The Belarusian Helsinki Committee, Human Constanta and the international NGO of digital rights Access Now addressed the UN Working Group on Business and Human Rights, the UN Special Rapporteur on the right to privacy, the UN Special Rapporteur on freedom of expression, and the Special Rapporteur on Belarus – regarding the new decree (No. 368) introduced by Aleksandr Lukashenka “On the interaction of telecommunication operators, telecommunication service providers, and owners of Internet resources with bodies carrying out operational-search activities”.
The practice of surveillance through direct remote access to data of telecommunications services (for example, listening to calls andt determining location) has been widespread in Belarus since at least 2010. However, the new decree institutionalizes surveillance and takes it to an unprecedented level.
The decree obliges online resources, mail providers, instant messengers, online stores, taxi, and car rental services to store user data and provide authorities with direct access to the gathered information. This means that from now on, law enforcement agencies and special services can receive and compare telecommunications data with data from online services. These powers are not limited by any reasonable guarantees and cannot be challenged in court due to their hidden nature and the practical impossibility of ensuring a fair trial in Belarusian courts today.
The issuance of the Decree directly violates the obligations of Belarus in the field of human rights, namely the right to freedom from arbitrary or unlawful invasion of privacy and correspondence (Article 17 of the International Covenant on Civil and Political Rights) and the right to freedom of expression, including the right to hold one's own opinion (article 19 of the International Covenant on Civil and Political Rights).
In addition, the imposition of such obligations on Belarusian companies in the ICT sector and online service providers means that all telecom operators and service providers, as well as owners of Internet resources, will be complicit in violating the rights of their customers if they comply with the Decree. That is, this decree is another situation where the state draws businesses into violation of human rights. This situation is contrary to the standard of the 2011 UN Guiding Principles on Business and Human Rights and also to the State's obligation to create human rights conditions for private actors operating under its jurisdiction.
In this regard, among other things, human rights defenders specifically ask the UN Working Group on Business and Human Rights to:
- apply to "BelGIE" (unitary enterprise for supervision of telecommunications, owner and operator of the tracking system in accordance with the Decree) and draw their attention to the fact that the implementation of the Decree will lead to mass violations of human rights;
- apply to the International Telecommunication Union, which works with Belarus through the Ministry of Communications and Informatization and Beltelecom, one of the three state-owned ICT companies that have the exclusive right (de facto state monopoly) to allow international traffic to Belarus, with the requirement to use leverage its partnership and notify Beltelecom of the unacceptability of such actions;
- make an appeal to businesses operating in/with Belarus to pay special attention due to diligence in the field of human rights (human rights due diligence) to identify, eliminate and/or minimize the risks to human rights arising from their activities in the region; and calling for transparency in its policies and compliance with government requests for access to user data.
It means that:
• companies receiving such requests should refrain from complying with them when the laws on which the requests are based do not comply with applicable human rights standards;
• companies should avoid storing data on Belarusian servers, given the unlawful interference with privacy by the Belarusian authorities;
• Companies should retain information about such requests and government responses and include information about such requests in their transparency reports.
Additionally, the Belarusian Helsinki Committee and Human Constanta separately appealed directly to the International Telecommunication Union with the same requirements, as well as with the requirement to stop any funding and/or cooperation with BelGIE and Beltelecom.
More details on “digital surveillance” and online censorship in a recent joint report by Access Now and Human Constanta here.