Annex to Recs process, MCRB has conducted preliminary research into what the characteristics of a human rights respecting model of lawful interception might look like in Myanmar. These findings are presented below and aim to provide useful information to the Government of Myanmar and other stakeholders involved in drafting this legislation, including the 2016 Parliament. These recommendations 12 set out the principle considerations as the Government of Myanmar begins to develop an approach to regulation and legislation on communications surveillance covering 7 main issues: 13 The Characteristics of a Rights-Respecting Lawful Interception Model 1. Prerequisites 2. Authorisation Processes 3. Oversight 4. The notification of individuals 5. Remedy 6. Transparency 7. Provision for Framework Review 1. Prerequisites Before Lawful Interception Should be Considered  Lawful interception should be undertaken only when other potential measures that could have been used to deal with the criminal or national security threats have been exhausted, for example other police measures that do not involve surveillance.  Any type of surveillance should be carried out only on targeted suspected individuals and organisations where there is prior suspicion that the targeted subject is suspected of a crime. 14  Misuse of intrusive capabilities should be a criminal offence and surveillance used outside the legal frameworks should be prohibited.  The legal framework authorising lawful interception and access to user data should be established through primary legislation and debated in the legislative branch, rather than being adopted as subsidiary regulations enacted by the executive. Public consultation and involvement of stakeholders is a vital part of the policy-making process because many of the processes under the legislation will be carried out behind closed doors, without the opportunity for public scrutiny. It is even more important therefore that the public has a say in establishing the framework. • The Government of Myanmar has committed to a public consultation of draft lawful interception regulations. 15 12 These recommendations draw on recent reports to the UN General Assembly and Human Rights Council, including the Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression A/HRC/23/40 (June 2013); The Right To Privacy in the Digital Age, UN Resolution 68/167 adopted 21st January 2014 ; Report of the Office of the United Nations High Commissioner for Human Rights, presented to the Human Rights Council in September 2014 A/HRC/27/37 and the Report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to the UN General Assembly in September 2014 A/69/397 13 The issues addressed cover both lawful interception (real time access to communications) and access to historical data (which has a number of different terms in law in different jurisdictions including communications data and metadata, 14 See: UN General Assembly A/69/397 23rd September 2014 15 See the announcement on p5 of the Public Consultation Issued by the Ministry of Communications and Information Technology of the Republic of the Union of Myanmar. Proposed Rules for Telecommunications 36 PAGE ANNEX TO THE RECOMMENDATIONS: LAWFUL INTERCEPTION AND GOVERNMENT ACCESS TO USER DATA