Sri Lanka’s submarine cable legislation inordinately delayed
Posted on December 4th, 2022

By Asiri Fernando The Sunday Morning

Colombo, December 4 ():  Sri Lanka’s digital communications umbilical to the world remains vulnerable as the Government continues to drag its feet on enacting legislation on the protection of undersea data cables.

Today, Sri Lanka’s connectivity, trade, and digital economy as an island nation are largely dependent on seven undersea fibre-optic data cables which remain under-protected by local legislation.

This gap in legislation leaves Sri Lanka’s national security and economic recovery in a vulnerable state, with a part of the critical digital infrastructure of the country lacking a legal framework.

The move comes amidst the Government’s stated desire to improve digitalization of the public service, Sri Lanka’s digital economy, and the ease of doing business in Sri Lanka.

Such legislation, had it been introduced, would have placed Sri Lanka as the regional leader in submarine cable protection – especially in tandem with the Personal Data Protection Act which was recently adopted – enabling the island nation, which is seeking to improve its ‘hub’ status, to attract tech investments.

Slow Grind of Bureaucracy

The Sunday Morning reliably learns that the draft of the National Submarine Cables Protection and Resilience Framework (NSCPRF) – a pursuit which began under the Yahapalanaya Government’s tenure in 2018, was completed in 2020, and was earmarked to be submitted to the Cabinet for approval earlier this year – has once again been shifted to another branch of the Government without being submitted for approval.

It is understood that the draft legislation was planned to be introduced as an amendment to the Telecommunications Act with the Telecommunications Regulatory Commission of Sri Lanka (TRCSL) to act as a regulator on the subject.

The Sunday Morning understands that President Gotabaya Rajapaksa had written to the Attorney General’s (AG’s) Department in July 2021 to take necessary action to fast-track the legislative process required, preceding the Budget-making process which commenced in Parliament in November 2021.

According to sources, the Ministry of Foreign Affairs (MFA) has written to the AG’s office this year offering assistance to fast-track the process.

The draft legislation of the framework (NSCPRF) was prepared by the MFA in consultation with the AG’s Department, TRCSL, Ministry of Science and Technology, and the Ministry of Defense over the last three years. The process had been handled by the MFA’s Directorate on Oceans Affairs, Environment, and Climate Change.

However, according to the MFA, President Ranil Wickremesinghe had given instructions for the NSCPRF to be brought under the purview of the Ministry of Science and Technology with the Presidential Secretariat designated as the focal point for the subject following a briefing by the MFA regarding framework last month.

However, neither the Presidential Secretariat nor the Ministry of Science and Technology responded to inquiries regarding the status of the legislation and when it would be introduced.

When The Sunday Morning contacted Minister of Foreign Affairs Ali Sabry regarding the NSCPRF, he confirmed that the legislation had been brought under the preview of the Presidential Secretariat but would not comment on a timeline for its rollout.

It now directly comes under the preview of the Presidential Secretariat; the Foreign Ministry is helping them in consultation with the Attorney General,” Minister Sabry said.

A highly-placed Government official who is close to the subject told The Sunday Morning that the Government is now keen on a single stand-alone legislation on submarine cables in place of an amendment to the Telecommunications Act, which was planned as the method of introducing the draft framework.

However, with such a move, and the lack of clarity from the Government, the introduction of such vital legislation remains uncertain.

History

When the development of the framework began, it was supported by the United Nations Office on Drugs and Crime (UNODC), International Cable Protection Committee (ICPC), and the Government of Japan. As a signatory to the UN Convention on the Law of the Sea (UNCLOS), Sri Lanka needs to take action to protect fibre-optic submarine cables as a treaty obligation, a need the United Nations General Assembly Resolution A/RES/73/124, dated 31 December 2018 had highlighted.

Addressing a workshop on developing the framework and building national resilience in September 2020, the then Foreign Secretary Adm. (Retd) Jayanath Colombage stated: Submarine cables are crucial for emerging economies, particularly for countries like Sri Lanka, which are more reliant on ocean-based international trade. On the other hand, with the onset of the Covid-19 pandemic, the importance of digital connectivity increased multifold with growing dependency on the internet in life.”

