In Jan 2021, the Communications and Creative Industries Branch of the Commerce and Economic Development Bureau (CEDB) is consultation paper to seek the views on a proposed real-name registration programme for subscriber identity module (SIM) cards (the Programme). The deadline of the submission will end on 20 MAR 2021. Amnesty International Hong Kong (AIHK) expresses grave concern on the impacts on human rights arising from this Programme, which does not constitute a justifiable interference with the rights to privacy and freedom of expression, and thus will hand in a submission for this consultation.
Rights to one’s privacy is safeguarded by Article 17 of “International Covenant on Civil and Political Rights”, which “no one shall be subjected to arbitrary or unlawful interference with his privacy… Everyone has the right to the protection of the law against such interference or attacks.” Since the Programme involves the collection of bulk personal data from all mobile users in Hong Kong, it may lead to non-discriminate mass digital surveillance over the public and will bring risks of violation of civil rights to privacy.
Many human rights organizations and experts have pointed out that real-name registration programme involved mass monitoring, interception, collection, storage, or other use of communications material of individuals or groups, would increase the difficulty of communicating anonymously – a crucial enabler of the right to privacy.
The rights to freedom of expression with a zone of privacy provided by anonymity should be protected according to the “Universal Declaration of Human Rights” and the “International Covenant on Civil and Political Rights”. As stated in the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression by David Kaye in 2015, mandatory SIM card registration provides governments with the capacity to monitor individuals and journalists well beyond any legitimate government interest, hindering not just the rights to freedom of expression but also rights of peaceful assembly and association. The report also indicated that the government ‘should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users.’
The protection on the personal data and individuals’ privacy provided by the legal frame is far from adequate even though the government emphasizes that the Programme will be safeguarded by Personal Data (Privacy) Ordinance (‘PDPO’). Meanwhile, the focus of the provision by the government is mainly on the potential use for crime prevention purposes. However, security does not relieve the government of the obligation to ensure respect for international human rights law, including the protection of rights to anonymity. Thus, David Kaye indicated in his report that, ‘if they (the restrictions on anonymity) interfere with the right to hold opinions, restrictions must not be adopted.’
Moreover, law enforcement authorities (‘LEAs’) are given excessive discretion to request licensees to urgently provide the registration information of a SIM card user without a warrant issued by the magistrate, under the umbrella of a vague definition of ‘serious crimes’ without reasonable clarity. The government also did not rule out that this Programme may expand its scope of collection of further information. The consultation paper does not propose any independent safeguards to review the request for access to the information by LEAs and thus may not be capable to avoid the abuse of power by LEAs. Overshadowed by the enactment of national security law, AIHK fears that the registration Programme may facilitate surveillance and pose a threat to basic human rights.
As a result of these observations, AIHK submits that the current provision of the SIM card registration creates serious loopholes on the violation of human rights, with a high risk of abusive use of personal data. AIHK therefore urges the Hong Kong Government not to implement the present proposed Programme, until the excessive discretion for LEAs are withdrawn, and sufficient human rights safeguards in line with international human rights laws and standards are in place.
AIHK calls on the government to revise the provision of SIM card registration and the PDPO, so that these surveillance measures comply with the following principles and will not become an arbitrary and unlawful intrusion to the basic human rights:
1) Legality: should be prescribed by not just the national law but also international human laws, meeting a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee their application; no executive authorities, such as security and intelligence services, are given excessive discretion and the scope and manner of discretion granted must be with reasonable clarity;
2) Necessity: should only be adopted when strictly and demonstrably necessary to achieve a legitimate aim, and the rights to privacy and to freedom of expression should be put at the utmost priority; must not be used to target whistle-blowers or other individuals seeking to expose human rights violations;
3) Proportionality: must be the least intrusive measures available to achieve the desired legitimate aim, and should not be employed when less invasive techniques are available or have not yet been exhausted;
4) Effective Oversight: the oversight of the programme should involve ‘all branches of government’ and ‘an independent civilian oversight agency’, to ensure effective protection of law, and also to ensure the programme complies with international human rights laws; apply sufficient safeguards to prevent the abuse LEA’s authorities; and the legal framework (like PDPO) should be revised to ensure better protection of privacy; and,
5) Equality: consider that all measures intended to restrict anonymity must not be discriminatory against specific individuals or groups to prevent any disproportionate impact on marginalized groups and secure the right to equality and non-discrimination.