Civil Society Comments World Bank Telecom Sector Reform Project, Burma Ulrich Zachau Country Director, Southeast Asia The World Bank 30th Floor, Siam Tower 989 Rama 1 Road, Pathumwan Bangkok 10330 Thailand January 21, 2014 Dear Mr. Zachau, Thank you for the opportunity to participate in civil society consultations on the World Bank’s Telecom Sector Reform project in Burma. While we welcome the World Bank’s efforts to improve telecommunications access and administration in Burma, we retain a number of significant concerns about the development and scope of the project. Burma has unique potential to leapfrog its neighbors in telecom development and to implement a regulatory framework that meets international human rights standards. The international community must respect and promote progress toward these targets, and recognize the importance of an international-standard legal and regulatory framework to accompany increased telecom capacity in Burma. Economic development and ICT adoption are intrinsically linked to the protection of human rights, including the rights to privacy and freedom of expression. As the World Bank supports growth in telecom capacity and infrastructure in Burma, it must simultaneously press for reforms to Burma’s legal and regulatory framework to ensure that this infrastructure will not be used to further violate the privacy, freedom of expression, and other human rights of the people of Burma. It must also hold transparent and comprehensive civil society consultations, allowing sufficient time for civil society and ethnic actors to prepare, and forthrightly respond to civil society concerns. Fundamental Concerns with the Telecom Sector Reform Project As acknowledged by the World Bank, Burma “presently does not have explicit privacy, right to information or cybercrime legislation.” Burma’s inadequate legal framework – and history of state surveillance and control over the telecom sector – puts Burma’s population at high risk of illegal surveillance, censorship, and violations of privacy and freedom of expression. Further development of Burma’s telecom sector must go hand-in-hand with addressing these security and privacy concerns. An increasing chorus of international voices is affirming the rights to privacy and freedom of expression online. In a unanimous resolution, the Human Rights Council affirmed that “the same rights that people have offline must also be protected online, in particular freedom of expression.” UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, has underlined the urgent and fundamental need for states to regulate the surveillance of communications as “[t]echnological changes have concurrently increased opportunities for State surveillance and interventions into individuals’ private communications.” In December 2013, a resolution recognizing the right to privacy in the digital age was adopted by consensus by the UN General Assembly (UNGA) with over 50 co-sponsors. The resolution held that unlawful or arbitrary surveillance, interception of communications, and collection of personal data are highly intrusive acts that violate the rights to privacy and freedom of expression, and may contradict the tenets of a democratic society. Unfortunately, the World Bank’s Telecom Sector Reform project has elected to ignore these fundamental issues of privacy, human rights, and surveillance. While Component 1 of the Telecom Sector Reform project aims to support the Burmese government in creating and implementing a high-quality policy and regulatory environment, project plans ignore entirely the development and enactment of the most basic legal protections and reforms. The World Bank must take special care to ensure that Burma’s regulatory system removes the government’s ability to wield bias and abusive powers as it aids the Burmese government in modernizing Burma’s IT infrastructure and launching eGovernment services. Even the procurement of telecom infrastructure equipment and basic capacity building implicates privacy rights, as the new equipment and increased capacity can enable privacy intrusions and stifle expression. For example, the installation of deep packet inspection (DPI) technologies enables surveillance and filtering of content, while centralized communications infrastructure can be susceptible to throttling, shutdowns, and other forms of disruption. In our brief consultations with the World Bank, we were told that issues of privacy, surveillance, open data, etc. are “secondary” concerns, and will not be addressed in the Telecom Sector Reform project. But these are not secondary concerns; failure to address privacy and security issues while expanding connectivity and providing technical support and training may further empower the government to engage in surveillance, censorship, and other abuses. If the World Banks goal is to create an enabling environment to support a liberalized telecom sector, increase access in rural areas, and promote adoption of ICTs, then privacy regulation is an essential component of that enabling environment. User trust is essential to adoption of ICTs and eGovernance. If people and businesses do not believe that their personal data will be safe and secure from unwarranted surveillance or misuse, then they will be less likely