patented in Europe.

Is this an exercise of hair-splitting (or, more appropriately, teff splitting)? Possibly. This blogger finds it hard to believe that no Ethiopian prior to 2003 ever made injera with teff that had been stored for a few months. Of course, the question is actually whether such a process is documented - i.e., contained in the prior art. The simplest way forward, then, is for someone (e.g., the Ethiopian patent office) to find a reference from prior to 2003 that describes the use of stored flour in making teff. As this blogger understands EPO practice, national-level court cases would now be required to use such a reference (if found) in invalidating the patent. 

This was first posted on Afro-IP.

CELEBRATING(?) PATENTS, BY THE NUMBERS

For those of you too busy (watching football, perhaps...) to notice, the 10 millionth US patent was granted last Tuesday (US patents are always granted on Tuesdays, by the way).  This blogger would like to take the momentous occasion to look at some numbers.

The first US patent was granted in 1836. It took about 150 years for the US to grant the first five million patents, and less than 30 years to grant the next five million. It took just over 3 years (38 months, precisely) to grant the most recent million patents. That's an average of 26,315 patents per month, or 6,100 patents per week.

On 30 April 2018, ARIPO recently granted AP4556, the highest number this blogger could find. The earliest ARIPO patents granted in 1987. Although it has taken 31 years to grant 4556 patents, the last 1000 patents were granted in just the last 2.5 years (i.e., about 33 per month). The halfway point, AP2278, was granted in 2011, less than seven years ago. So the numbers in ARIPO are also showing a dramatic increase.

In Kenya, the most recent patent available to this blogger is KE789, granted in February 2018. The first Kenyan patent was granted in 1994, resulting in an average of 33 patents granted over 24 years. As with the US and ARIPO, grants were increasing in Kenya until about 2012. Interestingly, however, the number of grants in Kenya has been declining year-on-year since that peak year. Here are some of the numbers: 43 granted in 2017, 37 granted in 2016, 22 granted in 2015, 53 granted in 2014, 70 granted in 2013, 76 granted in 2012, 63 granted in 2011, and 53 granted in 2010.

As this blogger has said many times before on this blog and elsewhere, the number of patents is a poor measure of innovation in ARIPO and Kenya (and, presumably, most or all of Africa). There are also many other factors that affect grant rate, from population and GDP to culture and tradition. Nevertheless, it is striking to see a per-week grant rate that is more than three orders of magnitude larger in the US compared with African offices.



This was first posted on Afro-IP.

HOW TO ENCOURAGE INNOVATION?

The Government of Rwanda (GoR) has sought and now received a very large amount of money to stimulate local innovation. The African Development Bank (AfDB) has pledged 30 million USD to be used by the GoR to support innovation and the innovation economy; essentially, the AfDB and the GoR is now the largest source of venture capital available to SMEs and others in the innovation economy.   The idea behind the fund is to attract additional funding through private investors and to "develop sustainable innovation ecosystems, spur entrepreneurial growth, address funding gaps, reduce poverty, and promote socio-economic growth." The news is reported here among other places.

This move is entirely consistent with other actions taken in Rwanda, where a great degree of government involvement is typical. It is also somewhat in contrast with neighbouring Kenya, where government involvement takes a back seat (relatively speaking) to private initiatives.  This blogger is not taking any position as to which model works "better", but does wish to take the opportunity to suggest a solution to a long-discussed challenge to innovators in the region.

Two things are pretty well established: (1) there is very low utilisation of formal IP systems in East Africa (Kenya has fewer than 1000 locally granted patents, and registers fewer than 500 copyrights yearly); and (2) there is substantially more innovation occurring in the region than would be suggested by looking only at the low utilisation of formal IP systems.

Some people have suggested that formal ("western") notions of IP are not appropriate for the traditional culture of "Africa" (whatever that means). This relies on a belief that African innovators are always willing to share their ideas openly for the good of the community. In this blogger's experience, this belief sounds great but is almost universally untrue. Most innovators are intrigued by the concept of a system with no formal IP, until, that is, they observe or perceive the theft (i.e., unattributed use) of one of their own innovative ideas.

There is substantial merit in the idea of a system that is not bogged down by overuse of formal IP (e.g., patent thickets, patent trolls, etc.). How, though, do you reward innovators without stifling the innovative economy?

