-----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




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