5G technology represents regulatory challenge and economic opportunity

Near future

The lack of definition about the entry into force of the General Law on the Protection of Personal Data contributes to postponing a fundamental and urgent debate. Until the 26th of August, Provisional Measure 959/2020 is valid, which postpones the entry into force of the LGPD until May 2021.

Sweden is one of the countries where technology is most widespread in Europe
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If the MP is not voted by the deadline, it loses its effect and the law goes into effect in September. The vote was scheduled for last Tuesday (8/18), but was removed from the agenda at the request of the Mayor, Rodrigo Maia (DEM-RJ).

Now parliamentarians are discussing the most appropriate date for the legislation to take effect. One possibility would be to postpone implementation of the law until December 31. The date also marks the end of the state of public calamity imposed by the advance of Covid-19 in the country.

In addition to disciplining the treatment of Brazilians’ personal data, LGPD is a fundamental part of the debate around 5G technology that should mark the beginning of a new technological reality in Brazil. The auction of 5G bands in the country is scheduled for the first quarter of 2021. This is the largest public offer of capacity for fifth generation mobile technology.

Frequency bands will be negotiated in four bands: 700 MHz; 2.3 GHz; 3.5 GHz and 26 GHz, which will be used for data transmission. The speed of 5G technology is its great differential and what promises to change the way of life, business and the relationship of Brazilians with technology.

In locations where the technology has been adopted, as part of China, South Korea and Sweden, 5G technology already demonstrates part of its potential. And applications range from high-resolution movie downloads in seconds to successful remotely driven car tests and 24-hour surveillance of Internet-connected cameras by security forces.

In addition to all possible applications, the technology will be responsible for the largest data production in history. This mountain of information will basically represent economic, political, military and technological power for its holders. At this point, the discussion is no longer just technological to gain legal and geopolitical contours.

Regulations
Technical standards for the implementation of 5G technology in Brazil are already being developed by Organs regulatory agencies. According to lawyer Wilson Sales Belchior, managing partner of the law firm Rocha, Marinho E Sales Advogados and a member of the National Coordination of Artificial Intelligence of the national OAB, the use of radio frequencies depends on prior authorization from Anatel.

“The right to use radio frequencies is regulated in Law 9.472 / 1997, with the changes brought about by the new telecommunications model established by Law 13,879 / 2019, later regulated in Decree No. 10,402 / 2020”, he comments.

He explains that the companies that won the auction will have to “assume commitments associated with the expansion of the fixed broadband infrastructure, coverage of federal highways with mobile broadband, among others, according to the guidelines established in Ordinance / MCTIC 418/2020”.

Central to the dispute, the National Telecommunications Agency has, so far, adopted technical requirements for certification and commercialization of equipment using 5G technology. The criteria follow international standards such as the European Telecommunications Standards Institute and the global initiative called 3rd Generation Partnership Project.

Belchior also recalls that a fundamental point of this issue is that Anatel adopts the principle of technological neutrality. “The objective is to ensure participation in the notices of all equipment manufacturers that will serve the provision of fifth generation (5G) telecommunication services to the population by operators that use radio frequency bands,” he explains.

Data protection is one of the central points in the debate around 5G technology in the country
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LGPD and Chinese legislation
In addition to technical regulations, another sensitive point in the dispute over the implementation of 5G in Brazil is the treatment of data produced by technology.

The lawyer Marina Dias, from the firm Damiani Sociedade de Advogados, says she believes that, from a legal point of view, data processing is fundamental. “The big point is that the country’s legislation will have the strength to contain possible abuses by these companies,” she explains.

The expert says that the General Data Protection Law is solid legislation and represents a good starting point for the implementation of the technology. “One problem is that our public debate around the issue of data is not mature enough. The LGPD anticipated this debate. People are still unaware of the importance of the issue. Our relationship with data is still promiscuous. This is worrying because the law exists on paper, but, from a practical point of view, the Brazilian will still be very exposed “, he points out.

The lawyer points out that societies in the United States and Europe are more mature in relation to this discussion due to recent scandals such as those involving the company Cambridge Analytica in the US elections and in Brexit.

“A good part of the problems can be mitigated with a robust performance by the National Data Protection Authority. It should act both in raising people’s awareness and in supervising data processing. The sanctions of the LGPD are very high,” she comments.

The possibility of these data being used by spy agencies is one of the main cornerstones of American discourse against Chinese expansion around 5G.

Fernando Sotto Maior Cardoso, lawyer and founding partner of the firm Sotto Maior & Nagel, explains that the debate on data protection in China is already quite mature. “The country already has three laws that deal with data and privacy. The first one is the Cybersecurity Act instituted in 2017 and prohibits online service providers from collecting and selling personal data from their users without consent,” he explains.

Another piece of legislation is the Cryptography Act which divides encryption into two levels: state for state secrets and trade secrets used by ordinary citizens and non-governmental entities.

Finally, we have the implementation of the Chinese Civil Code that protects the privacy of personal data by digital and physical means. “This brings Chinese legislation very close to our legislation and Europe. China is chasing these regulations because they are a real requirement in the rest of the world,” he explains. The legislation is expected to enter into force in January 2021.

The lawyer also mentions that China has a National Technical Committee for Standardization and Information Security, which disseminates good practices in data processing.

Geopolitical developments
For lawyer José Ricardo dos Santos Luz Jr., CEO of Lide China and Institutional Manager of BNZ Advogados, the dispute between the United States and China over 5G may, if well conducted, represent an opportunity for Brazil to advance the economic agenda with two of its main trading partners.

“5G is part of a Chinese initiative called” route belt policy “that has strands ranging from technology to infrastructure and health. By March 2020, 138 countries have already signed agreements related to this policy with China. Contracts for the construction of railways, hydroelectric “, he says.

The lawyer explains that, in the trade race around the 5G market, China came out ahead of its competitors. “Chinese Huawei and ZTE already hold 40% of 5G contracts in the world. Nokia, which is Finnish, has 17%, and Swedish Erickson has 14%. The USA, incredible as it may seem, has not yet reached that level. “, he explains.

The expert understands that the Brazilian authorities should adopt criteria outside the diplomatic pressure of both the United States and China.

China is Brazil’s largest partner with trade of US $ 100 billion in 2019. The United States represents the second most important market for the Brazilian economy, with trade of US $ 59 billion.

“This discussion around 5G technology is a great opportunity. Brazil should not be based on the ideological point of view, but from the point of view of the national interest. The country must prioritize its interests and negotiate goals and policies for development of the country “, summarizes.

5G technology can be seen as a requirement for competitiveness in the global economy that will suffer in the near future with the economic effects of the Covid-19 pandemic. The future is not long in coming and will deserve special attention from legal operators.

Source: Conjur

https://www.conjur.com.br/2020-ago-23/tecnologia-5g-representa-desafio-regulatorio-oportunida