Category: Articles

Ericson Scorsim. Lawyer and Consultant in Communication Law. Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Collection

            The United States Department of Defense created the Global Positioning System (GPS). Its primary purpose is to ensure geolocation information of people, objects, and vehicles, among others. To this day, it’s under the supervision of the US Department of Defense and Air Force.  However, the technology is also authorized for civilian use.[1] Despite the civilian and military benefits of GPS, it is one of the technologies symbolizing the era of electronic surveillance by governments and companies. It is one of the most invasive, as it provides real-time information on the location of people.  Thus, the master technology in real-time data collection by telecommunication networks is a technology considered dual-use, civil and military. We highlight that GPS has numerous applications in the economy: transport (vehicle and cargo tracking), commerce (consumer geolocation for commercial advertising purposes), air navigation, maritime transport (ship navigation), precision agriculture, geosensoring, space, railways, mapping, environmental services, public safety, among others.  For example, agricultural machinery has a GPS system. Without connectivity, however, this agricultural equipment cannot connect to the Internet network.  The GPS system is fully compatible with mobile telecommunications infrastructures by mobile phones. The US Air Force has projects to advance the efficiency of GPS and mobile-cellular networks. Thus, any mobile phone on the globe may be located by GPS. In this aspect, GPS technology is very relevant in intelligence signals collection by the US government. It serves as a tool in military operations in times of war.

            The geolocation system is based on satellite telecommunications infrastructure distributed around the globe. There is currently a constellation of 33 (thirty-three) satellites scattered around the globe that guarantee GPS operation. There is a GPS antenna on Ascension Island, located in the Atlantic, that can collect intelligence signals in the region. 

            There are several bills on GPS. One of them is the Geolocational Privacy and Surveillance Act – GPS Act.[2] There are rules on interception and dissemination of geolocation information. Also, the bill prohibits the use of geolocation information as evidence. Moreover, it provides for accountability in case of civil damage by interception, disclosure, or violation of geolocation information. Also, there is a rule on fraud to obtain geolocation information.

            But what is the reason for this bill? The US investigating authorities often use technology to obtain information on crime suspects’ geolocation movements, sometimes even without a court order allowing that. There was a case taken to the Courts regarding the deployment of a GPS vehicle tracking system to monitor a crime suspect’s movements. There have been abuses in the use of GPS that have motivated civil rights entities to seek the setting of legal limits, to protect the privacy and security of US citizens.[3]

            In another case, the law enforcement authorities adopted software that simulates the signal from cell phone towers to intercept communications without a court order, which led to the case’s judicialization.[4]

            The bill referenced above deals with the limits on deploying satellite signal reception stations in United States territory by foreign governments. The purpose of the rule is to control access to GPS technology by governments from other countries.

            On the other hand, the Fiscal Year 2019 bill provides that funds related to the transport sector cannot be used to finance GPS tracking of passengers in motor vehicles. Thus, the measure seeks to establish parameters for the privacy of US citizens.

            The US National Defense Authorization Act for fiscal year 2020 proposes creating a prototype global satellite navigation program capable of receiving signals to expand the resilience capacity of military positions. These are the systems of countries allied to the US GPS: the European Union’s Galileo system, Japan’s GZSS, India’s Navic. The United Kingdom is studying the creation of its own satellite navigation system. Systems not aligned with the United States: Russia’s GLONASS and China’s Beidou.

            Brazil does not have its own satellite positioning system. Thus, it is a mere user of the United States GPS. Therefore, there are geopolitical risks for Brazil in the adoption of US GPS technology.  Note that the United States has the Foreign Intelligence Surveillance Act that allows the interception of foreign communications.  In this aspect, to protect Brazil’s national defense of and the confidentiality of Brazilian mobile telecommunications networks’ communications, the Brazilian authorities must act more effectively to protect Brazilians’ communications against the risk of interception by foreign authorities.

            A report from Homeland Security to the United States Congress explains that the loss of the GPS signal implies serious damage to the US economy. Thirty days without a GPS signal could cost the US economy $1 billion a day.[5]

With 5G and IoT technology, there are increased risks of GPS monitoring invading individuals’ and companies’ privacy and cyber-attacks on mobile telecommunication networks. Therefore, legislators must act to protect personal and non-personal data.

            GPS technology undoubtedly holds numerous economic utilities. There is valuable information in mobile telecommunications networks. However, this technology deals with personal data related to the geolocation of people. It is the symbol technology of business and state and electronic hypervigilance, including real-time data collection.  There are also risks of cyber attacks on mobile telecommunications networks. Therefore, the protection of privacy and confidentiality of communications and personal data security related to geolocation is a significant factor to be considered by Brazilian legislators and Anatel, the agency responsible for the telecommunications sector.               

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[1] www.gps.gov

[2] The Geolocation Bill reads:  “geolocation information” means with respect to a person, any information that is not the content of a communication, concerning the location of a wireless communication device or tracking device (as defined in section 3177) that, in whole or in part, is generated by or derived from the operation of that device and that could be used to  determine or infer information regarding the location of the person”.

[3]On this topic, see: Farivar, Cyrus. Habeas Data. Privacy the rise of surveillance tech. New York: Melville Publishing, 2018.

[4] Habeas data, privacy the rise of surveillance tech, work cited, p. 174.

[5] Homeland Security. Report on Positioning, Navigation, and Timing (PNT) Backup and Complementary Capabilities to the Global Positioning System (GPS). National Defense Authorization Act Fiscal Year 2017 Report to Congress: PNT Requirements, and Analysis of Alternatives, April, 8, 2020.

Ericson Scorsim. Lawyer and Consultant in Communication Law. Ph.D. in Law from the University of São Paulo – USP. Author of the Communications Law Collection.

The United States and China dispute global leadership over 5G technology. China has Huawei as one of its main players. The United States is lagging behind in this technology race, as there is no US company leading in 5G technology. The United States, claiming reasons of a threat to its national security, has banned Huawei from providing 5G technology to its telecommunications networks.  The US government accuses the Chinese company of promoting espionage on behalf of the Chinese government. There are also charges of intellectual property and data theft. The company denies all severe charges. Despite President Biden’s recent election, the tendency is for the US to maintain this policy of excluding Chinese technology from telecommunications networks. Also, the United States is pressing allied countries to align their geostrategic position to ban China’s 5G technology.

