Siddra Shah is a J.D. candidate, 2021 at NYU School of Law.
5G is the “fifth generation” of wireless technology. Each generation has incrementally improved mobile networks and wireless infrastructure. “In the 1980s and ’90s, 1G and 2G networks mostly handled voice and simple digital data. In the 2000s, 3G marked the beginning of mobile Internet access.” Next, 4G further evolved our smartphones, adapting them to applications like Instagram and Snapchat. 5G promises to change the landscape of mobile connectivity even more.
Right now, 5G is still a work in progress. Some AT&T users might think they already have 5G service when their phones are connected to “5GE,” but 5GE, which is short for “5G Evolution,” is merely AT&T’s step towards 5G. 5G-compatible devices are needed in order to use 5G networks, and 5G devices aren’t popular in the United States yet. In fact, reports suggest we should not expect 5G-enabled iPhones until late 2020 at the earliest.
5G deployment began with the Federal Communications Commission (FCC) auctioning off swathes of certain frequency bands. The telecommunications companies with winning bids have the task of building out the infrastructure using those bands. To deliver 5G’s promise of 100-1000 times faster speeds with lower latency, telecommunications companies will likely update existing 4G infrastructure instead of replacing it entirely. The hope is that retrofitting 4G systems, rather than revamping from scratch, may allow for a smoother, more cost-effective transition.
Among the more exciting 5G technologies is the so-called Internet of Things (“IoT”). Think futuristic hospitals performing remote surgeries, smart cities connected to driverless cars, even holograms and holographic phone calls. Manufacturing-heavy countries like Germany are excited about what 5G technology can do for factory automation. Other countries are investing in smart farming and precision agriculture. No matter its use, the current consensus is that 5G is an exciting area for lots of innovation and investment.
So, there’s no real surprise that there’s an international race to 5G, or that the United States wants to win it. Countries that are positioned at the forefront of new technological domains tend to set the standards for everyone else, and many people don’t want to see 5G-leader China have that power. Moreover, 4G undeniably changed the landscape of smartphone services and connectivity. American workers and investors in particular benefited from building out 4G platforms and designing the applications we all use every day. The FCC’s official 5G strategy, called the 5G FAST Plan, emphasizes deregulation as a means of accommodating and encouraging the private sector’s quick movement, so that the U.S. might be a 5G leader as well.
But is there a cost to how quickly the industry is moving, and how hands-off the FCC wants to be? It seems the answer is yes, and communications attorneys should keep their eyes on a range of related issues that seem destined for adjudication.
A key feature of the 5G network is small cell technology, which involves antennae transmissions of information across smaller geographic areas than traditional cell towers do, so more of them have to be installed. Some groups have been concerned with this technology’s potential negative health effects. Even though the concerns are not scientifically backed, public alarm might impede 5G deployment in some areas. For example, in April of this year, Brussels “halted work on its new 5G network, citing uncertainty about its health effects” relating to the small cell antennae that were popping up across the region.
In the United States, several communities in northern California tried to ban 5G for health reasons. The FCC responded with an order that asserts its regulatory preemption authority, restraining how state and local governments can regulate 5G systems. In response, the U.S. Conference of Mayors stated that the FCC “has embarked on an unprecedented federal intrusion into local (and state) government property rights that will have substantial and continuing adverse impacts on cities and their taxpayers. . . . The Conference and its members now look to the federal courts to review and rectify this unlawful taking of local property. . . .” The FCC’s order was then challenged by a number of municipalities and is currently under review by the Ninth Circuit.
Meanwhile, several telecommunications companies filed petitions claiming that the FCC’s order did not go far enough. The petitions are also under review by the Ninth Circuit. In addition to legal challenges, Congress might also be responding to the FCC’s order with “at least one bill introduced in the 116th Congress [that] would declare the Order to have ‘no force or effect.’”
Network Security Concerns
A lauded feature of 5G is the interconnectivity promised by the IoT. Thanks to cloud-based core network infrastructures, “smart cities” will be connected to each other, enabling seamless travel and data storage. A wide range of industries, including “healthcare, education, media, gaming, manufacturing, transportation, and retail,” are all “poised to assimilate 5G into their processes and workflows, transforming the technological infrastructure upon which modern civilization is built.” But to what standards will industries be held in terms of their protection of consumers’ private information? What kinds of network security requirements will be implemented, who will get to decide them, and how will the United States ensure its foreign trade partners are also complying?
In a recent report, the Cybersecurity and Infrastructure Security Agency (CISA) warned of “an increased attack surface, due to both a larger number of information and communication technology (ICT) components used compared with previous generation of wireless networks, and to locally-built networks.” Aside from whatever new vulnerabilities will eventually surface as a result of 5G infrastructure, CISA’s report also cautioned that, while retrofitting 4G systems might make for a smooth 4G-to-5G transition, doing so has the downside of preserving “legacy vulnerabilities” that might be passed into 5G networks.
5G promises to transform wireless technology, but in light of the FCC’s focus on deregulating instead of anticipating and directing the mitigation of possible vulnerabilities, attorneys should be aware of the issues that might result. Communications lawyers will need to be able to counsel corporations on how to navigate the array of security and liability issues that are foreseen on the horizon, especially with respect to cross-border data flows and IoT devices.