Sector Wide Impact Assessment Mya nmar ICT Sector-Wide Impact Assessment September 2015 for for fiber cables © Myanmar Centre for Responsible Business Responsible for Centre Myanmar © trenches Workers digging The Myanmar Centre for Responsible Business (MCRB) was set up in 2013 by the Institute for Human Rights and Business (IHRB) and the Danish Institute for Human Rights (DIHR) with funding from several donor governments. Based in Yangon, it aims to provide a trusted and impartial platform for the creation of knowledge, capacity, and dialogue amongst businesses, civil society organisations and governments to encourage responsible business conduct throughout Myanmar. Responsible business means business conduct that works for the long- term interests of Myanmar and its people, based on responsible social and environmental performance within the context of international standards. © Copyright Myanmar Centre for Responsible Business (MCRB), Institute for Human Rights and Business (IHRB), and Danish Institute for Human Rights (DIHR), September 2015. Published by MCRB, IHRB and DIHR – September 2015. All rights reserved. MCRB, IHRB and DIHR permit free reproduction of extracts from this publication provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to the headquarter addresses below. Requests for permission to reproduce and translate the publication should be addressed to MCRB, IHRB and DIHR. Myanmar Centre for Responsible Business Institute for Human Rights Danish Institute for 15 Shan Yeiktha Street and Business (IHRB) Human Rights (DIHR) Sanchaung, Yangon, 34b York Way Wilders Plads 8K Myanmar London, N1 9AB 1403 Copenhagen K Email: info@myanmar- United Kingdom Email: responsiblebusiness.org Email: [email protected] [email protected] Web: www.myanmar- Web: www.ihrb.org Web: responsiblebusiness.org www.humanrights.dk or www.mcrb.org.mm Contents EXECUTIVE SUMMARY ................................................................................. 8 RECOMMENDATIONS .................................................................................... 14 14 To the Government of Myanmar 23 To ICT Companies 29 To CSOS, Human Rights Defenders and the Media 31 To Development Partners / Home Governments 33 To Investors in Myanmar’s ICT Sector 34 To Users 35 Annex to the Recommendations: Lawful Interception and Government Access to User Data – The Characteristics of Rights-Respecting Models CHAPTER 1: INTRODUCTION ...................................................................... 41 CHAPTER 2: ICT GOVERNMENT INSTITUTIONS, POLICIES & LEGAL FRAMEWORKS ............................................................................................... 54 CHAPTER 3: SECTOR-LEVEL IMPACTS ...................................................... 85 CHAPTER 4: OPERATIONAL-LEVEL IMPACTS .......................................... 119 ICT-Specific Impacts: 4.1 Freedom of Expression 121 4.2 Hate Speech 139 4.3 Privacy 151 4.4 Surveillance and Lawful Interception Each Chapter 165 4.5 Cyber-Security features sections on: 180 • Other Impacts Relevant to the ICT Sector: National Context • 4.6 Labour Field Research Findings 189 4.7 Land 208 • Recommendations 4.8 Groups at Risk 222 4.9 Stakeholder Engagement & Grievance to Companies Mechanisms 237 4.10 Security and Conflict 254 CHAPTER 5: CUMULATIVE-LEVEL IMPACTS ............................................ 265 ANNEX A: BACKGROUND ON SWIA METHODOLOGY............................... 271 3 Acknowledgements The partner organisations would like to thank the Governments of Denmark, Ireland, Netherlands, Norway, Switzerland and United Kingdom for their on-going support to MCRB. The partner organisations would also like to thank all those who participated in the field assessments across Myanmar, and in the June 2015 Yangon and London consultations on the draft ICT SWIA. They also thank the Union Government, as well as the Governments of Mandalay Region, Sagaing Region, Yangon Region, Shan State, Mon State and Kayin State, for their support in the research phase. The report was written by: Margaret Wachenfeld, Donna Guest, Haley St. Dennis and Lucy Purdon of IHRB, Vicky Bowman, Kamran Emad, Thi Thi Thein of MCRB, with important contributions from Elin Wrzoncki and Rikke Frank Joergensen of DIHR. The team would also like to recognise the contributions of the MCRB ICT field team: Research Leader Kamran Emad, SWIA Manager Thi Thi Thein and researchers: Sandar Cho Oo, Hlaing Min Oo and Kyaw Thura. Special thanks go to Susan Morgan, who authored the Annex to the Recommendations on Lawful Interception and Government Access to User Data, with input from Lucy Purdon and Margaret Wachenfeld, and we would also like to thank all those experts interviewed for this section of the SWIA. We would also like to thank Asia Law & Justice Fellow Joey Lee of Fordham Law School and students Alison Cullen, Matthew Solomon and Jennifer Whitman who provided detailed research on ICT laws in Myanmar. The research also draws on background papers developed for MCRB by Kamran Emad, Delphia Lim and Ross Wilson as well as Dr Richard Horsey of Peace Nexus. 