 In this sense, the US government has threatened to no longer share intelligence information if allied countries do not exclude such 5G technology from their telecommunications networks. Thus, the US government has adopted the Clean Path, i.e., 5G networks, to exclude equipment and technology supplied by Chinese companies in cloud computing infrastructures, telecommunications network infrastructures, internet networks, application stores, and submarine cable networks. For the moment, there are signs that the Brazilian government may integrate this Clean Path program to exclude the supply of Huawei 5G technology in its national telecommunications networks. The US government’s narrative has been the subject of strong criticism. As the United States is not competitive in 5G technology, has it decided to adopt a protectionist tactic with the denial of global free trade because it is losing the competition to China? Another issue is that the US government accuses China of spying. But doesn’t the United States carry out espionage against foreign governments, companies, and people? It should be noted that in 2013, the Brazilian National Congress opened a Parliamentary Commission of Inquiry to investigate espionage activities conducted by the National Security Agency of the United States against Brazilian targets: citizens, companies, and authorities. It is important to note the institutional context of the United States.  The Communications Assistance for Law Enforcement Act (CALEA) obliges telecommunications companies to adopt equipment standards that allow the interception of telecommunications communications.  In principle, the law applies only to US companies and those located in US territory. Another US law is the Foreign Intelligence Surveillance Act (FISA), which allows US authorities to intercept communications abroad, including allowing the collection of intelligence signals (data relevant to US national security). Therefore, under this law, mass electronic surveillance of foreign governments, companies, and persons. In this context, global technology companies such as Google, Apple, Facebook, Amazon, among others, may be asked to collaborate with the US government on national intelligence issues. Another law is the Cloud Act, which allows US authorities to access data stored on servers located abroad in the event of investigations.

Additionally, the Export Control Reform Act deals with control measures in the export of technologies considered dual use, i.e., with both civil and military use. Thus, microchips, satellite technologies, fiber optics, submarine cables, GPS are considered dual-use technologies. In fact, the Internet itself is considered a dual-use infrastructure. Therefore, the US government seeks to restrict Huawei’s access to US companies’ microchip technology.  Also, the United States leads an international intelligence alliance called Five Eyes, along with the United Kingdom, Canada, Australia, and New Zealand. This alliance serves to collect intelligence signals across the globe. On the other hand, the National Security Agency is the government agency responsible for conducting electronic surveillance activities and collecting intelligence signals for the United States across the globe. Remember that the NSA has already conducted espionage against Brazil, supposedly an ally of the United States, in 2013.  Given this context, it is up to Brazil, as a sovereign nation, to adopt the most appropriate measures to protect the confidentiality of the communications of Brazilian governments, companies, and citizens. 

The Brazilian Congress is the competent authority to debate this issue. The President of the Republic does not have the power to deliberate exclusively on this matter. The mission of regulating 5G is shared between the government and the National Congress, precisely because it involves national defense issues.  Note that the European Union has adopted an intermediate solution to partially exclude Chinese technology from central areas of telecommunications networks, allowing its presence only in peripheral areas. It is unacceptable that Brazil cannot defend itself against the United States or against China or any other country.

Faced with the 5G issue, any omission by the Brazilian government and the National Congress to adopt measures to protect the integrity and confidentiality of communications will represent a serious attack on national sovereignty. After all, Brazil is not the backyard of the United States; it must protect its national interest above the interest of any allied country. In the geopolitical game between the United States and China, Brazil must protect the integrity, confidentiality, and privacy of Brazilian communications.  

Ericson Scorsim. Lawyer and Consultant in Communication Law. Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Collection.

The United States government has passed its national strategy for emerging and critical technologies. The goal is to ensure the United States’ leadership in emerging and critical technologies. Thus, it seeks to promote primary innovation for national security in research and development. Also, another strategic goal is to protect the competitive technological advantages of the United States.

In this sense, it wants to engage the private sector in cooperation with the government sector. Ultimately, the strategic national security goal is to advance the United States’ influence in the context of hypercompetition among countries.  The priority actions for the promotion of primary national security innovation are: the development of a global workforce, attracting and retaining inventors and innovators; stimulating the use of private capital and private experience to build and innovate; reducing regulations, policies, and bureaucratic processes; leading the development of technological norms, standards, parameters and models of governance; supporting the development of primary innovation among academic institutions, laboratories, support infrastructure, investment funds, and industry; prioritizing research and development in the government budget; developing and adopting technological applications within the government; encouraging public-private partnerships; building technology partnerships with allies and partners.

Another strategic goal is to protect US technology, with collaboration between companies, industries, universities, and government agencies. Thus, the priority actions to protect the technological advantage of the United States are: ensure that competitors do not adopt illicit means to acquire US intellectual property, research, development or technology; require design security at the preliminary stages of technology development, and cooperate with allies and partners to take similar actions, to protect the integrity of the research and development enterprise through research security measures in academic institutions, laboratories, and industry, with balanced contributions from foreign researchers; ensure the appropriation of technologies through the use of export control and regulatory laws as well as multilateral export regimes; engage allies and partners to develop their own procedures similar to those in the Committee on Foreign Investment in the United States (CFIUS). The US government has adopted a list of emerging and critical technologies: communications and networking technologies, semiconductors and microelectronics, space technologies, advanced computing, advanced conventional weapons, advanced engineering materials, advanced manufacturing, advanced sensors, airborne technologies and devices, agricultural technologies, artificial intelligence, autonomous systems, biotechnologies, chemical, biological, radiological, and nuclear materials mitigation technologies, data science and storage, leading-edge computing distribution technologies, energy technologies, human-machine interfaces, medical and public health technologies, quantum information science.

