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Executive Summaries Aug 26, 2019

5G Technology Is Coming: Legal Questions Abound

By

Richard Epstein, Adrien Mitchell

A major paradigm shift is coming to the world of communications technology with the arrival of the fifth and latest generation of cellular network technology, commonly referred to as 5G.

This latest communication standard promises data transfer speeds up to 100 times faster than what is currently available. One of the major technical differences with older communication standards is that 5G uses, among others, short-wave technology. In doing so, it relies not on a few dozen cellphone towers scattered across an urban area in order to provide service but instead requires thousands of transmitters to be installed sometimes only a few dozen feet from each other. Often, these transmitters will have to be affixed to municipally owned utility poles and street signs while in other cases, network providers will have to negotiate with private landowners to allow for the utilization of their buildings. 

In addition, because short-wave signals struggle to pass through solid objects such as trees and walls, these transmitters will also have to be just as numerous indoors as out. Logistics issues aside, the resulting networks can, however, allow for extremely high data transfer speeds combined with equally impressive low latency rates, effectively opening the door for never before possible use cases, such as fully autonomous self-driving car systems, high resolution and lag-free mobile video conferencing, as well as the true coming of age of Internet of Things (IoT) devices. 

For all the benefits the technology will offer, it also comes with its own set of risks and challenges that need to be addressed before municipalities rush to deploy 5G networks. Many countries in Asia began the switch over to 5G a few years ago and so the western world is now scrambling to overhaul existing cell phone networks in order to remain competitive. This rapid deployment of 5G networks will create an urgent need to consider a broad scope of laws and regulations ranging from privacy laws to property rights, health and environmental laws, and liability for adverse impacts on the population. Lawmakers as well as citizens and corporations need to remain vigilant and demonstrate caution at every step of the way.

5G Technology Raises Serious Concerns About Privacy and Security

Recently, public discourse has been rife with talks surrounding the right to privacy. Privacy and security surrounding the rollout of 5G should obviously be a major concern to ordinary citizens for a number of reasons including the occurrence of location tracking, data mining, and sensitive data breaches. 

Firstly, the sheer number of transmitters required for a working 5G network translates to an equal increase in potential points of failure that will be vulnerable to a physical breach or a disruption attack. Network providers and equipment manufacturers will undoubtedly have to put in place protocols in the event of such an occurrence in order to mitigate damages and limit their personal responsibility. Current data breaches often result in class-action lawsuits followed by large settlements and in some cases fines by regulators and nothing indicates that the current trend will come to an end any time soon.

Secondly, the increase in the number of transmitters, their proximity to one another, and the fact that their presence will be required both indoors and out means that users’ location will be pinpointed with incredible accuracy. Using current cellphone towers to triangulate a person’s location is accurate to an area of approximately two square km. The use of 5G transmitters, however, will knock that number down to a few square metres, effectively setting up the stage for much greater consequences associated with the misuse of location information. Cellphone providers have already been liable for selling their users' location data to advertisers and even more care must be taken as the stakes become even higher.

A third area of concern lies in what is commonly referred to as the Internet of Things or IoT and which involves the connection of a multitude of everyday objects and sensors in such a way that are all capable of communicating with each other. Because these objects and sensors oftentimes gather and share extremely large amounts of personal information regarding the location and the lifestyle choices of their users, the door is left wide open for identity theft and data mining by malicious actors as well as by advertisers looking for even more targeted ads.

New Use Cases, New Challenges

The increase in speed and decrease in latency of 5G signals means that new never before possible uses cases are going to emerge and revolutionize our daily lives. New use cases, however, also bring a new set of challenges. Two examples of industries that will experience drastic changes as a result of the advent of 5G are self-driving cars and the medical field. 

Self-driving cars currently rely on a multitude of various sensors and cameras in order to allow for autonomous driving. As the number of these vehicles present on the road increases, communication among them will be required so as to avoid potential congestion and bottlenecking. In order to rely on a cellular network to relay information on the precise location, speed, and direction of moving vehicles and to do so between thousands of vehicles at a time requires tremendous speed and bandwidth, both of which are hallmark characteristics of 5G. However, what happens if the network carrying these signals fails or is subject to a cyber attack? Could cellular network providers or manufacturers be found liable for accidents or deaths resulting from such catastrophic events? These questions will undoubtedly be answered by courts in the foreseeable future. 

5G technology will also have the potential to revolutionize the healthcare field allowing for much faster transfers of large patient files, remote surgery, and real-time patient monitoring. These use cases bring up a slew of questions regarding the civil responsibility of network providers in the advent of a failure or a data breach given the obvious importance of the data being transported and the severity of the repercussions involving anything healthcare related. Medical practitioners and providers as well as insurance companies will also have to give some thought to the malpractice implications involved with an increase in remote procedures over 5G networks.

Health Risks Associated With 5G Technology

A significant area of apprehension for all stakeholders in the 5G sector lies with the impact on the general population regarding potential health risks associated with the exposure to large amounts of radio frequencies. Numerous studies raise concerns in respect of the negative impact emanating from exposure to cell phone waves. While there has yet to be conclusive evidence, the World Health Organization has nonetheless categorized current cell phone waves as potentially carcinogenic to humans. 

Because of the upcoming omnipresence of hundreds of thousands of transmitters spread out in every corner of the continent, questions need to be addressed as a precautionary measure as well as purely for ethical reasons. Network providers and equipment manufacturers should be prepared for the potential pitfalls associated with class action lawsuits being brought forth and have plans in place for crisis management. 

The Difficult Task of Governments and Municipalities 

Authorities will have to strike the right balance between passing legislation and regulation that protects its citizens while simultaneously not stifling innovation and progress. A few governments in Europe have already halted 5G tests until more conclusive evidence of the technology’s safety, both in terms of privacy and health, are more substantiated. While it may be difficult to predict the direction in which the future is heading, one thing is for sure: change is coming and it is coming fast.

In an upcoming article on the legal implications of 5G, we will explore how governments and lawmakers from around the world are managing their legislative and regulatory environments given the upcoming communications revolution and how past court decisions may impact future legal questions in the field.  

Stay on the lookout!

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