to use the internet, mobile phones, eGovernment services, engage in e-commerce, or adopt innovative services like online banking that support development. Privacy and security are mutually reinforcing values in the online environment. Component 3 of the project aims to provide an eGovernment platform and related capacity building, and will provide high-level trainings to politicians and civil servants on how eGovernment “supports the nation’s charter for accountability, transparency and progress.” But without accompanying privacy regulations that provide the security that people need in order to use the eGovernment platform, the platform will not have the capacity to support “accountability, transparency and progress.” Users will not be able to “transact services in a safe and convenient electronic environment” as the World Bank attests. The World Bank must prioritize privacy regulations to ensure that the state is not empowered to collect and use personal data obtained through the eGovernment platform for illegitimate purposes or in ways that violate rights. The lack of legal safeguards in Burma gives people great reason to be cautious about their personal data. Burmese law and practice does not protect users from unwarranted security agency surveillance or collection of personal data, and the government may seek to enlist state-owned Myanmar Post and Telecommunications (MPT) or new private operators in such abuses without appropriate safeguards for rights. The World Bank must have a primary interest – not “secondary” interest – in ensuring that security agencies are not able to conduct surveillance, procure user data, or disrupt communications without an accountability process that involves independent oversight to protect rights (i.e. obtaining a warrant from an independent and competent judicial authority). Such a process does not now exist. Rather, the MPT has been responsible for regulating internet filtering and monitoring surveillance in conjunction with government security agencies. The Telecom Sector Reform project must prioritize improvement of the regulatory environment, and forthrightly address issues of free expression, privacy, and security, with regard to surveillance, internet service provision, content and cybercrime regulation. The World Bank must not move forward with subsequent project phases until safeguards and legal and regulatory measures are put in place. Before implementing the Telecom Sector Reform project, the World Bank must conduct the following due diligence assessments: 1) An assessment of the risk of illegal surveillance and violations of the right to privacy related to the expansion of mobile and internet communications in Burma. Increasing telecom infrastructure and capacity in Burma will enable internet and telecom operators to collect and retain a growing amount of user data. Operators have the capacity to facilitate real-time surveillance of phone calls or internet use by security agencies. As a result, operators will likely be asked by authorities to hand over user information or facilitate real-time surveillance. In Burma, there are no laws in place to protect the privacy of phone and internet users from public or private service providers and the government. There are no laws governing when and how governments can engage in surveillance or when security agencies can compel telecom operators to hand over user information. Prior to implementing the Telecom Sector Reform project, the World Bank must conduct a full assessment of the risk of surveillance and privacy violations through digital communications operations and infrastructure, and the need for legal and policy safeguards against their abuse. 2) An assessment of the risk of censorship and violations of the right to freedom of expression, including access to information. Burma’s historic and continued state censorship and surveillance, and failure to protect freedoms of expression, speech, and assembly, mean that developing the telecom sector comes with great risk of enabling government censorship and rights violations such as internet filtering or shutdowns. Prior to implementing the Telecom Sector Reform project, the World Bank must conduct a full assessment of the risk of censorship and basic rights violations, including access to information. Recommendations for Project Component 1 and Component 3 During Components 1 and 3 of the Telecom Sector Reform project, the World Bank must specifically help the Burmese government address the following: 1) Privacy and surveillance a. As part of Component 1(d) Restructuring of MPT, implement complete legal, regulatory, and technological separation between Ministry of Communications and Information Technology (MCIT), service operators (MPT and private), and security agencies (law enforcement, national security, etc.). The relationships of these organizations to each other must be made clear legally. Furthermore, the internal systems of telecom operators must be equipped with security mechanisms ensuring encryption and anonymization of user data and the transmission of user data over encrypted channels, preventing access by unauthorized agencies or officials. b. Design and implement legal and regulatory limits in line with international human rights standards on the