In short, the US national security policy focuses on maintaining its global influence and competitive edge in advanced technologies. The measure is a reaction to China’s advances in emerging and critical technologies. This US policy impacts 5G technology, as much of the equipment is integrated by semiconductors (microchips) manufactured by US companies. Besides, the government establishes a strict export control of semiconductors related to 5G technology to restrict access by Chinese companies due to the trade dispute with China. On the other hand, a representative of the US government declared the opening of a credit line through Exim Bank (the United States Bank of Imports and Exports) to finance the acquisition of 5G technology by telecommunications companies in Brazil. Also, National Security Advisor Robert O’Brien was in Brazil on an official mission, with meetings with the federal government and Fiesp – the São Paulo Federation of Industries.

As one can see, 5G technology is a matter of interest for US national security. But, of course, this interference of the United States in Brazil’s national affairs must be analyzed from the perspective of national sovereignty. 

Since when is it up to the United States to “protect” Brazil’s telecommunications networks?

It is known that the United States, in its geostrategic vision, sees Brazil as an area of its strategic environment in the southern hemisphere. The United States is suspicious of Huawei, accusing it of spying practices. But in 2013, Brazil was the target of international espionage. And by whom? By the United States National Security Agency. This has even led to the establishment of a Parliamentary Investigation Committee. Also, Huawei is already present in Brazil as a supplier of telecommunications infrastructure equipment for almost two decades. So far, there is no reason to distrust its telecommunications equipment. We do not seek to defend either the United States or China. All that matters is Brazil First! Brazil is being used as a “satellite country” in the United States and China’s geopolitical dispute. For this reason, positioning oneself openly on one side of the geopolitical game will imply suffering consequences, and Brazilian companies will be under more significant geopolitical risks. Thus, a geostrategy of technological neutrality may be the most appropriate path to protect Brazil’s interests. Therefore, Brazil’s national interest requires the protection of its telecommunications network infrastructure from the risks and threats of espionage, whether from US intelligence services or China and/or third parties. In this regard, any partnership and/or alliance that Brazil enters must be supported by relationships of trust, loyalty, reciprocity, and good faith.  If the partner is unreliable and/or does not show trust, the relationship becomes problematic. A policy of blind trust in the United States is dangerous for Brazil. Intelligent geostrategy for Brazil on 5G requires prudence, assessment of the facts, and geopolitical pragmatism, but also verifying the historic hegemonic position of the United States in the continent.

The most sovereign geostrategic alternative is for Brazil to take the lead in technological leadership, forming a range of international allies, in addition to the United States and China. Thus, the national economy and the concept of national defense must be considered, with the Brazilian interest prevailing, and not American First! The omission of the Brazilian State to protect telecommunications networks’ security against any invaders is an attack on national sovereignty.

The matter of 5G poses geopolitical risks, challenges, and economic opportunities for Brazil. At stake is the future of the digital economy in Brazil and the respective influences and control.

Ericson Scorsim. Lawyer and Consultant in Communication Law. Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Collection.

Copel (Companhia Paranaense de Energia – the electricity utility company from the Brazilian State of Paraná) published a public offering auction notice for 100% (one hundred percent) of the shares of Copel Telecomunicações S.A., a subsidiary of Copel. Please note that Copel Telecomunicações is only authorized to provide specialized services, in the sub-modality of specialized telecommunications network and multimedia communication services. Thus, the company is authorized to provide broadband fiber optics internet services and telecommunication services.

Its main asset is the ownership of a fiber-optic network in the territory of Paraná. The criterion for selecting the auction winner is based on the highest price offered for the shares. The auction is coordinated by B3 S.A, Brazil, Bolsa, Balcão, the Brazilian Stock Market.

The minimum bid is one billion, four hundred and one million, ninety thousand, and three hundred reais (BRL 1,401,099,300.00). The auction is open to Brazilian or foreign companies, financial institutions, investment funds, supplementary pension plans, among others. In the case of participation of investment funds, the administrators must present a power of attorney for participation in the auction and assuming the obligations arising therefrom. Companies may participate as a consortium. The price proposal collateral to be pledged must be in the amount of seventy million, fifty-four thousand, and five hundred and fifteen reais (BRL 70,054.515.00). 

There are rules in the public offering notice on legal qualification and proof of fiscal and labor regularity. Also, participants must fill out the statement templates provided for in the annexes to the public notice, including the statement of no cross-ownership in violation of the Brazilian legislation, which forbids controlling more than one telecommunications or broadcasting company.  Also, interested parties may make technical visits to the company headquarters to obtain further information. 

The interested parties must sign a confidentiality agreement to perform the due diligence procedures at the company headquarters. The final deadline for challenging the public notice is October 28, 2020. That is also the final deadline for sending questions in the virtual information room – data room.

In its turn, the Public Tender Committee will disclose the ruling on any challenges to the public notice by November 3, 2020. The documents must be delivered by November 5, 2020. The signing of the share purchase agreement is scheduled for January 14, 2021.

Ericson Scorsim. Lawyer and Consultant in Communication Law. Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Collection.

The Department of Defense has released guidelines for military applications of 5G technology.[1] Thus, the frequency range 3450-3550 MHz will be used for fixed and mobile radar operations on ships and aircraft platforms.

These defense systems include air defense, missiles and arms control in battlefields, air traffic control, and security. A further 100 (one hundred) MHZ was added, so the U.S. government has a 530 megahertz range in the average frequency range 3450-3980 Mhz to expand its capacity in 5G networks.

The Department of Defense has announced investments in 5G networks on military bases. Military bases were selected for access to the frequency spectrum, fiber optics, and wireless network infrastructure. One of the bases called Lewis-McChord, in Washington, received investments in augmented reality applications and 5G virtual reality military training. The following countries participated in this project for the U.S. government: GBL System Corp. (GBL), AT&T, Oceus Networks, Booz-Allen Hamilton.

