Monday, July 16, 2012

The Art of Mobile Jamming Pt 2 (c)2012

The Art of Mobile Jamming Pt 2 (c)2012

Part 1 -

In Pt 2 the discussion highlights some confusing legal issues that this Bill may need to resolve if it is to be transformed into legislation such that the technical criteria and application of testing jammers might be adopted.

UK legal observations
The advice recorded at Ofcom's website does not specifically define illegality with respect to possession of a Jammer, merely the 'installation' or 'use'. If  such a device was illegal to be in the 'possession' of anyone in the UK none of the retail shop outlets would be able to stock such device. The fact they are sold through outlets is on the basis for export sales etc and therefore  the lawful requirements in this area is unclear if those outlets need to demonstrate a working product. Ofcom have authorised the use of Jammers but under strict conditions and the enforcement how Jammers are being sold and used is largely policed through market surveillance and/or complaint.

One clue regarding the absence of that approval for jammers maybe due to a general legal approval for purpose-built jammers; that is in context when thinking about what is and what isn't 'acceptable' regarding the source of interference.  That may also be understood from omission of official recognition of this type of devices by an approved name, the same way mobile phones are officially identified and recognised:- e.g mobile phones can be found in historical materials, such as Phase II Directive 91/236/EEC and, currently, in the Radio and Telecommunications Terminal Equipment Directive (R&TTE), 1999/5/EC of the European Union. This legislation sets out essential requirements applicable to radio & telecom terminal equipment and places the burden of responsibility for their compliance on those involved in their design, manufacture and supply to and into the EU members' markets. Given that this article is relevant to Bill 15 introduced to the House of Commons on 20 June 2012 is titled PRISONS (INTERFERENCE WITH WIRELESS TELEGRAPHY) BILL it makes sense to conform that the 1995/5/EC has been implemented into UK law through The Radio Equipment and Telecommunications Terminal Equipment Regulations 2000 (SI 2000 No.730) and amendments SI 2003 No.1903 and SI 2003 No.3144.

Why should that make sense? Because Bill 15 seeks to introduce the legality for use of jammers where the jammer is of an 'apparatus' type, thus may need technical definition for that purpose. For instance when defining mobile telephones the R&TTE Regulation has relevance to them because it covers apparatus that are both RE (radio equipment) and TTE (telecommunications terminal equipment) and mobile telephones are defined as being both RE and TTE.

Jammers might need some form of recognition as a basic RE apparatus, if nothing. Why? Because how will the government determine:

(i) the sale to government and the procedural path for government to purchase?
(ii) who will resolve disputes/remedies if the goods don't match description and fitness for purpose (Sale of Goods Act 1979 s13, s14 etc)?
(iii) how will description and fitness (ii) be assessed in order to advance the corect details for purchase when there is no official test enforcement in place?
(iv) how could test enforcement (iii) be followed where there are no approved Jammer technical standards (when compare for instance with testing standards for mobile phones: ETSI, GSM, 3GPP etc)? 

It the UK parliament were to produce a designated British Standard (BS) and compliance according to such a standard might then introduce mandatory test and regulation, which raises another conundrum. For a designated BS standard for test and regulation to be required that may amount might to a breach of Articles 40-46 of the EU Treaty. Basically these Articles seek proactive reduction and removal of trade barriers brought about by mandatory regulation to aid the principle of free movement of goods (Article 100A).

Can the Wireless Telegraphy Act 2006 with description and test? It would be appear not because the usefulness of the Act was intended to be as generic and the wide possible definitions being available to it to not only cover specific definition but also where no definition is assigned to particular apparatus or equipment a Court could construe an 'ordinary' meaning being given to e.g. a particular device. Moreover, the Act is not limited to what a device might be that produced emissions (the cause) but also the consequences produced by the cause, the interference (the effect).     

Section 8 of the Wireless Telegraphy Act 2006 Act forbids the installation or use of wireless telegraphy equipment (radio) in the UK mainland Northern Ireland and territorial waters, the Isle of Man and the Channel Islands, unless an appropriate licence has been obtained from Ofcom, or there are Regulations in force exempting it from the licensing requirements.

Licences are usually granted subject to terms, provisions and limitations, which must be complied with. These may include:

    use only on a certain frequency;
    use only with a certain power and certain level of emission;
    use must not cause undue interference;
    use only within a certain geographical area;
    use only of apparatus which meets specified requirements; and
    access for inspection by Ofcom staff and close down in the event of interference being caused.