Any interruption or destruction to the submarine cable network could cause significant chaos and loss of economic stability, public health, and safety, as well as the national security of the country. Submarine cables are also prone to damage by nature, human negligence, or accident and to deliberate damage by criminal or terrorist groups. Therefore, the safety and security of the undersea cables are of utmost importance in order to ensure their protection and continued connectivity.”

Sources at the MFA blamed a lackadaisical approach and weak subject matter knowledge on the part of  senior bureaucrats for the slow process of the framework.  

2004 disruption

Sri Lanka is no stranger to the dangers posed to the submarine data cables which link the island to the world.

In 2004, Sri Lanka suffered its first major internet and international communications outage which lasted a few days when the Indian flagged merchant vessel State of Nagaland dragged its anchor over the SEA-ME-WE3 data cable that supplied linkages to the SLT.

The incident occurred in a coastal sea area which has restrictions put in place to stop ships from deploying the anchor. SLT later took the vessel owners to court seeking US$ 5 million as compensation for damages. The cost to the economy from the outage has not been calculated.

Business, security, and connectivity

According to the former TRCSL Chairman Oshada Senanayake, the NSCPRF is a vital piece of legislation that Sri Lanka needs to bring into effect quickly in order to build investor confidence, improve resilience in the face of trans-national disruptions, and help the growth of the digital economy.

He told The Sunday Morning that after an exhaustive consultation process, the NSCPRF had been drafted and was waiting to be presented to the Cabinet earlier this year.

It is difficult to comprehend why this is facing delays. We had close consultations with the AG’s Department on the UNCLOS charter as well. The reason we drafted this legislation is because Sri Lanka does not have legislation that can have punitive measures if there is an intentional man-made damage to them or by a natural disaster. If a ship drops its anchor over them, right now we don’t have a way to charge them.”

Now, since we as a country are going through the digital transformation process, imagine the situation of a drop in internet connectivity for a day. Just compare how we struggle with eight hours of power outage now. Imagine a data blackout or lack of banking connectivity; it will have serious repercussions on the economy and society,” Senanayake said.

He added that such vulnerabilities would have an impact on the credibility of the country and its national security.

Senanayake said that the NSCPRF was a foundational element of Sri Lanka’s digital future and digital economy and that, along with the Personal Data Protection Act of 2022, the proposed framework would have given confidence to tech companies to view Sri Lanka as a preferable location in Asia for investment or relocation of their offices.

Globally, submarine cables carry 95% of the world’s total communications, while satellites are only able to handle 7% of global data traffic.

Many key submarine cables that link Europe with the Indian subcontinent, Southeast Asia, Australia, the Pacific Islands, and Africa lie on the seabed of Sri Lanka’s Exclusive Economic Zone (EEZ). The highest density of submarine cables in the Indian Ocean falls in Sri Lanka’s EEZ or travels around the island.

There are three main challenges to uninterrupted submarine cable operations – natural disasters, accidental human-induced damage, and deliberate interference and sabotage.

Sri Lanka is connected to the world through the following seven submarine data cables: The Bay of Bengal Gateway (BBG), South-East Asia-Middle East-Western Europe 3 (SMW3) submarine cable, South-East Asia-Middle East-Western Europe 4 (SMW4) submarine cable, South-East Asia-Middle East-Western Europe 5 (SMW5) submarine cable, Bharat Lanka Cable System (BLCS), FLAG Alcatel-Lucent Optical Network (FALCON) submarine cable system, and Dhiraagu and Sri Lanka Telecom Cable System (DSCS).

According to the Department of Census and Statistics, Sri Lanka had an internet penetration of 52% as of 2020, with nearly 77% of internet users using smart mobile phones to access the world wide web. Global and local use of the digital world of the internet increased significantly following the physical and travel restrictions brought on by the Covid-19 pandemic.

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