Critics Skeptical of New Privacy Legislation

By Tin Htet Paing 15 March 2017

RANGOON — Burma’s newly enacted privacy and security protection law received skepticism from several civil society groups that said the legislation was “incomplete” and failed to fully ensure the protection of individuals’ privacy and freedom of expression as it was adopted hastily and without public consultation.

The privacy and security protection bill was submitted to Parliament in September last year. The Union Parliament voted for the enactment of the legislation on March 1 and President U Htin Kyaw signed the legislation on March 8.

The move was an attempt to legislate Article 357 of Burma’s 2008 Constitution, which states “the union shall protect the privacy and security of home, property, correspondence and other communications of citizens under the law subject to the provisions of this Constitution.”

While the law’s fundamental intention was to prohibit warrantless household inspections and surveillance of individuals and their private communication in a manner that harms human dignity and personal freedom, rights groups are concerned that several provisions in the law will affect freedom of expression rather than provide full protection for citizens’ privacy and security.

The four-page law prohibits intrusion on an individual’s “privacy” to freedom of movement, residence and speech. It also protects the “security” of houses, buildings, premises, properties, private letters, parcels and communication data barring permission, order, or warrant in accordance with existing laws, or the permission of the President or Union government.

The Myanmar ICT for Development Organization (MIDO), a digital rights advocacy group in Burma, stressed that the legislation lacked clarity in defining the term privacy.

Defining privacy as “freedom of movement, residence and speech” will not be enough, MIDO’s executive director Ma Htaike Htaike Aung said, emphasizing that personal freedom also means “freedom from any unlawful surveillance and interference” according to international norms.

Burma endured nearly five decades of military rule and state surveillance was used to control citizens and monitor political dissent. During parliamentary discussions, military representatives dissented to the law, stating that national security should be prioritized over personal freedom.

The legislation also says that no one can request or provide information and contents transmitted or received through telephones or electronic communication devices, which are kept in secured or encrypted systems of telecoms operators.

Last week, nine civil society organizations, including the Myanmar Center for Responsible Business (MCRB), Article 19 and MIDO, issued a statement expressing concern over the flawed legislation.

The law does not contain a clear process for seeking permission, orders, or warrants or how much private data shall be kept and for how long, the statement said.

Ma Wai Phyo Myint, regional outreach manager of the MCRB, told The Irrawaddy on Tuesday that the law should not violate basic human rights in long run.

She also highlighted the need for separate legislation regarding lawful communication surveillance, as the recently enacted law focused more on physical privacy.

“There should be separate legislation protecting digital privacy and lawful interception to reflect rapidly changing technology,” she said.

Ma Wai Phyo Myint added that MCRB tried four times to urge Parliament to hold public consultations before approval of the law.

“Parliament and its lawmakers are significantly weak at [holding] public consultations, not only for this particular legislation but others as well,” she said.

Ma Yin Yadanar Thein, program manager in Burma for Article 19, an international NGO defending freedom of expression and information, told The Irrawaddy that lack of clarity in the law’s provisions would definitely threaten an individual’s freedom of expression in the future.

She said the public should be well informed and engaged in enacting legislation so that people have legal awareness and the law reflects grassroots concerns.

She emphasized that the permission to intrude on an individual’s privacy should only be granted by court [order] rather than by the President or Union government.

Critics say that the Union Parliament’s Legal Affairs and Special Cases Assessment Commission was behind the legislation and wanted the bill enacted as soon as possible but The Irrawaddy was unable to confirm this.

The law prescribes a punishment to anyone who violates the provisions of the law with a prison term of up to 3 years and a maximum fine of 1,500,000 kyats (about US$1,100). Any police official who fails to take action against reports of such violations could face imprisonment of up to 5 years and a maximum 2,500,000 kyats ($1,800) fine.