This blogger proposes that the GoR should use the funding (in part) and offer to buy patents from innovators. For example, offer a fixed amount (e.g., $1000, or $5000) to buy any granted patent or utility model filed by a local applicant, regardless of the commercial viability of the patented invention. For this to work, however, the GoR must also pledge that it will never enforce and never re-sell any of the patents that it buys.

This proposed scheme would incentivise innovation, would immediately release the innovation to the public, and would still allow flexibility - e.g., the patentee can decide to sell the patent for a quick profit or can keep the patent and attempt to commercialise the invention using traditional methods.  Everybody wins! 







This was first posted on Afro-IP.

BLOCKCHAIN - STILL A BUZZWORD BUT COULD IT SAVE THE MUSIC INDUSTRY?

A very recent post over on our favourite companion blog IPKat (Kats are, after all, mini-Leos) discusses blockchain in the context of what blockchain can do for IP. A very nice quote from the piece: "Blockchain need not be limited to patents; it might also be used in the field of copyright-protected works... [B]lockchain could provide a platform for the registration of copyright transfers  (not otherwise registered) facilitating parties interested in entering into a licensing agreement, thereby significantly reducing transaction costs." 

Well, that statement got this once-Leo (i.e., once a big Kat but now blogging more as a giraffe) thinking about another article, here, that is written by a musician (Imogen Heap) and similarly calls for the use of blockchain to help the music industry. Citing the lack of a global registry of works, Heap believes that blockchain would enable simplified licensing schemes and would streamline operations of CMOs and others in the industry.

In fact Heap tested the concept, releasing a song (Tiny Human, which this blogger admits to having never heard) and using smart contracts on the Ethereum blockchain platform to automatically distribute royalty payments to all those involved in making the song. It seems this was a success, albeit on a small scale.

My favorite quote from Heap is as true in the blockchain context as it has been true for so many other technological advancements (think radio, cassette tapes, MP3 players, etc.): "The larger players in the industry just need to have faith that they will make more money by doing the right thing — which would lead to fair remuneration, transparency, and a multitude of new business opportunities for artists."

There seems to be no limit to the variety of applications for which blockchain is now cited as an industry-revolutionising development. Certainly CMOs in this giraffe's neck of the woods (boo!) could use help in developing transparent, efficient, and fair collection/distribution of royalties - the recent change in CMOs licensed in Kenya is evidence (see here and here). Is blockchain the right technology for this challenge?  We may soon see...

This was first posted on Afro-IP.

NET NEUTRALITY IS DEAD. LONG LIVE NET NEUTRALITY!

Our dear readers are probably by now aware that the United States Federal Communication Commission (FCC) voted (along party lines, incidentally) to end net neutrality rules put in place during the Obama presidency. See here, for example.

The decision was highly controversial, with over 20 million comments submitted during the public comment period. Most executive branch actions in the US attract far less interest. There are, however, reports that a large percentage of those comments were "fake" - e.g., not from verifiable sources or from duplicate sources.

Given that the US is a major driving force behind worldwide internet policy, does this decision mean the end of net neutrality as we know it?  Not so fast!  There may be hope yet.

Much of the governmental structure in the US is devolved to the individual States, and states can often direct national policy if they act with some degree of unity. It was with great interest to this blogger, then, when certain states began pushing back on the decision of the FCC. For example, in January, six states (including, not surprisingly, California and New York) introduced bills into the state legislatures that would require net neutrality for operators and activities in those states. In addition, the attorneys general from 22 states have sued the FCC to block the change in the net neutrality rules.

What would happen if, say, California (with a population of 40 million people and a "GDP" of $2.5 trillion, which would make it the 8th largest economy in the world if it were a country) passes a net neutrality law?  It is likely possible (technologically speaking) to have different positions on net neutrality in different states, but is such a situation politically or socially acceptable? Does the adage "as California goes, so goes the US" apply here?

California leads the nation in other areas such as climate change mitigation policy and petrol consumption standards, so it is not hard to imagine that the national rules on net neutrality may be dictated to a large degree by the actions of California legislators.

2017 saw the death of net neutrality. But 2018 will see quite a fight for its rebirth!  We will be watching this space closely...

This was first posted on Afro-IP.