The purpose of these 5G applications is to serve military training.  At the naval base in San Diego, California, tests are being held on 5G applications in naval logistics operations related to the transportation of material and equipment between ship and naval base. The following companies are cooperating in this project:  AT&T (4G and 5G network assembly), GE Research (tracking and analysis models), Vectrus Mission Solutions Corporation (Vectrus, inventory management, network security, robotics for cargo movement, and environmental sensors), Deloitte Consulting LLP (Deloitte, robot applications, unmanned air vehicle and drone systems, biometrics, cameras, virtual and augmented reality, inventory control). At another naval base, the Marine Corps Logistics Base in Albany, Georgia, there are 5G vehicle fleet control projects.

The companies participating in this program are: Federated Wireless (offers standards and open solutions for indoor and outdoor testing of 5G equipment), GE research (providing solutions for real-time tracking, modeling, and forecasting analysis), KPMG LLP (automated applications and process scanning for product movement), Scientific Research Corporation (SRC – offers 5G solutions for automated asset management and logistics control, and asset tracking, environmental management, and entry control). At Nellis Air Base in Nevada, there are 5G air command and control, space and cyberspace projects. The goal is to update the command and control architecture in combat situations. As a government partner, AT&T will provide the 5G environment and connectivity support to the airbase operations. There are dynamic spectrum utilization projects at Hill Air Base in Utah, which will enable the Air Force to dynamically share the spectrum of 5G mobile services in the 3.1 to 3.45 GHz frequency range.

The companies partnering with the Department of Defense in this project are: Nokia (testing with open standards, including with antenna systems), General Dynamics Mission Systems (GDMS – coexistence of applications that include tracking radar signals to support access to radio frequency networks), Booz Allen Hamilton (BAH – uses artificial intelligence to enable the coexistence of systems with rapid response to interference), Key Bridge Wireless (adaptations to the commercial frequency spectrum in the range 3.1 to 3.45 GHz with control of interference risk), Shared Spectrum Company (SSC – preservation of 5G communications through radar detection and dynamic frequency spectrum access capability), Ericsson (adaptation of 5G infrastructure to provide machine learning services for 5G capability and frequency spectrum aggregation.

In the words of the U.S. Department of Defense, 5G communications technology is critical to U.S. defense modernization programs and essential to U.S. national security and economic security. Thus, the Department of Defense is focused on experimenting and prototyping the use of dual-use 5G technology to provide high speed and fast response by connecting wireless devices of the military forces.

In short, the hiring by the Department of Defense of private companies serves several purposes: ensuring connectivity in 5G technology to military bases and, thus, the installation of private communications networks on military bases, integration between radar systems and 5G technology, communications command and control systems, control of the risk of frequency interference, dynamic radar frequency sharing and mobile 5G technology, use of artificial intelligence in frequency management, application of machine learning in the coexistence of dual-use 5G technology, control of military assets by technology, logistical control in the transportation of military equipment and weapons, military training with augmented and virtual reality in 5G, among other applications.

 As can be seen, the United States’ defense sector maintains programs to modernize its armed forces, relying on private sector participation. 5G technology is pure innovation, which is the reason for private participation in updating the defense sector.   

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[1] US, Department of Defense: Honorable Dana Deasy, Department of Defense Chief Information Officer: issued the following statement.

Ericson Scorsim. Lawyer and Consultant in Communication Law. Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Collection.

The U.S. government has banned the WeChat application in the United States through a presidentialorder (Executive Order on Addressing the Threat Posed by WeChat).

According to the U.S. government, as the application belongs to a Chinese company, it is a threat to national security, foreign policy, and the United States’ economy.

 The basis for this decision Executive Order 13.873 of May 15, 2019, on securing the information and communications technology and services supply chain, as well as the law that granted emergency economic powers to the President.

The application has messaging, social media, and electronic payment functions. It is also claimed that the application captures the personal data of Americans. The presidential decision clearly denies freedom of trade on the grounds of protection of national security.

As for the size of the WeChat platform’s communications, a U.S Court granted an injunction to ensure freedom of expression through the application.[1]However, one of the aspects to be examined relates to the issue of the digital payments market. WeChat is a powerful digital payment application owned by the Chinese company Tencent Holdings Ltd. There are millions of users of this mobile all around the world. Thus, the presidential decision holds a hidden issue related to market competition. By restricting WeChat, what the  U.S. government is in fact doing is protecting U.S. companies in the digital payments market:  Big Techs and credit card companies.  One of the potential competitors in the digital payments market for WeChat is WhatsApp, a Facebook application. The digital payments market moves billions of dollars globally. Also, digital payments are essential for e-commerce.

On this, Facebook recently announced its intention to create a digital currency called Libra, even creating a business association to promote the project. The leading U.S. credit card companies initially decided to participate in the project. Later, they chose to disconnect themselves from the program. Central Banks of several countries are reacting to Big Tech’s initiative in the financial sector. Central Banks perceive the systemic risk when Big Techs enter the financial market, which may disrupt global financial institutions.

One of the reactions to this global movement was the creation of the digital payment system called PIX. It is a digital payment system, organized through a software network that makes financial compensations between the participating economic agents (payer, recipient, and intermediary).

There are numerous advantages in PIX: the time of payments (payments can be made any day, any time, regardless of weekends, holidays, nighttime), reduction of transfer costs, reduction of the risks inherent to cash transfers, among others. The Brazilian Central Bank regulates the subject of PIX. Possibly, this system will produce other innovations in the financial market.  There are challenges, risks, and opportunities with PIX. In short, the U.S. government is applying restrictions to freedom of trade, on the supposed grounds of national security.

In reality, it ends up protecting its Big Techs from the competitiveness of Chinese companies. The international community must discuss this issue of global free trade, e-commerce, and digital payments to avoid abusive government practices.  It must be noted that PIX is a first step in democratizing access to the financial market, as well as in financial inclusion.

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[1]Scorsim, Ericson. United States Courts guarantee freedom of expression through the WeChat application. Portal: www.direitodacomunicacao. September 25, 2020

Ericson Scorsim. Lawyer and Consultant in Communication Law, with a focus on Technologies, Media, and Telecommunications. PhD in Law from the University of São Paulo (USP).

