 |
 |
-----Original Message----- From: Robert Horvitz [mailto:[log in to unmask]] Sent: 05 September 2005 08:00 To: [log in to unmask] Subject: Radio Licensing and Human Rights Can spectrum licensing breach human rights law? by Pamela Whitby and Martin Sims PolicyTracker, September 2005 http://www.policytracker.com/alerts.php?sact=3D222 Some forms of wireless licensing could contravene international human rights law, according to the respected pressure group Article 19, which campaigns for freedom of expression. The group's stance has been welcomed by those campaigning for a commons approach to spectrum management and in the long term the opinion is likely to add to the pressure for spectrum iberalisation. Article 19's argument is based on the international human rights agreement which is enshrined in law in over 150 countries. (See below) Their view is that wireless technologies like mobile or Wi-Fi have a similar legal status to newspapers because they are also a means of sending or receiving information. Restricting freedom of expression can only be lawful if it is strictly necessary for national security or to maintain public order. The most obvious consequence concerns those countries which require licensing for Wi-Fi. Most of these are in developing or emerging economies - Ukraine, Ghana and China are three examples. Article 19's argument suggests they are breaching international law by curbing freedom of expression in an unnecessarily restrictive manner. The risk of Wi-Fi causing interference is minimal and can easily be contained by allowing it to operate in an unlicensed band like 2.4 GHz. The Article 19 opinion has been warmly welcomed by the Open Spectrum Foundation, which campaigns for greater access to unlicensed spectrum. Robert Horvitz, the director of the Foundation, says this opinion has the greatest significance for the developing world where allowing unlicensed use of Wi-Fi is recognised as making a major contribution to closing the digital divide. Another spur to liberalisation However, he believes human rights law will also have an influence on policy in developed economies, adding to the weight of argument in favour of liberalisation and reinforcing the validity of the spectrum commons' approach. 'The Article 19 opinion draws attention to the EU Authorisation Directive - if you don't have to licence then you shouldn't,' says Horvitz. 'For business reasons the Authorisation directive has come to the same conclusions as you would from a human rights perspective.' Daniel Simons, Article 19's legal officer who wrote the opinion, hopes it will help shift government attitudes. He argues that when it comes to modern, low power, low interference devices, telecoms regulators need to rethink their traditional approach to licensing, which may not meet the necessity test: 'Government's should look at all new technologies and see whether licensing is necessary rather than automatically imposing it. It shouldn't be the open spectrum lobby which need to justify the opening of the airwaves, rather governments that should need to justify the imposing of restrictions.' The application of human rights law is not the only pressure on traditional, more restrictive, licensing regimes. Antony Corel, a lawyer at Squire Sanders Dempsey, says that as new technologies like Software Defined Radio have an inbuilt capacity to avoid interference the justification for specific licences becomes weaker. The key question is how influential the human rights perspective is likely to be in influencing spectrum policy in Europe. Corel says the economic and technical viewpoints are certainly the most persuasive at the moment. 'However,' he says, 'there are lots of perspectives all pointing to the same goal - liberalisation - which can be justified in many different ways.' 18.08.05 THE ISSUES BEHIND THE HEADLINES International Covenant on Civil and Political Rights - section 19: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The exercise of [these rights may] be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order or of public health or morals. WHAT DOES THIS MEAN? Article 19 says: Human Rights law certainly applies to wireless communications - the Covenant covers not just free speech but the right to seek, receive and impart information through any media. The wording is deliberately vague to include all future technologies. Licensing wireless devices restricts freedom of expression but can be justified if it is necessary to maintain public order in spectrum management by preventing interference. Licensing is lawful only if it is absolutely necessary - licensing is only justified in the absence of other less restrictive ways of preventing interference. Furthermore the likely risk and potential consequences of any interference must outweigh the damage to freedom of expression. Download the full Article 19 opinion: http://www.volweb.cz/horvitz/os-info/article19.doc --- Robert Horvitz Stichting Open Spectrum Slavikova 11, 120 00 Prague 2, Czech Republic Gelderlandplein 75 L, 1082 LV Amsterdam, Nederland mailto:[log in to unmask] http://www.openspectrum.info/ mob: +420 775024705 tel: +420 222726807 fax: +420 222725688 -- This message has been scanned for viruses and dangerous content by the NorMAN MailScanner Service and is believed to be clean. The NorMAN MailScanner Service is operated by Information Systems and Services, University of Newcastle upon Tyne. ==== This e-mail is intended solely for the addressee. It may contain private and confidential information. If you are not the intended addressee, please take no action based on it nor show a copy to anyone. Please reply to this e-mail to highlight the error. You should also be aware that all electronic mail from, to, or within Northumbria University may be the subject of a request under the Freedom of Information Act 2000 and related legislation, and therefore may be required to be disclosed to third parties. This e-mail and attachments have been scanned for viruses prior to leaving Northumbria University. Northumbria University will not be liable for any losses as a result of any viruses being passed on. ************************************************************************************ Distributed through Cyber-Society-Live [CSL]: CSL is a moderated discussion list made up of people who are interested in the interdisciplinary academic study of Cyber Society in all its manifestations.To join the list please visit: http://www.jiscmail.ac.uk/lists/cyber-society-live.html *************************************************************************************