Disclaimer: The communication is not intended to be a legal opinion of the author. The article is written for the sole purpose of complying with an academic requirement.
FACTS
The Policy in Issue
Some countries imposed a ban on the use of Blackberry devices. As of this writing, UAE, India, Saudi Arabia, Lebanon and Indonesia have expressed their concerns against the said smartphone, and either imposed, or is contemplating to impose, the ban. The reason for the policy is that the messages being sent and received using the e-mail feature of the device are difficult to monitor. Saudi Arabia, in particular, defends the policy, stating that it is not censorship, but enforcement of regulations. Indian authorities believe that Blackberry services were used during the Mumbai attacks in 2008. Authorities cite national security as the compelling reason for the policy, stating the difficulty, if not impossibility, to monitor the communications of terrorists and other criminals using Blackberry.
Blackberry's Encryption System
Blackberry is being manufactured and operated by Research In Motion (RIM), a Canadian-based company. Unlike other mobile devices, Blackberry's internet service is being provided by RIM's own network connection around the world using a special encryption system, which gives the service better efficiency and security. This is one of the reasons why the device has become increasingly popular, both for personal and business purposes. The facilities that receive and route the messages sent from the devices are located in Canada and Britain. It means that unlike other mobile devices that transmit electronic data messages using local servers, Blackberry messaging system routes and processes all data out of the state's jurisdiction. This is what concerns the authorities.
Regulation on Telecommunications
WAM Emirates New Agency published an article comparing the regulation of telecommunications in UAE with those of the US and UK. The state has the authority to monitor certain communications and require telecommunication companies to cooperate in doing so to serve public interest and national security. It includes suspension or revocation of licenses granted to the companies should they fail to have the technical capability to furnish information that may be required of them. If US and UK can validly do that, so should UAE and other countries be able to do the same.
This is not the first time the regulation was imposed. Last year, Saudi Arabian authorities ordered Elisalat, the local provider of Blackberry, to have their subscribers install a software designed to monitor e-mails coming in and out of their phones. This, however, turned out to be a spyware, and was eventually ordered to be removed.
REACTION
Banning communication could be more than enforcement of laws or regulations. It might be a form of censorship which faces the issue of reasonability, apart from being subject to criticisms from the international community. However, as independent states, the countries involved have the right to implement their own laws grounded upon their own determination of their needs as influenced by their own forms of government and the events that have happened and are currently happening in their respective territories. The policy might have been dictated by uprisings and terrorisms these countries have experienced and aims to put an end to. If it is indeed the reason for the ban, the policy survives the "reasonableness test" and even the "clear and present danger test". However, if their concerns are more imagined than real, the ban might be too oppressive and restrictive of the people's right to communication, and even to the property rights of those who already have Blackberry phones and cannot use them anymore.
With the way the policy would operate, there is no difference between private communications for lawful purposes which should be protected, and communications for illegal or unlawful purposes which must be suppressed. Both will be banned. In some situations, however, the privacy accorded to lawful communications must yield to the greater interest of national security.
The policy does not also amount to a total restriction of communications. Not all mobile communications are being banned, but only those transmitted through Blackberry. Those affected may use other devices. There may be a valid classification, considering the special encryption system being used by RIM, which is different from the ones being used by others. The same reason holds true on the issue of having RIM deprived of the right to engage in lawful business.
As mentioned above, Saudi Arabia already attempted to impose a regulation short of a total ban which, however, failed. In the US, there is a mechanism by which authorities can intercept, retrieve and monitor the messages sent via Blackberry should they need to do so in solving crimes and in other law enforcement activities. Failure of RIM to have a similar mechanism operate in Saudi Arabia, for instance, could be a valid reason for the imposition of the ban. It is worth mentioning that Saudi has lifted the ban temporarily while RIM is devising a system to comply with their regulatory requirements. If there should evolve a better way to regulate with less deprivation of freedom, the ban would then be unreasonable.
In sum, the policy banning the use of Blackberry phones in the countries so mentioned may or may not be duly called for depending on the judgment of the authorities, influenced by the situations in their respective territories. Yes, it would have adverse effects to the conduct of business and to the economy in general, since it would weaken the privacy, integrity and efficiency of private and business communications. But as long as the people will not be totally silenced, and it is only a restriction on a particular device, and the enforcement is not being conducted arbitrarily, then the policy could be considered as proper and reasonable.
Footnotes:
1. UAE BlackBerry ban set to spread throughout Gulf states; Richard Wray; www.guardian.co.uk; Monday 2 August 2010.
2. Comparative overview
of Telecommunications Regulations in US, UK and UAE; WAM Emirates News Agency; 1 August 2010.
2 comments:
As a private citizen, I would like to exercise my right of privacy to communication. As it is embodied and recognized right in the Constitution in almost every country in the world. I hope that the citizens of such country would not be deprived in exercising such right for this is another form of restricting their personal freedom. I can’t speak on how exigent the structure, implementation and exercise of the basic human rights in such Gulf countries but I would like to believe that their government’s concern is more real than just another way of restricting some of their citizen’s rights.
But I am with you that when it comes to the interest of NATIONAL SECURITY the government has the hand on how they would regulate the information that goes through and out of its territorial jurisdiction.
But as a private citizen, I would like to exercise my right of privacy to communication. As it is embodied and recognized right in the Constitution in almost every country in the world. I hope that the citizens of such country would not be deprived in exercising such right for this is another form of restricting their personal freedom. I can’t speak on how exigent the structure, implementation and exercise of the basic human rights in such Gulf countries but I would like to believe that their government’s concern is more real than just another way of restricting some of their citizen’s rights.
But I am with you that when it comes to the interest of the NATIONAL SECURITY of the country the government has the hand on regulating what goes through and out of its territorial jurisdiction.
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