government’s powers to restrict telecommunications services, block content, conduct surveillance, and collect/access user data from the government telecom operator and new private operators. c. Enact new laws and regulations governing how security agencies and government officials can procure user data and network access (to intercept communications) from the government telecom operator and private operators. i. Require that the government request be submitted in writing, and include an explanation of the legal basis for the request, and identify who is specifically making the request. Ensure that all requests comply with international human rights laws and standards, serving a clearly defined and legitimate public purpose. Allow operators to legally contest requests through independent courts. d. Ensure proper ethical procedures on developing and implementing privacy and surveillance regulation by involving other ministries/organizations (e.g. parliamentary committees) besides the World Bank’s project partners (e.g. MCIT). e. Provide publicly accessible channels for people to express their concerns and grievances about government telecom policies and activities, restrictions on access, freedom of expression, and privacy. f. In public and eGovernment activities, the government must strive to be transparent with users regarding restrictions on access, freedom of expression, and privacy; and develop transparency policies/regulations. The government’s collection and use of data in eGovernment activities must also be regulated to ensure privacy of individuals is protected. 2) Include in trainings to government officials as part of Component 1(a) and (b) units on: a. Consumer interest: how the consumer can get the best price point, choice and quality of service; how to ensure that unsolicited calls/sms are mitigated; how to structure complaints redressal for fraudulent billing, etc. b. Public interest: how to explore unlicensed spectrum, light-licensed spectrum, shared spectrum, etc. options to ensure that spectrum allocation is not seen only as a revenue generation exercise by the government (e.g. consider licensing regulations requiring owners of back-haul connections to lease some or all bandwidth to third parties). c. Access to knowledge: how to design and implement copyright law reform (to ensure affordable content), patent law reform (to ensure affordable devices), and open standards and open content/access for effective eGovernment. d. Open data: how big data from networked infrastructure can be used for better governance. 3) Legal reforms a. Data protection/consumer privacy: develop laws and/or regulations governing how state-owned and private operators are able to collect, process, and share data in line with international human rights standards. b. The governments own privacy practices: develop laws and/or regulations delineating the privacy practices of the government (e.g. how and when the government collects personal information from people living in Burma, how they use this information, etc.) in line with international human rights standards. c. Develop laws and/or regulations protecting freedom of expression, internet service provision, content, and addressing cybercrime in line with international human rights standards. d. Repeal the Electronic Transactions Law (2004). This law is not being successfully “modeled on the UN Model Law on Electronic Commerce (1996, as amended)” or revised to “reflect good practice,” as claimed in the draft Project Information Document (PID). The law is regularly used to prosecute people who are exercising their basic freedoms under the guise of state security and is incompatible with international law. e. Repeal the Computer Science Development Law (1996), which limits communication and internet access by restricting access to consumer technologies such as computers and data-enabled phones. f. Ensure that new and upcoming regulations of the Telecommunications Law (2013) are in line with international human rights standards. g. Ensure that laws and regulatory frameworks support access to personal devices and other ICTs for civil society in Burma. Provisions (e.g. in the Telecommunications Law) that require prior permission or licensing to own and/or operate equipment and networks must be repealed or clarified to ensure that ordinary consumers/NGOs need not apply for a license to purchase equipment or set up computer networks if the equipment has already been approved to be imported into the country. Recommendations for Project Component 2 Component 2 of the Telecom Sector Reform project aims to expand telecom access to rural and ethnic areas through third-party providers. During Component 2, the World Bank must specifically address the following: 1) Due diligence a. The World Bank, government, and any appropriate operators must conduct public, rigorous assessments of human rights risks associated with any public and private partners that become involved in the Telecom Sector Reform project, such as the foreign telecom operators (e.g. Telenor and Ooredoo) and any other telecom equipment vendors brought in either by the telecom operators or independently. b. The World Bank must ensure public and private sector partners publish and implement human rights, environmental, anti-corruption, and worker rights policies and procedures; publish and implement policies and procedures for arrangements made with security service providers, and property acquisition and publish payments made to government entities, policies and procedures in context of telecom expansion projects in Burma’s rural regions. 