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Vietnam’s Cybersecurity Draft Law: Made in China?

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Photo credit: Asia Times.

During the first part of last year’s November, the National Assembly of China passed the Law on Cybersecurity and established its effective date to be June 1, 2017.

Then come June 2017, five days after said law went into effect in China, the Vietnam’s Ministry of Public Security (MPS) sent their own proposal regarding a draft of the Cybersecurity Law to the Vietnamese government. It has been claimed that this draft law was the result of a legislative process which began to take place since July 2016, when the National Assembly scheduled Cybersecurity Law as one of its agenda’s items then. The MPS then also established their own drafting team and an editing group to work on the drafts of Vietnam’s Cybersecurity Law in late March this year.

After going through various collections of public comments and four draft versions of the law, the final draft (Draft Law) now is in the hands of the National Assemblymen and women. It would be among the items to be discussed when they meet at the end of 2017, and if all things go according to plan, Vietnam’s Cybersecurity Law will get approved and signed into laws by the middle of next year.

Yet, whether purposefully or unintentionally, Vietnam’s Draft Law has shocked many people because it is almost identical to that of China’s.

In their proposal submitted to the government, the MPS stressed that they have researched, and thus taken into considerations Cybersecurity laws from China, Japan, the Czech Republic, South Korea, and the U.S when drafting the Draft Law.

I have to make it clear that I do not have any evidence to conclude the Vietnamese government has indeed copied China’s Cybersecurity Law. Moreover, if both countries are functioning under an identical political system, then the use of identical legislative tools would be very understandable. This is even more likely when the MPS openly admitted that they have considered Chinese laws as stated. Besides, copying or learning from other countries’ legislative experiences do not necessarily mean negative consequences.

However, let’s just go straight to comparing Vietnam’s 4th draft of the Cybersecurity Law currently sitting on the desks of the National Assembly’s members and the English translation of the Chinese laws, to see how much they are alike to one another, and whether such similarities will bring negative consequences to Vietnamese people.

1. Two documents, one technical term

There is one technical term in the Vietnamese Draft Law that one should pay close attention to, which is the “critical information system regarding national security” in Article 9.

In the China’s version, there is a similar technical term: “critical information infrastructure” in Article 31.

Both laws centered on these two technical terms, and their definitions are also very much alike. Both are used to define any information, that if being under attack, they would bring harms to national security, social order and public safety.

That information – as mentioned in both Vietnam’s and China’s Cybersecurity Law – would then include energy, finance, transportation, media, and publications, as well as electronic governance.

However, the Draft Law of Vietnam also includes military-security, national secrets, banking, natural resources and environment, chemicals, medicine, and other national security structures.

The Draft Law also does not distinguish between private companies and government agencies when applying the concept of “critical information system regarding national security”. Based on the context of said law’s wordings, the targeted entities are implied to be both of them. The government and the enforcing authorities could also interpret this law as broad as possible.

Baker & McKenzie, in their analysis of the Chinese Cybersecurity Law, has warned all companies whose may have established relationships with those entities which fall under the regulatory perimeters of said law, that this law could very well be applicable to them.

The agencies and enterprises who are within the application of this law shall abide the technical measures and regulations as set by the government, and submit themselves to be under the direct control and observation of the MPS. They will have to obtain all necessary business permits to operate and maintain their equipment while at the same time, must cooperate with the authorities in monitoring users’ information.

These regulations between Vietnam and China are identical.

2. Directly target information considered to be dangerous to the regime

It is not surprising to learn that both Vietnam and China are extremely concerned about cybersecurity.

As detailed in the proposal from the MPS, the Draft Law of Vietnam focuses on underlining the importance of “preventing, fighting against, and neutralizing all activities using cyberspace to intrude national security; subverting against the Socialist Republic of Vietnam; propagandizing to destroy the ideology, the internal affairs, and the common national unification; inciting mass protests; and obstructing cybersecurity, from the reactionary forces and those who are enemies of the State”.

