Section 52 of Computer Misuse and Cybercrime Act No 5 of 2018: Real-time collection of traffic data
(1) Where a police officer or an authorised person has reasonable grounds to believe that traffic data associated with specified communications and related to the person under investigation is required for the purposes of a specific criminal investigation, the police officer or authorised person may apply to the court for an order to —
(a) permit the police officer or authorised person to collect or record through the application of technical means traffic data, in real-time;
(b) compel a service provider, within its existing technical capability —
(i) to collect or record through application of technical means traffic data in real time; or
(ii) to cooperate and assist a police officer or an authorised person in the collection or recording of traffic data, in real-time, associated with specified communications in its jurisdiction transmitted by means of a computer system.
(2) In making an application under subsection (1), the police officer or an authorised person shall —
(a) state the grounds they believe the traffic data sought is available with the person in control of the computer system;
(b) identify and explain, the type of traffic data suspected to be found on such computer system;
(c) identify and explain the subscribers, users or unique identifier the subject of an investigation or prosecution suspected as may be found on such computer system;
(d) identify and explain the offences identified in respect of which the warrant is sought; and
(e) explain the measures to be taken to prepare and ensure that the traffic data shall be sought — (i) while maintaining the privacy of other users, customers and third parties; and
(ii) without the disclosure of data to any party not part of the investigation.
(3) Where the court is satisfied with the explanations provided under subsection
(2), the court shall issue the order provided for under subsection (1).
(4) For purposes of subsection (1), real-time collection or recording of traffic data shall be ordered for a period not exceeding six months.
(5) The court may authorize an extension of time under subsection (4), if it is satisfied that—
(a) such extension of real-time collection or recording of traffic data is reasonably required for the purposes of an investigation or prosecution;
(b) the extent of real-time collection or recording of traffic data is commensurate, proportionate and necessary for the purposes of investigation or prosecution;
(c) despite prior authorisation for real-time collection or recording of traffic data, additional real-time collection or recording of traffic data is necessary and needed to achieve the purpose for which the warrant is to be issued;
(d) measures taken to prepare and ensure that the real time collection or recording of traffic data is carried out while maintaining the privacy of other users, customers and third parties and without the disclosure of information and data of any party not part of the investigation;
(e) the investigation may be frustrated or seriously prejudiced unless the real-time collection or recording of traffic data is permitted; and
(f) the cost of such preservation is not overly burdensome upon the person in control of the computer system.
(6) A court may, in addition to the requirement specified under subsection (3) require the service provider to keep confidential the order and execution of any power provided under this section.
(7) A service provider who fails to comply with an order under this section commits an offence and is liable on conviction —
(a) where the service provider is a corporation, to a fine not exceeding ten million shillings; or
(b) in case of a principal officer of the service provider, to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years, or to both.
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