Mercosur and the European Union entered into a proposed trade agreement with impact on various economic activities. The aim is to promote trade freedom of services and business establishments. But the agreement still must be approved internally by the legislature of each of the participating countries. In any case, it is an important step in bringing the countries of South America, which are part of Mercosur, closer to Europe. Regarding the telecommunications industry, there are several provisions that authorize service providers from any of the countries that have signed the agreement to establish, build, acquire, assign, operate or provide telecommunications networks or services. Broadcasting services, as well as services providing editorial content are excluded from the commercial agreement.

According to the agreement, the telecommunications regulatory authorities must publish their regulatory acts in a clear manner, to simplify their understanding. In addition, regulatory procedures must be impartial, with respect to all market participants. Licenses to provide telecommunications services should be granted, where possible, following a simplified procedure. The reasons for denying a license to provide telecommunications services must be known. Countries should adopt practices to protect competition and repress abuses by the dominant power. Also, the parties must ensure that the major telecommunications providers guarantee the right of access to other competitors in a reasonable and non-discriminatory manner. Any telecommunications service provider has the right to negotiate interconnection with other providers. For scarce resources such as radio spectrum, public allocation policies should be objective, timely, transparent, and non-discriminatory.

The frequency allocation plan must be publicly available. Each country has the right to define what the universal services are. On the other hand, the Parties must ensure the confidentiality of telecommunications and data traffic on public telecommunications networks to avoid arbitrary or unjustifiable discrimination in the trade of such services. Furthermore, the parties must ensure transparency and reasonable prices for international roaming services, to promote trade growth between countries and consumer welfare. The agreement also provides for freedom of trade.

However, it establishes some technical barriers to trade. Thus, Annex I contains safety rules regarding electronic and electrical equipment. Also, on the electromagnetic compatibility of equipment using radiocommunication. In addition, there are standards on energy efficiency certificates of products. And the restriction of toxic substances in electronic and electrical equipment. Moreover, it holds procedures for the declaration of technical conformity of the supplier of products, based on their responsibility before a certification body. And, still, there is the possibility of international mutual recognition through a validation system. In this regard, a Mercosur country may request technical recognition based on its legislation and regulations in bilateral agreements, including memorandum of understanding. In being recognized as valid the declaration of technical conformity, according to European Union’s procedure, the report of the test carried out by the advisory bodies located in the Mercosur countries, the document is valid before the European Union and its technical regulations.  In addition to these subjects, the agreement provides for rules on e-commerce. For the time being, the agreement between Mercosur and the European Union is still under negotiation.

The parliaments of the respective countries integrating the two regional blocs must adopt the procedures for approval of the aforementioned international treaty and incorporate it into their internal law. It should be noted that the European Union and the United States, in 1999, already signed an agreement on mutual recognition of telecommunications equipment and electromagnetic compatibility of products.[1] Also, the United States and the United Kingdom signed an agreement for mutual recognition of telecommunications equipment in 2011.[2] In short, this agreement between Mercosur and the European Union is an important step towards the international trade of telecommunications products and services, as well as the affirmation of international law related to the mutual recognition of declarations of technical conformity for telecommunications equipment, harmonizing international rules that impact telecommunications services.  Even more so now in the context of 5G technology and IoT devices, this international regulatory standardization is essential.  As mentioned, the integration of the international agreement depends on ratification by the parliaments of the countries that make up the two regional blocs, something that will take a few years.

[1] Agreement on mutual recognition between the European Community and the United States of America, which encompasses: Telecommunication equipment, electromagnetic compatibility (EMC), electrical safety, recreational craft, pharmaceutical good manufacturing practices e medical devices.

[2]See: Agreement on mutual recognition between The United States of America and The United Kingdom of Great Britain and Northern Ireland, covering: telecommunications equipment, electromagnetic compatibility (EMC0) and pharmaceutical good manufacturing practices (GMPS0.

Ericson Scorsim. Lawyer and Consultant in Communication Law, focusing on Technologies, Internet, Media and Telecommunications.  PhD in Law from the University of São Paulo (USP). Author of the Communications Law Collection.

The US government has announced that it will ban the apps TikTok and WeChat. According to the government, applications originating from Chinese companies pose risks to U.S. national security, as they allow for the collection of sensitive data from U.S citizens and businesses.  According to the Executive Order issued by President Donald Trump under the International Emergency Economic Power Act and National Emergencies Act, and Executive Order 13.873 (securing the information and communications technology and services supply chain), WeChat, an application provided by Chinese company WeChat, captures immense amounts of U.S. data, which poses a national security risk.[1] In turn, the Executive Order on TikTok, a mobile application provided by the Chinese company Bytedance, adopts the same reasoning, and mentions that the video sharing application also collects huge amounts of data, including geolocation data and internet browsing history, representing a threat to the national security of the United States.[2] 

There is a risk that these apps are collecting personal data and tracking the location of federal government employees and contractors to obtain personal information for purposes of blackmail, extortion and/or corporate espionage. This national security policy is aligned with the following U.S. State Department strategies: i) Clean Carrier – the assurance of disconnection of Chinese telecommunications companies from the U.S. telecommunications networks; ii) Clean Store – the removal of untrustworthy applications of Chinese origin from U.S. company application stores given privacy risks, content censorship, and dissemination of advertising and misinformation; iii) Clean Apps – preventing Chinese mobile phone manufacturers from installing or making applications available in their application store, so U.S. companies must remove applications from the Huawei application store; iv) Clean Cloud – preventing sensitive U.S. citizen and business confidential information related to their intellectual property from being stored and processed in cloud computing systems related to adversary countries, such as Alibaba, Baidu, China Mobile, China Telecom, and Tencent; v) Clean Cable – ensuring that submarine cable networks connecting the United States to other countries are not subject to the collection of intelligence signals by the Chinese government, in relation to the global Internet, and this guarantee should be extended to other countries impacted by submarine cable networks. As noted, the targets of the U.S. foreign policy strategy toward China are: telecommunications network infrastructure, application stores, applications themselves, cloud computing infrastructure, and submarine cable networks.