Further, Article 22 of the Draft Law clearly states that the Vietnamese government would apply all necessary technical methods to treat such information.

Article 12 of the Chinese Cybersecurity Law has a similar provision when it prohibits Internet users from using “the network to engage in activities endangering national security, national honor, and interests, inciting subversion of national sovereignty, the overturn of the socialist system, inciting separatism, undermining national unity, advocating terrorism or extremism, inciting ethnic hatred and ethnic discrimination, disseminating violent, obscene or sexual information, creating or disseminating false information to disrupt the economic or social order, as well as infringing on the reputation, privacy, intellectual property or other lawful rights and interests of others, and other such acts”.

3. Requiring all Internet users to provide true identity

Article 47 of the Vietnamese Draft Law specifically demands all Internet service providers to require “users to provide true and correct personal information. If any user refuses to comply, the service providers shall have the responsibility to deny that user service”.

At the same time, Internet service providers must establish their own verification system to ensure the accuracy and veracity of the information provided by the service users according to Article 33.

Article 24 of the Chinese Cybersecurity Law has the same language as those contained in the Vietnamese Draft Law’s Article 47.

Once businesses and the State can obtain users’ detailed personal information, there will be no guaranty that they would not use it for improper purposes, and would not harm such users.

4. The server is required to be localized within Vietnam’s territory and the providers will have to transmit their data overseas

This requirement has proven to be the most controversial in the past few days among the public in Vietnam.

Article 34 of the Draft Law requires “foreign corporations and providers, in order to provide telecommunications and Internet services in Vietnam, must … obtain business permits to operate, maintain a local representative agency, and the server which manages Vietnamese users’ data shall be stored within the national territory of the Socialist Republic of Vietnam”.

Article 48 further provides, all personal information and important data concerning national security shall be stored within the national territory of Vietnam. In the event that someone wants to transfer such information overseas, then a security assessment shall be performed according to the related governmental agencies’ requirements.

These rules and regulations have caused many Vietnamese concerns, that Google, Facebook, other social media platforms, email providers, and cloud computing service providers will soon pack up and leave Vietnam’s market.

Surprisingly, Article 37 of the Chinese version also provides for similar regulations as the two above-mentioned Draft Law’s articles.

As recent as this past June, tech giant Apple had to cooperate with a Chinese corporation to invest in a database center to comply with this specific provision. Microsoft, IBM, and Amazon had complied as well.

5. Forcing users and providers to act as informants

If the Draft Law gets passed into law, Internet users, telecom and Internet providers must cooperate thoroughly with the government.

Article 45 requires those who engage in activities using cyberspace must strictly comply with the government’s guidelines and shall allow the government to enforce their cybersecurity’s measures and safeguards.

Moreover, all service providers must work with the government to provide actual identities of those Internet users, while at the same time, shall have the responsibility to fend off all information which is deemed to be detrimental to the State, according to Articles 46 and 47.

Again, we find the same regulating language in China’s Cybersecurity Law. This time is located at Article 28, which demands that “network operators shall provide technical support and assistance to public security organs’ and state security organs; lawful activities preserving national security and investigating crimes”.

6. Forcing tech companies to follow government’s technical standards

Article 46 mandates all businesses involved in the production and putting in commerce digital products, as well as providing Internet services, shall be in accordance with the provisions of laws and with the “mandatory quality assurance of State standards”, before releasing their products to the market.

The State also shall pass laws which set the standards for the hardware and software to be used with the above-mentioned technical measures, as well as make sure that the applicable entities shall comply.

This provision also serves as the legal basis for the State to enact the necessary decrees and orders, regulating the specificity of the technical measures mentioned and how to enforce such measures.

Compare to China, the Chinese government had required all new computers to be pre-installed with the automatic content-control software – Green Dam – and also forced businesses, including Google, to have this software installed on all their computers.

The fact that the Vietnamese government had become increasingly more and more interfering with the technical measures regarding the high-tech market highlights the fact that it has opened the doors for corruption and abuse of power from the MPS, the Ministry of Defense (MOD), Ministry of Science and Technology, and other related governmental agencies.

