Companies Should Create Strong Rights Precedent
June 27, 2013
Burma’s long record of rights abuses should give pause to the two license winners about government censorship, illegal surveillance, and even network shutdowns. The firms should put strong safeguards in place for their users, make clear that they will be transparent about government demands, and press the government to enact legal protections for rights.
Cynthia Wong, senior Internet researcher

(Washington, DC) – Burma’s new telecom license winners should make a public commitment to strong human rights policies and broad transparency measures, Human Rights Watch said. Firms should say how they plan to protect users from illegal surveillance and censorship, given the current lack of legal human rights protections in Burmese telecommunications law.

On June 27, 2013, the Burmese government announced the winners of two nationwide telecommunications licenses, Telenor and Ooredoo. The companies and the government are to finalize the license process by September. The government also named France Telecom-Orange’s consortium as an alternate should one of the winners fail to fulfill its commitments. However, the government has not yet promulgated a new telecommunications law nor enacted key reforms to protect the rights to privacy, freedom of expression, and access to information in the mobile and Internet sectors.

“Burma’s long record of rights abuses should give pause to the two license winners about government censorship, illegal surveillance, and even network shutdowns,” said Cynthia Wong, senior Internet researcher at Human Rights Watch. “The firms should put strong safeguards in place for their users, make clear that they will be transparent about government demands, and press the government to enact legal protections for rights.”

Burma’s draft telecommunications law has not been finalized, though the Ministry of Communications and Information Technology has reported that parliament will pass the law in July. The drafters are working behind closed doors and have not solicited input on recent versions. While the latest draft has not been made public, a version reviewed by Human Rights Watch in March raised serious concerns that the new law would provide inadequate protections against abuses in a country with a long history of censorship and surveillance. Burma also has a slew of other problematic laws that restrict expression and are incompatible with other human rights.

In a report released in May, Human Rights Watch expressed concern that existing censorship and security laws allow the Burmese government or military to require the help of telecom companies to spy on or silence bloggers, activists, and journalists. Burma lacks an electronic privacy law to prevent arbitrary and overbroad surveillance practices, and the courts have no history of independence from the government. The Burma military retains broad power to declare public emergencies and take control of telecommunications equipment. In addition, rights-restricting laws that the authorities used in the past to silence critics have not been repealed.

Human Rights Watch on May 3 wrote to the 12 international telecom companies that had been approved to apply for a telecom license to inquire about safeguards they had established or were planning should they win one of the two licenses. The letter made specific recommendations consistent with guidance articulated in the United Nations “Protect, Respect, and Remedy” framework, the Guiding Principles on Business and Human Rights, and standards developed by the Global Network Initiative, a global multi-stakeholder initiative to protect free expression and privacy online.

Eight of the companies responded to Human Rights Watch’s letter in writing, including Telenor Group and France Telecom-Orange. Ooredoo, a state-owned operator formerly known as Qatar Telecom, has not responded to inquiries.

Telenor and Orange are members of the Telecommunications Industry Dialogue on Freedom of Expression and Privacy and have committed to implementing the Industry Dialogue’s human rights principles. In March, the Telecom Industry Dialogue announced a collaboration with the Global Network Initiative to support and improve implementation of the companies’ human rights standards. Human Rights Watch is a member of the Global Network Initiative and has discussed the issues raised in Burma with Telenor and Orange directly. 

“Burma’s investors and donors will be closely watching the steps taken by these telecom operators to protect the rights of their future customers,” Wong said. “These ventures may set the stage as to whether foreign investment can play an important role in improving the rights situation for the people of Burma.”

Human Rights Watch urged Telenor and Ooredoo to take several critical steps as they negotiate their operating license and entry into Burma. At a minimum, the companies should put in place policies and procedures setting out how they will prevent and address human rights abuses linked to their operations, including through formal operating licenses or other agreements with the government.

Such procedures should address how the company will respond to government requests for censorship, illegal surveillance, and network shutdowns during declared “public emergencies.” They should include information about how the company will resist requests or minimize their impact on rights. The companies should report on how they have implemented these policies and procedures to the public.

The companies should also identify and address human rights risks associated with their physical operations and key business decisions related to security arrangements or acquiring rights to land for installation of telecommunications equipment. The companies should vet any potential business partners to ensure they are not implicated in serious human rights abuses and secure commitments from partners to the company’s human rights policies.

Given the risk of complicity in rights abuses, the telecom firms should also strive to increase transparency around government restrictions on the rights to freedom of expression and privacy, Human Rights Watch said. The companies should secure permission to publish the terms of any operating agreements and publicly issue a regular transparency report on how they have responded to government requests to limit the rights to freedom of expression and privacy. The companies should report publicly on their progress in meeting their human rights responsibility as they finalize the terms of their entry.

Telenor and Ooredoo will compete with two local licensed entities, Myanma Telecommunications Company and a consortium of other local companies. Myanma Telecommunications Company will be formed when the government privatizes the currently state-owned Myanmar Posts and Telecommunications Company, though the exact date for this transition has not yet been set.

The composition of the second consortium of companies is unclear, though media reports indicate that Yatanarpon Teleport, another state-owned enterprise, will be a leading operator in the consortium. Once the telecommunications law is in place, the government will also enact implementing regulations to manage the sector. However, the independent regulatory authority for the telecom sector will not be in place until 2015.

“Now that the telecom licenses have been awarded, the winners have a responsibility to ensure their services are not used as new tools for censorship and surveillance,” Wong said. “The time for maximizing protections for rights is now, before operating terms are set in stone.”