The position remains unclear as to how Ofcom would assess by description or test against a technical standard, unless they already have a test schedule? 

Can the Act 2006 s68 provide any assistance where remedy is sought for deliberate interference e.g. the actual use of the jammer that has been detected due to surveillance or complaint? The use of any apparatus, whether or not wireless telegraphy apparatus, for the purpose of interfering with any wireless telegraphy, is an offence under the Wireless Telegraphy Act 2006. It is an indictable offence that upon conviction in Crown Court carries a maximum penalty of two years imprisonment and/or an unlimited fine. The courts can also order forfeit of any apparatus used in the commission of the offence. No description or test is provided for in relation to device in order to determine the penalty.

Essential as Jammers pollute the electromagnetic environment can assist be found here. Jammers are also subject to the Electromagnetic Compatibility Directive (EMC) Directive EC89/336 as amended, which has been implemented into UK law by the Electromagnetic Compatibility Regulations 2006 (Sl 2006/3418). These regulations specify that all electrical and electronic apparatus placed on the market or taken into service in the UK, including imports, satisfy specific requirements to ensure that they do not cause excessive electromagnetic interference or are adversely affected by it and have to carry the CE mark to show compliance. The European Commission supports Members States’ views that since jammers by their nature cause significant electromagnetic interference it is likely that most do not comply with the UK regulations and therefore they cannot be legally placed on the UK market. The maximum penalty for supplying non-compliant equipment under the regulations is a fine of up to £5,000. The courts can order forfeiture of stocks of equipment. Ofcom will take appropriate enforcement action, including prosecution, to enforce the above legal provisions.

This should be interesting then if, during parliamentary discussion about Bill 15, Jammers suddenly become an acceptable 'thing' for use given the history behind representation made by the UK to the EU as to what is covered by EMC regulation. 

Is there a EU harmonised position on Jammers?
A primary objective as already discussed why Jammers are not legal for placing on the market and for use is that European Conference of Postal and Telecommunications Administrations (CEPT), of which the UK are members, is the absence of a standard for the “construction", "testing" and "assessment” of Jammers to meet the requirements of the R&TTE, EMC directive etc. Were a manufacturer to produce such a device that could meet the principles of R&TTE, EMC Directive etc then it might be a different matter. Reasons behind uncertain about Jammers is largely agreement which revolves around cases where Jammers could be used (such as in penal institutions etc) but Jammers in the hands of the consumers, which CEPT doesn’t want, for concern consumers who may use them indiscriminately (for shutting up chatterboxes on trains, in restaurants and cinema etc).

Importantly, a fundamental principle under R&TTE Directive is the requirement for the safety of life and limb and the legal requirement to allow users of radio and telecommunications systems to make emergency calls. Jammers have the capability to prevent this. Stopping a chatterbox on the train with a Jammer prevents other users also making use of the spectrum.

Importantly, when the FIRST PROGRESS REPORT DIRECTIVE 1999/5/EC was published in 2004, it stated:

’2.8. Jammers
With the widespread deployment of mobile services, notably GSM, the need has arisen to deal with social problems caused by inappropriate use (irritating ring tones and usage), but also with security and safety concerns (in prisons or hospitals, for instance). Although in generalone relies on voluntary mechanisms to deal with such problems (signs forbidding use, social controls, banning of handsets), some interested parties have expressed the desire to address them by preventing the communications through technical means. This development has given rise to major concerns in the standing committee and other regulatory fora. Such an approach would legalise the sales and uncontrolled deployment of so-called “simple jammers”. These could have the effect of creating a large number of holes in GSM coverage and associated reduction of quality of service and access to emergency services, as well as voiding part of the coverage legally granted to operators via licences.

For the time being (November 2003) these devices remain illegal as no Member State has introduced a concrete regulation, which specifies the conditions under which they can be used. It is also imperative for public authorities in the EU to engage in an informed debate with those organisations, which seek to ban generic GSM communications in some places. Solutions need to be found which are effective in achieving this goal, but which do not undermine the widespread availability of mobile communications.’


’3.8. The borderline of the Directive
The application of the Directive to equipment that operates in aeronautical bands must be reviewed. The exclusions of annex I are ambiguous and are interpreted differently between Member States. The Commission has made proposals to the Council to handle such equipment in separate Directives.

The restriction of the Directive to only cover “radio communications” equipment has given rise to discussions on coverage of e.g. jammers, radars and radar detectors. Even though the application of the Directive was clarified for such equipment, defining its coverage as “equipment, capable of emitting and/or receiving radio waves” would facilitate the operation of the Directive.’