7. Forcing all entities that have relations with “critical information” to be evaluated by the State when buying hardware and software.

Articles 11, 16, and 48 of the Draft Law gives the MPS, the MOD, and other State’s agencies, the authority to review equipment, networks products, and services which may be related to the national critical data system before they could be put into use or upgrade.

This is similar to Article 35 of China’s Cybersecurity Law.

Accordingly, this regulation means that any governmental agency or private business – who maintains an information system which related to energy, national finance, banking, transportation, chemicals, medicine, natural resources and environment, media, news and publishing, shall go through the MPS and/or the MOD when purchasing the necessary hardware, software, Internet service provider for their operation.

It probably makes sense to see this regulation being applied to government’s agencies, but the fact that it is stepping into fields such as banking, medicine, news, and publishing, raises questions about the State’s ambition in controlling information in society at large.

These regulations would grant the police and military the all-access key to both government’s agencies’ and private businesses’ hardware and software. This would be an opportunity for them to exert pressure on other agencies, businesses, as well as putting the whole society at risk for corruption and abuse of power.

The above were only seven strikingly obvious similarities between the Vietnam’s Draft Law and China’s Cybersecurity Law. With an in-depth reading of both documents, one probably finds, even though smaller, much more alike features.

This article is translated into English by Tran Vi from the article “Dự luật An ninh mạng: Hàng Việt Nam ‘Made in China’?“ that was published on Luat Khoa magazine on November 4th, 2017.

Human Rights

Latest Review Under UN’s Human Rights Treaty Body Highlighted Vietnam’s Dismal Records

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The ICCPR Review of Vietnam During the HRC's 125th Session. Photo credits: Screenshot from UN's WebTV

“How do you explain or assess that Vietnam is ranked 175 out of 180 countries in the Reporters Sans Frontiers’ 2018 World Press Freedom Index?”

The question from Mr. Fathalla, a member of the UN Human Rights Committee, succinctly summed up Vietnam’s human rights situation, especially when it came to those rights involving the people’s freedom of expression.

Between March 11 and 12, 2019 and during their 125th session, the Human Rights Committee completed their review of Vietnam’s compliance and implementation of the International Covenant on Civil and Political Rights (ICCPR) in Geneva, Switzerland.

Vietnam was 13 years overdue in submitting its third report for the review, which was due in August 2004. As a result, there was a 15-year-gap between the last review and this recent one.

Nevertheless, the questions from the Committee during the two-day-proceeding painted an accurate, but very worrying picture of the human rights situation in the country right now.

The Committee questioned specific contents of the new 2018 Cybersecurity Law and the 2016 Press Law regarding their possible violations of Article 19 of the ICCPR on freedom of expression.

There was scrutiny over the independence of the judiciary in Vietnam where all judges seemed to be members of the Vietnamese Communist Party.

Lawyers were disbarred for being human rights defenders themselves, or just by merely took on politically sensitive cases, such as those involved police brutality and torture committed by the state’s officials.

The most recently amended Penal Code has taken a step further in limiting and curtailing the practice of law when it requires lawyers to make mandatory reports on their clients in a few specific instances – for example when it involves a “national security” crime – or risk being prosecuted themselves.

At the same time, the penal code sections relating to “national security” are used almost exclusively against human rights defenders and political dissidents in Vietnam. As such, the mandatory report requirement seems to especially deny this group of people their right to a fair trial with competent legal assistance.

There were also concerns from the Committee over the fact that police brutality had become more prevalent in recent years due to impunity.

Prison conditions in general, and especially the treatment of human rights defenders in prison, were also brought up repeatedly during the proceeding, where the Committee rejected Vietnam’s attempt to brush off the issue by offering evidence of some handful visits to prisons by foreign embassies in recent years.

The Committee’s members instead referred to the UN’s Committee Against Torture’s recommendations after the review of Vietnam under the Convention in November 2018, where numerous alarming issues regarding the poor conditions in Vietnam’s prisons were addressed, such as the use of shackle and solitary confinement.

