Myanmar: The Right to Privacy & Protest
Even prior to the COVID-19 pandemic, the rising influence of the internet and social media created an integral tool for protest rights. For example, social media is often considered a catalyst for the Arab Spring, also referred to as the Facebook or Twitter Revolutions.[1] The pandemic further strengthened the internet’s power and necessity, shifting big crowds in the streets to global online followings that hosted protests such as a “‘digital strike.’”[2] With this shift, the internet became “one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information , and for facilitating active citizen participation in building democratic societies.”[3] Further, in countries that often criminalize freedom of expression and assembly, anonymous speech serves as a necessary tool for activists and protestors.[4] In turn, these governments have responded with new, often harsher laws to crack down on these rights.
Free and safe access to the internet can implicate many human rights, but this post’s discussion relates to the right to protest (formally known as the freedom of assembly) and the right to privacy. The Universal Declaration of Human Rights protects the freedom of assembly under Article 20.[5] The Human Rights Council has asserted that the same rights people have offline should be recognized online, in accordance with human rights law.[6] Because the planning and sometimes hosting of protests involves spreading information via the internet, freedom of assembly is inevitably impacted by a state’s internet restriction and monitoring.
Myanmar’s constitution ensures the right to privacy through Article 357, in which “[t]he Union shall protect the privacy and security of home, property, correspondence and other communications of citizens.”[7] Article 354 protects the freedom of assembly and expression or publication of one’s opinions.[8] However, Section 66(d) of the Telecommunications Law penalizes up to two years in prison any individual who defames using a telecommunications network, predominantly prosecuting individuals, journalists, and media who use the internet or social media to voice criticism of the police or government.[9] The Telecommunications Law is not the only example of Myanmar’s conflicting stance on human rights.
Myanmar’s rulers have invested in spyware since at least 2018, when Aung San Suu Kyi’s government created a social media monitoring system.[10] This system purchased spyware from foreign countries capable of extracting cell phone data, tapping phone conversations, and tracking movement.[11] Her government also set up a SIM card registration system to limit the ability of individuals to purchase multiple SIM cards (a common practice among activists and journalists seeking privacy).[12] Since the coup, telecom companies have been ordered to install this intercept software, as well as to block phone numbers of activists, human rights lawyers, and dissidents.[13]
The introduction of a new cybersecurity law (“the Law”) on January 13, 2022, dealt another blow to these endangered rights.[14] The vague language of the Law provides the military government (“the Junta”) with a significant tool to suppress opposition.[15] Notably, the Law bans the use of Virtual Private Networks (“VPNs”). VPNs are a critical tool used by businesses, activists, and private individuals for security and to bypass internet censorship. [16] Activists use VPNs to access social media sites, to communicate, and to organize protests. The Law also forbids individuals from encouraging others to use VPNs. [17] Doing so could lead to a three-year prison sentence.[18]
The Law is detrimental to the right to privacy as it provides the Junta with greater power to infiltrate private communications by requiring digital platform service providers (like Facebook and WhatsApp) to remove content that could “damage an individual’s social standing and livelihood.”[19]; "misinformation and disinformation,"; content "causing hate, disrupting the unity, stabilization, and peace,"; and challenges to "any existing law."[20] As such, the Junta could censor any perceived criticism.[21] These companies must also preserve user data including phone numbers, home and IP addresses, and ID cards. Failure to do so may result in their licenses being revoked.[22] This essentially strongarms companies into collaborating with government investigations of alleged offenses under the Law.[23]
The participation in protests necessarily involves the use of social media or other internet services. In a time where society remains inextricably linked to technology, the Law represents a clear and present danger to the fundamental human right to protest and to privacy.
Elise Loughran & Leila Witcher are staff members of Fordham International Law Journal Volume XLV.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See Heather Brown, Emily Guskin, & Amy Mitchell,
The Role of Social Media in the Arab Uprisings, Pew Rsch. Ctr.: Arab-Am. Media (Nov. 28, 2012), https://www.pewresearch.org/journalism/2012/11/28/role-social-media-arab-uprisings/.
[2] See Laura O’Brien & Peter Micek, Defending peaceful assembly and association in the digital age: takedowns, shutdowns, and surveillance, Access Now, 3, (Jul. 27, 2020), available at https://www.accessnow.org/cms/assets/uploads/2020/07/Defending-Peaceful-Assembly-Association-Digital-Age.pdf.
[3] Frank La Rue (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression), Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, U.N. Doc. A/17/27, at ¶ 2 (2011).
[4] See David Kaye (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression), Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, U.N. Doc. A/29/32, at ¶ 53 (2015).
[5] See G.A. Res. 217 (III), at A, (Dec. 10, 1948).
[6] See G.A. Res. 73/173, ¶ 4 (Jan. 8, 2019).
[7] Myanmar’s Constitution of 2008, Constitute Project (Feb. 19, 2021), https://www.constituteproject.org/constitution/Myanmar_2008.pdf?lang=en.
[8] See id.
[9] See Burma Library, The Telecommunications Law (The Pyidaungsu Hluttaw Law No. 31, 2013), https://www.burmalibrary.org/docs23/2013-10-08-Telecommunications_Law-en.pdf, (last visited Mar. 13, 2020); see also Human Rights Watch, The Criminalization of Peaceful Expression in Myanmar, (Jan. 31, 2019), https://www.hrw.org/report/2019/02/01/dashed-hopes/criminalization-peaceful-expression-myanmar.
[10] See Myanmar: Freedom on the Net 2021, Freedom House (2021) https://freedomhouse.org/country/myanmar/freedom-net/2021 (last visited Mar. 6, 2022).
[11] See Hannah Beech, Myanmar’s Military Deploys Digital Arsenal of Repression in Crackdown, N.Y. Times (Mar. 11, 2021), https://www.nytimes.com/2021/03/01/world/asia/myanmar-coup-military-surveillance.html.
[12] See Fanny Potkin & Poppy McPherson, How Myanmar’s military moved in on the telecoms sector to spy on citizens, Reuters (May 18, 2021), https://www.reuters.com/world/asia-pacific/how-myanmars-military-moved-telecoms-sector-spy-citizens-2021-05-18/.
[13] See id.
[14] See Junta makes another bid to introduce draconian cyber law, Myanmar Now (Jan. 25, 2022), https://www.myanmar-now.org/en/news/junta-makes-another-bid-to-introduce-draconian-cyber-law.
[15] See A year after Myanmar coup, growing surveillance threatens lives, Straits Times (Jan. 31, 2022), https://www.straitstimes.com/asia/se-asia/a-year-after-myanmar-coup-growing-surveillance-threatens-lives.
[16] See id.
[17] See Sebastian Strangio, Myanmar Junta Set to Pass Draconian Cyber Security Law, The Diplomat (Jan. 31, 2022), https://thediplomat.com/2022/01/myanmar-junta-set-to-pass-draconian-cyber-security-law/.
[18] See id.
[19] Id.
[20] Myanmar: Scrap Draconian Cybersecurity Bill, Hum. Rts. Watch (Feb. 15, 2022), https://www.hrw.org/news/2022/02/15/myanmar-scrap-draconian-cybersecurity-bill.
[21] See id.
[22] See id.
[23] See id.