The U.S. government is studying measures to order Internet service providers to block TikTok and WeChat applications. So, for example, Google may be forced to prevent the installation of Chinese applications on its Android software.  Also, Amazon may be required to remove Chinese applications from its store. Another possible measure is the obligation to divest TikTok and WeChat operations in the United States, thus US citizens and companies could be forced to divest themselves of investment interests in Chinese companies.

The measures are adopted in the context of the dispute between the United States and China for global leadership. The United States sees China as a threat to its global leadership, especially in the face of 5G technology, led by Chinese company Huawei.

[1] Executive Order on addressing the threat posed by WeChat, August 6, 2020.

[2] Executive order on addressing the threat posed by TikTok, August, 6, 2020.

Ericson Scorsim. Lawyer and Consultant in Communication Law. PhD in Law from the University of São Paulo (USP). Author of the book collection on Communication Law, with a focus on Technologies, Media, and Telecommunications.

The European Union, under the leadership of France and Germany, is carrying out the project called GAIA-X for data infrastructure. The aim is to strengthen the European Union’s sovereignty over data to encourage the creation of a digital ecosystem.  According to the program’s official documents: “data sovereignty in the sense of complete control over stored and processed data and also the independent decision on who is permitted to have access to it”.[1] And also on data sovereignty: “sovereign data services which ensure the identity of source and receiver of data and which ensure the access and usage rights towards the data”.[2] In the text, one of the stated objectives is: “protection against non-European extra-territorial regulatory: protection again t abuse of national regulations that allow to access data stored in cloud infrastructures or services is an essential part of the European federated data infrastructure“.[3] The data infrastructure is a federative infrastructure that consists of components and services that make it possible to access, store, exchange, and use data according to pre-defined rules.

The digital ecosystem is the network of developers, providers and users of digital products and services. In short, the aim of the GAIA-X project is to provide incentives to European cloud computing companies, ensuring the competitiveness of European Union countries. It is categorically stated that the project is a geostrategic response by the European Union to the passing of the Cloud Act by the United States. It is also a reaction to the competitiveness of the U.S. companies IBM, Microsoft, Google, and Amazon, which are leaders in the infrastructure as service market.   There is only one global Chinese competitor in this segment: Alibaba.

The project is set in the context of the unique data market and the strengthening of the European digital economy. For the European Union, there is the public policy of defending the data of European industry. Starting in 2021, the project is expected to be completed with the installation of cloud computing infrastructures. One of the main points of the project is to ensure interoperability between systems to enable migration to European cloud computing companies. Another goal is to ensure control over data on European territory. This European Union geostrategy for strengthening data infrastructure capacity can serve as an inspiration for Brazil. In this respect, a national policy of incentives for data infrastructure capacity is needed, aligned with an industrial policy and digital trade policy, and including national defense policy. These public policies are essential for the country’s adaptation in the 5G technology and  Internet of Things scenario, allowing for the best economic use.  After all, the country that controls the 5G digital infrastructure controls its digital economy. In Brazil, the main telecommunication companies present here have European headquarters (Tim and Telefonica, except for Mexico’s América Móvel, and Oi and Algar Telecom).

These telecommunications companies have the fundamental role of deploying connectivity in Brazilian territory. Thus, they have the ultimate responsibility for defining how best to provide 5G technology. Also, the main suppliers of 5G technology are European: Ericcson (Sweden) and Nokia (Finland). In Asia, there’s South Korea with Samsung. Thus, Brazil has other interesting geostrategic options regarding 5G technology that go beyond those offered by the United States and China. The best thing for Brazil is to maintain neutrality in this conflict for global leadership between the United States and China. But the country can take advantage of the opportunities in redefining the global 5G technology supply chain, with incentives to attract foreign investments in this production chain here in Brazil, attracting investments in microchip factories and installation of data centers. It is essential for Brazil, like the European Union, to reflect on the risks of abuse in the application of U.S. legislation (Cloud Act), which allows access to data located in other countries. It is key for Brazil to affirm its sovereignty in cyberspace, strengthening its capacity for cyber defense against possible risks of abuses in the application of foreign legislation in an extraterritorial manner. 

In the coming decades, 5G, IoT, artificial intelligence, and big data will be the driving forces of the digital economy, which is why it is essential for the country to prepare itself for this global scenario.

[1] Project GAIA-X. A Federated Data Infrastructure as the Cradle of a Vibrant European Ecosystem. Federated Data Infrastructure. Federal Ministry for Economic Affairs and Energy and Federal Ministry of Education and Research.

[2]Work cited.

[3] Project GAIA-X. A Federated Data Infrastructure as the Cradle of a Vibrant European Ecosystem. Federated Data Infrastructure. Federal Ministry for Economic Affairs and Energy and Federal Ministry of Education and Research.

Ericson Scorsim. Lawyer and Consultant in Communication Law, with a focus on Technologies, Media, and Telecommunications. PhD in Law from the University of São Paulo (USP). Author of the Communications Law eBook Collection.

The Brazilian government is about to define its geostrategic position on Huawei’s 5G technology. It seems the decision will be postponed till 2021, as reported in the media. In other articles, I have explained the context of this controversy between the United States and China related to 5G technology .[1] In this article, the focus is on explaining the geopolitical risks for Brazil on the subject of its own national security and its national economy. Now, 5G technology is related to the risks of interference by both the United States and China intelligence services, which aim to collect data and communications. Therefore, Brazil and Brazilians can become targets of the intelligence services of those countries.

For Brazil, the federal, state, and municipal governments, and Brazilian companies, there are geopolitical risks in relation to the United States. Currently, the global North American technology companies are shaping Brazil’s digital ecosystem and communications networks. Google, Microsoft, Amazon, YouTube, WhatsApp, Twitter, Apple have defined new forms of relationships in the digital[2] environment. However, these U.S. technology companies are subject to U.S. law and U.S. agencies. There are even systems of cooperation between these companies and the United States Department of Defense. For example, Google is required to sign a cooperation agreement with the U.S. Department of Defense regarding the installation of a submarine cable connecting the United States and Hong Kong to allow inspection of the cables.