2) Civil society engagement a. Prioritize civil society engagement by ensuring that “free, prior, and informed consultations” at each potential project site are publicly scheduled at least two months in advance in order to allow ethnic minority and/or civil society organizations sufficient time to translate documents/plans/ proposals into ethnic languages and review them. Ensure that project information is accessible to people of various ethnic groups, different levels of education, those with disabilities, etc. 3) Grievance mechanism a. The World Bank must provide accessible mechanisms for both community members and landowners to communicate concerns about operator activities. These grievance mechanisms must be created and operated in line with international standards on the right to remedy. 4) Land use a. Burmese law and regulations violate international human rights standards and are not sufficient enough for the operators, MCIT, and World Bank to ensure there are no legacy issues in land transactions. There are negligible legal protections for people attempting to demonstrate land tenure, and negligible protections against eminent domain. Ensure that the operators, MCIT, and World Bank respect land tenure irrespective of Burma’s inadequate land laws. Ensure that the Land Lease Guidelines are in line with international human rights standards. b. Ensure that the operators, MCIT, and/or World Bank assume responsibility for comprehensive insurance for all activities related to the project (e.g. a worker falling from the tower during construction, pollution of land related to construction, maintenance of towers, structural failure, emergency labor needs). Ensure that those with land tenure are provided with insurance and protections. c. Ensure that the operators, MCIT, and World Bank assume responsibility and abide by appropriate guidelines for all environmental, social, physical, security, and financial needs and impacts of construction and labor related to the project (e.g. building of roads to the towers, transportation of supplies, environmental and labor costs associated with construction and land impact, worker housing). d. Enact binding regulations to ensure that operators and the government continue to monitor the human rights impact and land rights impact of selected sites after primary acquisition and construction on sites. 5) Category B designation a. The Telecom Sector Reform project has been proposed as a category B project, but due to 1) the lack of an international-standard legal and regulatory framework, particularly regarding land, labor, and human rights, 2) the government’s ongoing record of violations of land, labor, and human rights, and 3) the potential for severe impact moving into and building on selected sites, the project should be listed as category A. The World Bank has downplayed the impacts of moving international service operators into rural, ethnic areas. Burma’s pervasive business and land corruption, and ongoing ethnic conflict, necessitate a category “A” designation to guarantee the people of Burma the courtesy of all World Bank safeguards. 6) Equip MCIT a. Equip MCIT with the institutional and technical capacity to undertake safeguards assessment and mitigation. b. Ensure that MCIT is supplied with the trainings, ability, and resources necessary to abide by the Ethnic Minorities Planning Framework and Land Lease Guidelines, respect land tenure, monitor human and land rights impacts, implement proper safeguards, and carry out the aforementioned recommendations in this document. c. Ensure that the World Bank’s project budget includes support to hire an international-standard Safeguards Specialist. 7) Budget oversight a. The World Bank must implement a financial oversight process for monitoring MCIT’s enactment of the entire project budget. Consulting Civil Society The World Bank must approach civil society consultations responsibly as it moves forward with the project, which will have significant impacts on ethnic minority and rural populations throughout Burma. The project’s approach so far toward civil society consultations has been a disappointment to our organizations. Project documents presume that civil society organizations had lent their broad support of the project before any civil society consultations had even occurred. In the Appraisal Stage Integrated Safeguards Data Sheet (ISDS), prepared on November 20, 2013, the World Bank maintains that the “ESMF [Environmental and Social Management Framework] will be disclosed…in the country in local language and discussed with civil society organizations during one public consultation before project appraisal.” But the World Bank’s one civil society consultation, hastily scheduled for November 28, 2013 in Rangoon, did not allow proper time for civil society actors to review the ESMF or other project documents. Furthermore, the project information was not made accessible to those of various