Vietnam was named as one of the world’s top executioners in 2016 by an Amnesty International’s report on the death penalty, after the Ministry of Public Security released some rare statistics in February 2017, stating that 429 prisoners were executed between August 8, 2013, and June 30, 2016, at an average rate of 147 executions per year.

At the review, facts involved the wrongful convictions involving two death-row inmates, Ho Duy Hai and Le Van Manh, were also addressed in details by members of the Committee.

The rights of indigenous people in Vietnam also took center after reports on their religious persecution and forced statelessness were submitted to the Committee in advance by NGOs working on these issues. Among them were Boat People SOS, Viet Nam Coalition Against Torture (VN-CAT), Council of Indigenous Peoples in Today’s Viet Nam (CIP-TVN), The Advocates for Human Rights and Tai Studies Center, Khmers Kampuchea-Krom Federation, and Hmong United for Justice.

The UN received close to thirty shadow reports from civil society organizations before the review, which included both independent groups and NGOs that have an affiliation with the Vietnamese government.

The Human Rights Committee is expected to issue their concluding observations in the coming months.

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Human Rights

EU Officials Raised Concern Over Worrying Human Rights Situation In Vietnam

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EU Commissioner for Trade Cecilia Malmström and representatives from independent Vietnamese CSOs. Photo Credits: Commissioner Malmström's official Twitter account.

“The human rights situation in Vietnam is worrying,” according to Commissioner for Trade of the European Union, Cecilia Malmström, after her meeting with independent Vietnamese civil society organizations on March 14, 2019.

When announcing the adoption of the EU-Vietnam trade and investment agreements (EV-FTA) in October 2018, Commissioner Malmström had hoped that such agreements would “help spread European high standards and create possibilities for in-depth discussions on human rights and the protection of citizens.”

However, during recent months, the human rights situation in Vietnam did not improve.

Instead, it became more concerning.

Commissioner Malmström is not the only EU official who has expressed concerns over the worrying trend of suppression on human rights in Vietnam in recent months.

32 MEPs from across the political spectrum of the EU Parliament signed a letter back in September 2018, calling on the EU to demand specific human rights improvements from Vietnam before the ratification of the EV-FTA.

EU Spokesperson on Foreign Affairs and Foreign Policy, Maya Kocijancic, also confirmed in an interview with Radio Free Asia earlier this month, that during the 8th EU-Vietnam Human Rights Dialogue held in Brussels on March 4, 2019, the EU had addressed specific cases of prisoners of conscience with the Vietnamese delegation.

Ms. Kocijancic also stated during the same interview that the annual dialogue “raised a wide range of issues related to freedom  of expression, cybersecurity, the death penalty, environmental and labor rights, cooperation within the United Nations framework.”

As of today, The 88 Project’s database documented 21 Vietnamese activists are held in pre-trial detention. There are 218 other activists currently serving a prison sentence; among them, 30 are female activists and 51 indigenous political prisoners.

According to VOICE (Vietnamese Overseas Initiative for Conscience Empowerment), one of the organizations attended the meeting with Commissioner Malmström, the unconditional and in-country release of Vietnamese prisoners of conscience must be the first human rights benchmark before the ratification of the EV-FTA.

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Wife of Arbitrarily Detained Facebooker: He Only Exercised His Constitutional Rights

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Tran Thanh Phuong and his wife, Le Thi Khanh, with one of the couple's daughter. Photo courtesy: Le Thi Khanh.

The Prime Minister of Vietnam, Nguyen Xuan Phuc, announced today at a preparatory meeting for the DPRK-US summit in Hanoi that the country needs to “prove to the whole world that it is peaceful, friendly and orderly … as (the core of) its culture, a way of life of Vietnamese people.”

The price to pay for such an image could very well be the freedom of those who dare to exercise their constitutional rights like Le Thi Khanh’s husband, Tran Thanh Phuong.