            The central issue in relation to 5G technology relates to the ability to collect intelligence signals, which is why the United States has imposed restrictions on the Chinese company Huawei, on the grounds of risk to its national security. According to the United States, Huawei must collaborate with China’s national intelligence services, as required by China’s National Intelligence Act. For the US government, there is a risk that Huawei will supply covert telecommunications equipment, with backdoors that will allow for espionage. So some experts argue that the Huawei equipment are actually Trojan Horses, just like the gift given by Athens to the Trojan people. It turns out that inside the statue of the horse were Athenian soldiers who attacked the Trojans. That is why trojan horse became known as a trap given to the enemy.

But one of the central objectives of U.S. foreign policy is to contain China’s advance in 5G technology.

The irony is that the United States also has legislation with the capacity to force technology companies to collaborate with its national intelligence services, as well as with the Department of Defense. In addition, there is the extraordinary ability of the National Security Agency to intercept communications anywhere on the globe, as well as to conduct electronic espionage against anyone anywhere in the world. As US economist Jeffrey Sachs explains: “Ironically, though predictably, U.S. complaints partly reflect America’s own surveillance activities at home and abroad. Huawei’s Chinese equipment could make it more difficult for the U.S. government to covertly monitor it. However, illegitimate surveillance by any government should end. Independent monitoring by the United Nations (UN) to restrict these activities should become part of the global telecommunications system. In short, we should choose diplomacy and institutional safeguards, not technological warfare”.[3]

            In summary, 5G technology is directly related to the ability of governments to collect intelligence signals. This method of intelligence refers to the extraction of data, by hardware, software, Internet networks, telecommunications networks, submarine cables, satellites, mobile phones, televisions, electronic devices. The United States is able to collect intelligence signals, as the history of National Security Intelligence (NSA) shows. Moreover, for the time being, the United States is the global leader in microchip technology, essential inputs for technology in the central and peripheral areas of the 5G network. Huawei owns both central and peripheral 5G technology. The other competitors are Ericcson and Nokia. Now, the company and/or intelligence agency that is able to collect intelligence signals can also extract data, infiltrate electronic surveillance devices, analyze data, decrypt data, and store data, as well as retain and delete data. It can also modify the data flows carried over the Internet, as well as change the traffic route of the data packets. This is what the US government suspects in relation to China Telecom and China Mobile, accused of diverting the route of US communications into China. Faced with this, there is the proposal to revoke the licenses of these Chinese companies.

For the United States, China is considered an adversary country because it threatens its global leadership. Thus, Huawei is deemed a company with ties to the government of an opposing country. For Brazil, China is not an opponent, on the contrary there are good trade relations between the two countries. So, at first, there is no reason to be suspicious of Huawei. On the contrary, for decades Huawei has been the main supplier of 4G technology for telecommunications companies in Brazil.

            But there is another factor in this story not yet properly clarified. It is the context of the United States and of applying its legislation in an extraterritorial manner, with the exercise of its jurisdiction almost universally, especially when it comes to its national intelligence services.

The current policy of the Brazilian government of automatic alignment with the current government of the United States ignores this fact, something that is detrimental to Brazilian interests. However, the Brazilian government cannot ignore this reality with potential for collateral damage to Brazil’s national economy and our national security. Brazil’s proximity with the current US government may produce positive effects for our national economy, but one cannot ignore the geopolitical risks for Brazil, its sovereignty, and its jurisdiction.

Thus, for Brazil, its government, and Brazilian companies, citizens, and institutions, there is the geopolitical risk of extraterritorial application of U.S. legislation: Leadership 5G Act (the U.S. law that sets technical standards for 5G), Build Act (Better Utilization of Investments Leading to Development Act of 2018[4]), Foreign Intelligence Surveillance Act (FISA, allows U.S. intelligence services to conduct electronic surveillance of foreign governments and authorities and businesses), National Intelligence Law (application by the National Security Agency of measures to intercept foreign nationals’ electronic communications, as well as requiring U.S. companies to provide data and metadata on users of applications, social networks, fiber optic submarine, and satellite cable network infrastructures, among others), Communications Assistance for Law Enforcement Act (CALEA – technical requirements for telecommunications manufacturers to facilitate interception of communications), Cloud Act (Clarifying Lawful Overseas Use of Data Act – authorization for U.S. authorities to access the content of private communications stored by companies[5]), Cyber Intelligence Sharing and Protection Act, Agriculture Improvement Act of 2018 (incentives for Internet installation in rural areas, data collection system for crops, geospatial technology standards, etc.).[6]), National Defense Authorization Act (rules for control of arms sales as well as military training for Brazil, with provision for reporting of human rights abuses by Brazilian security forces), US Patriot Act (measures to combat terrorism), Geospatial Data Act (law dealing with the collection, processing, storage of geospatial data)[7],International Cooperation Treaty on Intelligence Sharing (Five Eyes), and Foreign Corrupt Practices Act (U.S. anti-corruption law with potential application on Brazilian[8]companies), Foreign Investment Risk Review Modernization Act of 2018, Export Control Reform Act of 2018[9], among others.

There is a list of numerous authorities of U.S. federal agencies that can act and impact Brazil’s national interests: United States Presidency, Department of Defense[10], Department of Justice[11], Department of Energy[12], National Security Agency (NSA[13]), Central Intelligence Agency (CIA[14]), FBI[15], Defense Advanced Research Projects Agency (DARPA[16]), National Geospatial-Intelligence Agency (NGA[17]), National Reconnaissance Office (NRO[18]), National Oceanic and Atmospheric Administration (NOAA[19]), Committee on Foreign Investment in the United States (CIFUS[20]), Federal Telecommunication Commission[21], Security Exchange Commission, Foreign Intelligence Court[22], Securities on Exchange Commission[23], Bureau of Economic and Business Affairs, Cyber Infrastructure (CISA), Southern Armed Forces Command (U.S South Command[24]), among others.