4 PAGE \* TERMS Amyotha Hluttaw: The “House of Nationalities”, which is the Upper House of the National Legislature and has 224 representatives – 168 are elected in equal numbers from each Region and State, i.e. 12 representatives from each Region or State. The 12 must include one elected representative from each Self-Administered Division or each Self- Administered Zone. 56 representatives are nominated by the Commander-in-Chief of the Defence Services, including 4 representatives from each Region or State. (Constitution of the Republic of the Union of Myanmar (2008), Article 141) Constitution: The 2008 Constitution of the Republic of the Union of Myanmar which came into operation on the day the first session of the Pyidaungsu Hluttaw was convened (31 January 2011). Hluttaw: A Burmese equivalent of “legislature.” Myanmar has a National (Union) Hluttaw, and Hluttaws in each State and Region. Pyidaungsu Hluttaw: The National (Union) Legislature, which is bicameral and composed of the Amyotha Hluttaw and the Pyithu Hluttaw. Pyithu Hluttaw: The “House of Representatives” or the “People’s Assembly”, which is the Lower House of the National Legislature and has 440 representatives. 330 representatives are elected from township-based constituencies. 110 representatives are nominated by the Commander-in-Chief of the Defence Services. (Constitution, Article 109) Tatmadaw: The Tatmadaw refers to the armed forces of the Union of Myanmar. The main armed force is the Defence Services, and all armed forces in the Union are under the command of the Defence Services. (Constitution, Articles 337 and 338) Union/Myanmar Government: The Union Government comprises the President, the two Vice-Presidents, the Ministers of the Union, and the Attorney-General of the Union. (Constitution, Article 200) ABBREVIATIONS ADB Asian Development Bank ASEAN Association of South-East Asian Nations DICA Directorate of Investment and Company Administration CESD Centre for Economic and Social Development EHS Environmental Health and Safety ESIA Environmental and Social Impact Assessment FESR Framework for Economic and Social Reforms FPIC Free, Prior and Informed Consent GDP Gross Domestic Product GeSI Global e-Sustainability Initiative GNI Global Network Initiative ICCPR International Covenant on Civil and Political Rights ICT Information and Communication Technologies IFC International Finance Corporation IFI International Financial Institution MCRC Myanmar Communications Regulatory Commission MCIT Ministry of Communications and Information Technology MDRI Myanmar Development Resource Institute MIC Myanmar Investment Commission MIDO Myanmar ICT Development Organisation 5 MMCERT Myanmar Cybersecurity Emergency Response Team MNPED Ministry for National Planning and Economic Development MOST Ministry of Science and Technology MPT Myanma Posts and Telecommunications NLD National League for Democracy OECD Organisation for Economic Cooperation and Development OHCHR Office of the High Comissioner for Human Rights PTD Posts and Telecommunications Department SLORC State Law and Order Restoration Council SPDC State Peace and Development Council SWIA Sector-Wide Impact Assessment UNDP United Nations Development Programme USDP Union Solidarity Development Party VOIP Voice over Internet Protocol LIST OF TABLES Table 1: Recommendations from the OECD as part of the Myanmar Investment 45 Policy Review Chapter on Responsible Business Conduct Table 2: US Reporting Requirements on Responsible Investment in Burma 46 Table 3: The Corporate Responsibility to Respect Human Rights 50 Table 4: SWIA Mitigation Hierarchy 52 Table 5: Other Actors Involved in Myanmar’s ICT Sector 59 Table 6: ICT Master Plan 2011–2015 Action Items across 4 Key ICT Sector Areas 64 Table 7: Proposed Vision of the 2015 Draft Telecommunications Master Plan, as of 65 August 2015 Table 8: Myanmar’s Accession to International Human Rights Instruments 68 Table 9: Principal Existing Domestic Laws Relevant to ICTs 69 Table 10: Existing Gaps in Myanmar’s ICT Legal Framework 70 Table 11: Summary of Human Rights at Risk under Domestic ICT Laws 70 Table 12: Provisions of the 2013 Telecommunications Law with Potential to be 72 used to Criminalise Legitimate Expression Table 13: Provisions of the 2013 Telecommunications Law with Potential to be 73 used to Arbitrarily Block or Filter User Content Table 14: Provisions of the 2013 Telecommunications