For almost six months, Le Thi Khanh, a garment maker in Ho Chi Minh City, has not been able to see her husband who was taken away by the local authorities since September 1, 2018.

Her husband is Tran Thanh Phuong, a Facebooker who has been in police detention for attempting to participate in a protest during the celebration of Vietnam’s National Day.

As a pre-emptive strike, the police “invited” Phuong to come to the local station to talk to them, but they then detained him without a formal arrest warrant, according to his wife.

At first, Khanh could still bring her husband food and meet him once a day at the local police station of their ward.

But on September 7, 2018, when she went to see her husband, the police told her they had transferred him to a different location yet refused to tell her where.

Khanh then went to the District’s Police Department to look up her husband’s whereabouts.

There, the police asked her to provide them with her marriage certificate before allowing visitation. Once she did, they promised her that she would get to see him on October 10, 2018.

Came October 10, 2018, Khanh packed some food to bring to her husband with high hopes that she could see him, but again she was disappointed.

The District’s police told her they had transferred him to No. 4, Phan Dang Luu Street which is the detention center under the Ho Chi Minh City Police Department, The Security Investigative Unit.

She immediately went to No. 4 Detention Center and was able to confirm that her husband was, indeed, held there.

Since then, she was only able to send him food every two months, but the authorities have yet to allow visitation.

She also has no idea what crimes her husband has been charged with because no one would tell her anything.

But Khanh was aware that Phuong was using his Facebook to look up information relating to Vietnam’s Constitution, as well as the exercise of their constitutional rights.

“My husband often read different groups’ postings on Facebook about disseminating our Constitution. He said we should read to gain our own knowledge so that when the police arrest us, we could know what rights we have and demand them,” Khanh told us.

Not being to know how her husband has been doing was an ordeal which Khanh went through in the past six months while trying to make end’s meet to raise the couple’s two daughters, entirely on her own now.

Tran Thanh Phuong has effectively been held incommunicado by various police forces in Ho Chi Minh City since September 7, 2018.

Khanh also told us that on October 15, 2010, the police even tried to summon her 13-year-old daughter to come in for questioning on the 19th regarding their investigation of the case.

She, of course, refused to comply with the outrageous request.

Phuong was alleged to be a member of a dissident group calls “Constitution” (Hiến pháp).

The group’s members have been arrested and detained arbitrarily by the Vietnamese authorities from September 2018 to date.

While the members acknowledged that they participated in the June 10, 2018’s mass protest against the then draft bills of the cybersecurity and the Special Economic Zones law, all information surrounding their activities – including those coming from the authorities – could not openly show their criminal liability.

One of them has been arrested, tried, convicted and sentenced to five-year-imprisonment.

In that case, the defendant – Huynh Truong Ca – was alleged by the government to have live-streamed 40 clips on Facebook criticizing the government, the Communist Party, and calling on people to exercise their constitutional right: participate in demonstrations.

Such conduct, however, not only could not constitute the legal merits of a crime but also was a person’s political opinion which international human rights law protects.

Notwithstanding international law standards, the government of Vietnam often violates even its constitution while suppressing people during protests and arresting them.

The 2013 Constitution guarantees all Vietnamese people the right to assemble and to demonstrate peacefully.

The absence of a valid constitutional protection mechanism, however, has allowed the government’s unlawful activities continued.

Crowd control’s measures in Vietnam were recently broadcasted internationally when the Hanoi’s security police detained and questioned the Kim Jong-un and Donald Trump impersonators duo ahead of the DRPK-US summit.

The police’s intention to avoid any remote possibility of people gathering during the event was apparent when they demanded the two’s itinerary while in Hanoi and had since surveilled their movements.

Spontaneous gatherings in public are frown upon by the VCP because its leaders could not and would not risk the chance – however slim – of having a protest breaks out, especially during a highly observed event like the Kim-Trump peace summit.

Since September 2018 to date, The Vietnamese has documented over a dozen incidents of arbitrary arrest and detention. More than half of them involved the members of the Constitution group where Tran Thanh Phuong is a member.

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