I also believe it is in the interest of telecommunications companies operating in Brazil to assess the geopolitical risks of the Brazilian government’s position on 5G technology.  Any wrong move by the Brazilian government may compromise the level of investments in 5G technology in the country. Likewise, companies supplying 5G technology to telecommunications companies must assess these geopolitical risks, related to Brazil’s position. Any company with global operations has a responsibility to its investors, which is why it is necessary to analyze the political risks related to the Brazilian government, the United States, and China regarding 5G technology.

In short, given its domain of technological evolution, the United States can access data outside of its territory, including for the purposes of extending its jurisdiction almost universally (via intelligence and/or other services). Thus, it is up to Brazil, grounded on its sovereignty, to adopt national self-defense measures, preventing itself from being entirely subordinated to the foreign policy of the United States to the detriment of Brazilian national interests.

Brazil has other interesting geostrategic options regarding 5G technology that go beyond the United States and China. Brazil could establish partnerships with the European Union to encourage the production of 5G technology within the Brazilian territory, after all, the main suppliers of this technology are European. Also, Brazil could partner with Asian countries for the development of technology here, having as potential partners: Japan and South Korea, among others. Finally, Brazil could become a great international leader in 5G technology if it enters partnerships with the appropriate partners and knows how to preserve national interests, with a clear position of national defense against espionage from either the United States or China. Brazil cannot be held hostage to the geostrategic interests of the United States and/or China or any other country. The defense of national sovereignty is essential, ensuring the protection of personal and non-personal data (industrial data, financial data, commercial data, data of national wealth, geospatial data, etc.), as well as the protection of critical national digital infrastructures essential to the connectivity of the country.

[1]Scorsim, Ericson. A tecnologia de 5G da Huawei nas redes de comunicações: o alvo geoestratégico da lawfare imposta pelos Estados Unidos contra a empresa e China, published on the website: www.direitodacomunicacao.com, June 8, 2020.

[2] As an example, Petrobras refused to supply fuel to two cargo ships with Iranian flags on the grounds of economic sanctions imposed by the United States against Iran through the Office of Foreign Assets Control (OFAC) and the Countering America’s Adversaries through Sanctions Act. One of the ships was carrying urea, the other maize. The companies in charge of the ships went to court in Brazil. In the end, the Brazilian Supreme Court ruled that the Iranian ships did not have their names on the U.S. Treasury Department’s “blacklist,” which lists the targets of their economic embargoes. It should be noted that the United States uses lawfare mechanisms against Iran, i.e., it uses its legislation to achieve strategic objectives similar to the results of a war.  In another case, Petrobras, accused of having violated the Foreign Corrupt Practices Act, made a deal with the U.S. Department of Justice. Under such agreement, the company was forbidden from invoking the national sovereignty clause to breach the agreement.

[3] Sachs, Jeffrey. A guerra contra a tecnologia chinesa. Valor Econômico, November 14, 2019.

[4] Law authorizing the U.S. government to finance activities of U.S. interest abroad. The U.S. Ambassador to Brazil stated the possibility of using the Build Act to finance 5G technology in Brazil, subject to the imposition of a ban on Huawei participation.

[5] For example, access by US authorities to email content, social networks, and/or applications stored on servers abroad.

[6] Risk of potential collection of Brazilian agriculture data by US federal agencies.

[7] Potential for the collection of geospatial data from the Brazilian territory by US federal agencies.

[8] The Foreign Corrupt Practices Act provides for punishment of any company that uses U.S. infrastructure (banking or communications system) to pay a bribe to public officials. And, as a historical reference, over the last decades, Brazilian companies experienced a period of ascension, performing infrastructure works all over Latin America. However, they were shot down by the Lava Jato investigations. Harvard professor Matthew Stephenson denies the possibility of geopolitical use of the FCPA by the United States. But suspicion remains about the instrumentalization of the FCPA for US geopolitical purposes.
See: Kall, Kevin, Herdy, Thiago e Amado Guilherme, Ex-diplomata revela a visão dos Estados Unidos sobre a Lava Jato e projeto de poder do PT. Época Magazine, July 8, 2019.
In addition, U.S. Democratic congressmen questioned in a letter to the Department of Justice the collaboration of U.S. authorities with Brazilian authorities in the Lava Jato investigations.

[9] The current government of President Jair Messias Bolsonaro has encouraged the installation of weapons factories in Brazil, which is why it has made legislation more flexible. Now, when it comes to US companies that will be set up here, there is the potential application of US export control and arms transfer legislation. On that matter, the National Defense Authorization Act provides for the assessment of the impact of U.S. military equipment and training for Brazil’s security forces and the risks of human rights abuses.  And also, by way of illustration, the Wassenaar Arrangement Agreeement deals with the control of the exports of so-called dual-use technologies, arms and products. The objective of the agreement is to contribute to the regional and international security and stability of the countries. The United States is part of this treaty, but Brazil is not.

[10] United States National Security Authority.

[11] Can investigate Brazilian companies accused of committing crimes under US law.

[12] Can map the energy capacity of Brazil.

[13] National Security Agency that can perform electronic surveillance and interception of electronic communications anywhere on the globe.

[14] Intelligence Agency that can promote covert actions in social networks, applications, etc.

[15] Federal crime investigation agency.

[16] Agency developing intelligence and defense products.

[17] With satellite capacity to collect images from land, sea, and airspace.

[18] Can recognize ships, aircraft, objects, surfaces, vehicles, facilities, etc..

[19] With satellite capacity to promote “scans” by images of the Brazilian territorial sea, which happened in that episode of oil spill on Brazilian beaches.

[20] Federal agency to assess foreign investments in the United States.

[21] Federal telecommunications agency.

[22] Federal Court responsible for examining requests for electronic surveillance of foreign nationals.

[23] Federal agency responsible for the supervision of securities transactions (shares traded in stock markets and other assets).

[24] A Brazilian General was appointed to the United States Armed Forces Southern Command. A recent video from the U.S. South Command attested to the subordination of the Brazilian General to the command of the United States General. The episode narrates the collaboration of Brazilian authorities in the fight against drug trafficking, together with the United States.