ethnic groups, those with different levels of education, those with disabilities, etc. At the consultation, a proper discussion of the ESMF could not thus be conducted. The ISDS furthermore maintains that “[c]onsultation meetings were conducted with organizations representing ethnic minorities during preparation which confirmed their broad support to the project.” But the consultation that was conducted on November 28 – after the ISDS was published – can hardly be considered to be a confirmation of the “broad support” of civil society for the project. It is unacceptable practice for the World Bank to claim and publish that it received broad support for the project before a single consultation has even been held. The ISDS also contends that “Ethnic screening will be conducted per EMPF during implementation and, where ethnic minorities are found to be present, free, prior and informed consultations will be carried out leading to broad community support to the pilot activities.” It is again unacceptable for the World Bank to presume that future consultations with ethnic communities will lead to “broad community support,” particularly because the project has not yet determined where, when, or with whom consultations will be held. To date, the World Bank has not been considerate of the time and preparation imperative for effective civil society consultations, and has presumed the opinions of civil society toward the project. This indicates that during Component 2, the World Bank may again schedule allegedly “free, prior, and informed” consultations with ethnic communities hurriedly, and presume their broad support. Recommendations for future civil society consultations: • Organize transparent and comprehensive consultations; allow sufficient time for civil society and ethnic actors to translate documents into ethnic languages and otherwise prepare for these consultations; listen and respond to civil society concerns, rather than assume there are no concerns; and ensure that information is accessible to various ethnic groups, people with disabilities, people of different ethnic groups, etc. • Civil society concerns and recommendations to date, as outlined in this letter, must be addressed before the World Bank Board appraisal in early February 2014. Conclusion Thank you for your consideration of these recommendations. We hope that your team will act promptly to ensure the Telecom Sector Reform project promotes progress toward a telecommunications infrastructure, ministry, and regulatory framework that respect, rather than obstruct, the fundamental rights of the people of Burma. CC: Kanthan Shankar, Country Manager, Myanmar Tenzin Norbhu, World Bank Task Team Leader, Telecom Sector Reform Project Signed by: 1) Association of Human Rights Defenders and Promoters • Yangon Region • Bago Region • Mandalay Region • Sagaing Region • Ayeyawaddy Region • Shan State • Kachin State • Rakhine State • Mon State • Tanintharyi Region 2) Ayeyar West Development Organization (Min Bu Township, Magway Region) 3) Burma Environmental Working Group 4) Burma Partnership 5) Burmese Women’s Union 6) Chin Human Rights Organization 7) Community Response Group 8) Dawei Development Association 9) Democracy Human Rights Rural Development 10) Federation of Student Unions (Organizing Committee) 11) Gender Equality Network 12) Generation Wave 13) Green Future (Yae Nan Chaung) 14) Green Network (Magway) 15) Helping Hands Donation Group 16) Human Rights Foundation of Monland 17) Human Rights Trainer & Defender Team 18) IFI Watch Myanmar 19) Kachin Peace Network 20) Kachin Women’s Association – Thailand (KWAT) 21) Karen Environmental and Social Action Network (KESAN) 22) Karen Women Action Group (KWAG) 23) Karen Women’s Organization (KWO) 24) Karenni National Women’s Organization 25) Kayan Student & Youth Union 26) Kayan Women’s Organization 27) Kuki Women’s Human Rights Organization 28) Lahu Women’s Organization 29) Mae Tao Clinic 30) Mon Womens Organization 31) Myanmar Green Network 32) Myanmar – China Pipe Line Watch Committee 33) Nadi Chindwin Myit Min Thalar (Monywa, Sagaing Region) 34) Pa Dae Thar Moe 35) Padonmar (Kyaukpadaung, Mandalay Region) 36) Palaung Women’s Organization 37) Pa-O Women’s Union 38) Paung Ku 39) Peace Network 40) POINT (Promotion Of Indigenous and Nature Together) 41) Popa Lover Association 42) Radiant of Social Care Alliance 43) Rakhaing Women’s Union 44) Sein Lan Pwin Oo Lwin (Pwin Oo Lwin, Mandalay Region) 45) Sein Yaung So (Mandalay, Mandalay Region) 46) Shan Human Rights Foundation (SHRF) 47) Shan New Generation 48) Shan Women’s Action Network 49) Shwebo Shwe Chinthae Social Service Group (Shwebo, Sagaing Region) 50) Taang Women Organization (Namt San Township, Northern Shan Region) 51) Taang Youth Association (Namt San Township, Northern Shan Region) 52) Tavoy Women’s Union 53) Triangle Women Group 54) Wai Nay Ya Pyit Sa Ya (Kyaukpadaung, Mandalay Region) 55) Women for Justice 56) Women’s Initiative Network for Peace (WIN-Peace) 57) Women’s League of Burma 58) Women’s Organizations Network Myanmar (WON) 59) Women’s Rights & Welfare Association of Burma 60) Wonlet Foundation (Sittwe, Rakhine State) 61) Youth Circle
Posted on: Thu, 23 Jan 2014 16:56:46 +0000
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