A QUESTIONABLE AD CAMPAIGN FROM KFC

Some new advertising signs have been appearing in Nairobi. An ad campaign for KFC (technically, the authorised KFC franchisee is Kuku Foods East Africa Holdings Ltd.) involves images of fried chicken meals next to highly praising quotations attributed to "Obama", "Kanye", and "Oprah". A close inspection reveals that these quotes are actually from "Jammo Obama" and "Kanye Otieno", presumably fictional individuals.

The layout of the ad is clearly meant to obscure the names "Jammo" and "Otieno" - these are balanced by opposing solid lines so as to minimise their impact on the viewer.

These ads play dangerously with the law.  Kenya's Competition Act 2010, section 55(a)(v), prohibits false representations that "goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have." Kenya's Consumer Protection Act 2012 has a similar provision.

Notwithstanding that the ads do not in fact state that Barack Obama or Kanye West have endorsed KFC, there is a very clear intention that the target audience is meant to have such endorsements as an immediate first impression. The layout of the ads require a viewer to look very closely in order to see the full names of the endorsement. The ads are positioned to be prominently displayed to motorists (for which close inspection is difficult or impossible, as Nairobi roads demand a high level of attention!).

Several people have recently asked this blogger whether it's illegal to attribute false statements to American celebrities in Kenyan ads. They only realised that this was not in fact occurring when they were told to look more closely at the names on the signs.

This is an example where a factually accurate advertisement is nevertheless misleading (and in this case, seemingly, intentionally misleading).  A similar situation of misleading yet factual advertising occurred when Orange Kenya was compelled to withdraw or change advertisements comparing their mobile calling rates with those of Safaricom.

But what of the IP angle? 

Kenya has no law on image rights, but trademark law may apply. A quick search of an online TM database indicates that Obama and Kanye have probably not filed for TM protection in Kenya (although, interestingly, "Oprah" has been registered in Class 26 for hair pieces and wigs).  So there is no infringement of a registered TM, but could there be passing off?  A UK recently court foundthat unauthorised t-shirts bearing Rihanna's picture was passing off. Perhaps the question here, then, is whether KFC's ads are likely to mislead the public to believe that Obama or Kanye or Oprah said these statements.

Is it illegal?  Perhaps so, although this blogger would want the Advertising Standards Body of Kenya (ASBK) to have their say.  In any case, is it distasteful?  Most definitely.  





This was first posted on Afro-IP.

THE REPORTS OF THE DEATH OF INNOVATION ARE SOMEWHAT EXAGGERATED...

This recent article from Kenya inspired this Twiga (Swahili for Giraffe) blogger to write, after a long silence.

The article asks why innovation died in Kenya sometime around 1985, and proposes a number of possible contributing factors. It's really quite insightful and thought-provoking, and many of the points are worth exploration.

As a proxy for innovation, the article cites to the number of patents ("registrations"), and compares registrations in Kenya with registrations in China. The number of patents is a standard measure of innovation in developed countries, but numerous studies have shown that it is indeed a poor measure of innovation in developing countries. See, for example, this (free to download) book published by OpenAIR researchers.

That said, the numbers are even worse than the article provides. On average, fewer than 10 Kenyan patents are granted to local inventors each year.  The total number of Kenyan patents granted to local inventors since KIPI began granting patents in 1994 is below 100. Of those 100, fewer than 20 are still valid and enforceable (i.e., are up to date on annual fee payments). But as pointed out in the OpenAIR research, most innovations and innovators never find their way to the patent office.

So, although one can dispute the measurement selected for supporting the assertion that innovation in Kenya is dead, some of the reasoning behind the assertion is really quite insightful.

For example, the author states that "China invested in Science and Technology with more students taking STEM (science, technology, engineering and mathematics) and reserving 2.05 per cent of GDP going to R&D in 2015 compared with Kenya’s 0.79 per cent (2010 data)." This data for Kenya is quite right - although Kenya has a National Research Fund that is supposed to receive 2 per cent of GDP from Government sources and is for funding R&D, we are not close to actually spending that amount. One reason given for the shortfall is that R&D institutions (primarily Universities) cannot absorb that level of funding. The fund is only a few years old so we shall continue to monitor the level of funding.

The author states "I will never get tired of asking why drama festival winners visit State House and not science congress winners" and, to explain this situation, posits: "One suggestion is that our policy makers are mostly social scientists who see science and technology as a nuisance and boring. This shunning of science and technology experts on the high table starts in secondary school and is reflected all the way to the presidency. How many governors, MCAs, MPs, senators or women reps are scientists?"

