Myanmar: Ministry’s internet plan needs more safeguards for regulator independence

Myanmar: Ministry’s internet plan needs more safeguards for regulator independence - Digital

Journalist and editor Nyan Lynn uses a computer while writing a story at the Myanmar Observer Media Group.

ARTICLE 19 urges the government of Myanmar to strengthen its plan for reform of the internet sector in the country by establishing additional safeguards, to ensure that a new regulator of service providers is truly independent, and refrains from providing for unnecessary and disproportionate surveillance.

Information Communication Technologies (ICT) are vital to Myanmar’s economic development, and a good policy will undoubtedly enable development to happen in a faster and more equitable manner. Until now, the Myanmar government has systematically stifled the ICT sector, resulting in one of the lowest levels of internet penetration in the world.

ARTICLE 19 welcomes that the Ministry of Communications and Information Technology (CIT) draft Master Plan for reform has been developed with uncharacteristically high levels of civil society engagement. The draft Plan is a significant improvement on the government’s current policy.

However, ARTICLE 19 urges the Government to focus on the independence of the Myanmar Communications Commission (the regulator of service providers), strengthen the Plan’s network security requirements, avoid the possibility of unnecessary and disproportionate surveillance capabilities, protect net neutrality, and provide for a universal service obligation.

In order to strengthen the plan for reform, ARTICLE 19 raised the following concerns with the Ministry of CIT:

Independence of the regulator

The Plan refers to the independence of the main telecoms authority, but fails to create sufficient safeguards to ensure that it is independent from the government. ARTICLE 19 is concerned that despite the Plan’s intention for the authority to be independent, without such safeguards the independence will always be under threat.

For example, the regulator has to report to the government (the Ministry of CIT) and is to be treated as a member of the Cabinet. It therefore appears that the regulator is accountable to the government, whereas under international standards it should instead be accountable to parliament.

Modeling such a regulator on those used in China and Thailand is also problematic, as neither are examples of independent regulatory authorities.

The Plan also refers to the Ministry of CIT becoming independent from government. However, it is unclear how a ministry can become independent from government. In normal circumstances a ministry is always part of the government rather than a regulator, which should be independent.

Network security requirements

If the authority’s independence is not protected with adequate safeguards, there will be a potential threat to network security requirements. Without such safeguards, the government could put in place unnecessary and disproportionate surveillance capabilities. Vital in determining this will be the upcoming cyber-security policy and interception of telecoms networks. Current policy in this area is not encouraging for hopes that these policies will conform to international standards.

The Plan also references the development of “appropriate protocols for legal interception” with the support of the Council of Europe. However, under international standards, legal interception cannot be carried out without a proper primary law in place that regulates the powers of the authorities in this area.

Moreover, certain technical requirements should not be included within the law because that would disproportionality impact the right to privacy and the right to freedom of expression.

It is vital therefore that any development of such primary law on interception also includes proper consolation with civil society, which appears currently to be lacking from the Plan.

Net neutrality and minimum service requirements 

The Plan refers to “minimum service requirements”. It is important to maintain this and not to revert to “satisfactory” service requirements, which would undermine the principle of net neutrality. In order to prevent this, it is important that the Plan commits to protecting net neutrality, and explicitly pledges not to use so-called “kill switches” to stop service. For more information, please refer to:

Universal Service Obligation

The Plan refers to “Corporate Social Responsibility” as an option to deal with last-mile provision of internet access. This option is not enough to fulfill the government’s obligations. Instead, the Plan should provide for the government to ensure a universal service obligation so as to guarantee access to the internet is delivered in remote areas. For more information please refer to the Joint Declaration on Freedom Of Expression and the Internet 2011.

Intellectual property rights

The Plan makes reference to the protection of intellectual property rights. However, we are not sure how intellectual property rights is relevant in the context of telecoms policy. ARTICLE 19 is concerned that this may result in a push towards the monitoring of communication networks.