This blogger, originally a scientist by training but now a lawyer, shouts with glee ("Eureka!") at this insight. It is so very true, and so very sad.  The current President of Mauritius, Ameenah Gurib, is an accomplished scientist, but is notable precisely because scientists so rarely hold high office, particularly in Africa. Without a doubt the background of a leader influences how that leader thinks and leads, and how various fields are prioritized.

The author questions: "Does the President of Kenya have a Science and Technology policy adviser, we know of political and education advisers?" This blogger does not know of one and requests input from readers. If there is none, what a shame! To truly be the "silicon savannah" or, at any rate, a hotbed of innovation, the top leaders must have close advisors that understand these issues.

We should celebrate the innovation that is occurring here, even while we question the priorities that are set by government.

This was first posted on Afro-IP.

CROWD-SOURCING INFORMATION ON CMOS

From Ifeoluwa Olubiyi, a Phd Research Fellow at the University of Ilorin, Nigeria, we have received the following survey questions:

1. Does the copyright law in your jurisdiction prohibit multiple collecting management organisation or collecting societies for a class of works?

2. Section 39(3) of the Nigerian Copyright Act provides that the Nigerian Copyright Commission shall not approve another collecting society (CMO) in respect of any class of copyright owners if it is satisfied that an existing approved society adequately protects the interests of that class of copyright owners. This provision has led to litigations in Nigeria by a CMO, Musical Collecting Society of Nigeria, which was unable to get the approval of the Commission to operate as an approved collecting society for musical works where it sought to invalidate this provision.
Is there such similar provision in the copyright law in your jurisdiction?

3. Are there any judicial decisions on or interpreting this provision or relating it to other legislations such as the constitution in your jurisdiction?

4. How justifiable is such a provision in the light of international copyright treaties particularly the TRIPS Agreement and the Berne Convention?

You can answer in the comments to this blog or, if you email this blogger, an email exchange can be arranged.
Thanks in advance!

This was first posted on Afro-IP.

THE "SHARING ECONOMY" - IN PERSPECTIVE

For practitioners and academics in IP law in Kenya, the following questions are asked all the time: "Isn't IP fairly irrelevant in Africa? After all, African societies are based on sharing and community." It's an uncomfortable inquiry, and has been a struggle to answer, perhaps until now.

At a recent party, this Leo observed from a distance his 7-yr old cub playing with friends. At one point a ball changed hands between children, and Mama Leo smiled to me and said "Look how well he is sharing!" I walked over to praise him and, to my surprise, found him crying. "That kid stole my ball!"

A sharing economy is fine, if it's voluntary sharing. Involuntary sharing is more properly called theft. The difference between "sharing" and "theft" can be obscured by distance or ignorance.

When people look at Kenya and say we should forget traditional types of IP because of our sharing traditions, almost invariably such people are not inventors who have had their own ideas taken and commercialized with no beneficial return for their efforts. In theory, we would all love to have a sharing economy, but in practice, when it is your hard work that is "shared" without your permission, IP law starts to sound pretty necessary. In matters of IP, perspective matters.

This is not to say that there is no place for sharing. The Fremium model is well known as a successful business model for music, software, and other items. Open source and Creative Commons licenses have been successfully used to build large and thriving businesses. These models work in Kenya just as well as they work in the US and EU. The important point is that such sharing should be voluntary and intentional, rather than imposed because of an expectation for a particular society.

This was first posted on Afro-IP.

WILL WE EVER KNOW WHO INVENTED MPESA?

Quite frequently, someone will come to our IP Clinic claiming to have invented MPesa, the first widespread mobile money transfer system. Some even bring evidence supporting their claim. We've heard quite a number of stories - it was invented by a student at the University of Nairobi, or by a student in Nigeria, or by this or that entrepreneur, or by Vodafone in Germany (and merely tested in Kenya due to lack of regulations), etc.  Some are upset that their IP was 'stolen' but others merely want recognition for their 'invention.'

The reality, if the Wikipedia page can be trusted, seems quite a bit more complicated - many people and entities appear to be involved.

While searching for something else, though, this blogger came across this US patent application, which describes an "electronic purse" that seems suspiciously a lot like MPesa. The priority date is 2003. It's not exactly the same, but clearly people were thinking about this technology over a decade ago and at least three years before MPesa was launched.

Many people have said that MPesa was/is an example that supports software patents - had it been patented, the theory goes, it would be very easy to identify the true inventor and that person/entity would be making tons of money. This blogger believes the opposite is more accurate - had it been patented, there wouldn't be competitor services in Kenya (there are currently several), quality and service would suffer, and prices would be higher. Considering that a major reason for MPesa was to help the "unbanked", such a result would be quite unfortunate.

Lion share (source here)

Some would argue, however (and this blogger would probably agree), that even without patent protection, MPesa's lion-share of the industry effectively results in the negative outcomes mentioned above. 






This was first posted on Afro-IP.

MORE ON UTILITY MODELS

This blogger's favorite subject seems to be Utility Model Certificates (UMCs, see previous post here), and feels a few statistics are worth noting.

In May 2014 the Kenyan patent office (KIPI) ceased substantive examination of UMCs (the announcement is on page iv of the KIPI journal linked here). All UMCs granted after that date were subjected only to a formalities examination - exactly like the patent system in South Africa.

Between July 1993 and May 2014, KIPI examined 254 applications and, from those, granted 51 UMCs. This represents a 20% allowance rate.

In the year from May 2014 to May 2015, KIPI granted 40 UMCs, all of which are unexamined for substance. Assuming that the quality of such applications is roughly unchanged, this means that 80% (about 32) of those UMCs are likely to be invalid for one reason or another.

Flood gates, opened!
(Source: Getty Images)

This blogger is currently researching whether UMCs are effective means of protecting innovations. Surely, though, the above figures ought to raise a red flag to lawmakers, IP practitioners, and, ultimately, those in businesses who might be hauled into court for infringing a UMC that has an 80% chance of being invalid....




This was first posted on Afro-IP.

OVERREACHING SURVEILLANCE IN THE MOST EXTREME

From Kenya comes news (here and here) that has really blown this blogger away, twice!

First, the Communication Authority of Kenya (CA), the government regulatory body, has issued a directive requiring that all devices using public Wi-Fi hotspots must be registered. Thus, a coffee shop or hotel patron using the free Wi-Fi with a laptop or smartphone must register the device with the CA, using a phone number and/or a national ID number. The Wi-Fi providers are also required to assign a unique IP address to all users so that all internet traffic can be linked to the specific device and user.

Second, the CA also intends to require that all businesses registered in Kenya must acquire a .ke (dot ke) domain address.

Big Brother really is watching...
Source: Getty Images

Oh, how are these mandates misguided?  Let me count the ways!

Problem #1: how will CA verify the information that is provided?  There are databases of national ID numbers, but some users such as tourists won't have a national ID. Does that mean I can enter my passport number, including a made-up number?

Problem #2: this will create a vast database of user information. How confident are we that the government will keep such information secure?  In fact, centralized storage of such information only makes cybercrime easier for the criminals - with a single hack, mountains of personal ID data can be obtained, and we all know that the Kenyan government websites are targets for attack (e.g., Kenya's military Twitter account).

Problem #3: will this Directive achieve the stated goals of reducing the risk from cyberterrorism, terrorists using Wi-Fi access, and cybercrime? This blogger thinks not, unless the CA knows how to overcome anonymizing tools such as Tor, VPNs, and encryption. (Comments from tech-savvy readers on this point are most welcome.)

Problem #4: what happens if the .ke domain for my business name is already taken? Then I'm forced to register something that is irrelevant or not as relevant? And, am I forced to maintain such registry and pay yearly renewal fees? What happens if the domain lapses?

Problem #5: rarely does a business want a .ke domain when the same .com or .org domain name is also available. So for those users, this directive merely increases the cost and red tape of doing business in Kenya. For the remaining users, this directive will make no difference as they would have registered the .ke in any case.

Problem #6: the intrusion into personal privacy by this directive speaks for itself. This blogger wonders about the legality of the directive. Article 31(c) of the Constitution of Kenya 2010 provides that every person has the right to privacy, including the right not to have information related to their family or private affairs unnecessarily required or revealed. This is, essentially, mass surveillance of the Snowden variety, and this blogger cannot believe that such surveillance is not unnecessary (particularly when 99+% of the monitored activities are likely to be legitimate).

This blogger is not aware of any country on earth that has either of these requirements - either in black letter law or in practice. If any reader knows of such a country, do share!