This reference to Jammers in the R&TTE Directive followed the ECC RECOMMENDATION (03)04 WITH REGARD TO FORBIDDING THE PLACING ON THE MARKET AND USE OF JAMMERS IN THE CEPT MEMBER COUNTRIES which consider Jammers at 900MHz and 1800MHz (June 2003)


ECC RECOMMENDATION (04)01 WITH REGARD TO FORBIDDING THE PLACING ON THE MARKET AND USE OF JAMMERS IN THE CEPT MEMBER COUNTRIES which consider Jammers in other technology categories such GPS, Video-link and wireless LAN jammers (February 2004). Rec(04)01 makes a specific statement regarding GPS: ‘Especially in the case of GPS jamming the safety risks are high because GPS is used for navigation, rescue services and in tracking devices.’

As the UK is a member of CEPT, ECC(03)04 and ECC(04)01 it require the administration to follow the recommendations:


2)         that CEPT administrations shall:
           Not allow the placing on their market nor the use of  jammers;
           Take appropriate measures to stop the transmissions of jammers;
           Exchange information on market surveillance activities with regard to jammers.

Essentially, the fundamental criteria underpinning the recommendation:

’It is not possible to construct jammers that comply with the R&TTE (1999/5/EC) or the EMC Directives (89/336/EEC) and those devices cannot therefore be legally placed on the market for use under these Directives.’

The criteria that jammers cannot comply with R&TTE presents a bit of a headache, as at the beginning of Part 2 I illustrated that the UK R&TTE and EMC Regulations are supposed to be relevant to the emissions and placing on RE apparatus for use in the UK. The Wireless Telegraphy Act 2006 was considered to see if it assisted with description.

It could be that by using the exemption or exception clauses in Acts and Regulations the government may need to design a special investigation test schedule (SITS) similar to that used by British Approvals Board for Telecommunications (BABT) in order to create a purchasing criteria, doubling as a test standard, too? The authorities still face difficulties because once in use it isn't possible to contain the emitting jammer interference to a precise area in the aether.

Moreover commercial concerns may have relevance here to, with respect to operators and the Communications Act 2003. Blocking signalling from Masts caused by radiated emissions from jammers, the Government would need to ensure services to customers around prisons are not disturbed, if claims for compensation are not to be brought against the Government. Site surveys would most likely be required.   

Jammers are sold through outlets on the basis for export sales etc and therefore the lawful requirements in this area are unclear if those outlets need to demonstrate a working product? Ofcom has authorised the use of Jammers but under strict conditions. That being the case Ofcom should have the complete details of the jammer to be used, was it purchased in the UK, imported under licence or brought in as contraband and the conditions under which it would be operated? In this regard Ofcom could furnish to parliament those details. In the alternative Ofcom conduct enforcement how Jammers are being sold and used policing through the use of market surveillance and/or complaint.

It is noteworthy that the UK Regulations allow for devices not for the market and not making approved statements to be in the UK. This appears to cover retailers selling Jammers:

’Exceptions in respect of placing on the market and putting into service
     6.  - (1) For the purposes of regulation 5, apparatus shall not be regarded as being placed on the market where that apparatus -
(a) is intended to be exported to a country outside the Community; or

(b) is imported into the Community for re-export to a country outside the Community; or

(c) is transferred from the manufacturer in a third country to his authorised representative established within the Community who is responsible on behalf of the manufacturer for ensuring compliance with the Directive; or

(d) is transferred to a manufacturer for further processing (for example, to modify the product or to integrate it into another product, or to put his own name on the product);
save that this paragraph shall not apply if the CE marking, or any inscription liable to be confused therewith, is affixed thereto.

    (2) The following principles shall apply in respect of the application of the Act and the Wireless Telegraphy Acts 1949 to 1967[33]:
(a) the display at trade fairs, exhibitions and demonstrations of apparatus which does not comply with the provisions of these Regulations is permitted if a notice is displayed in relation to the apparatus to the effect -
(i) that it does not satisfy those provisions; and

(ii) that it may not be placed on the market or put into service until those provisions are satisfied by a responsible person; and
(b) the switching on of radio equipment may be restricted for reasons related to the effective and appropriate use of the radio spectrum, avoidance of harmful interference or public health.’

The Wireless Telegraphy Act 2006 came into force in January 2007. This enactment makes no mention of Jammers and refers to Regulations of Apparatus undue interference in Part 3 Clause 53. By 2009 the European Commission issued a Guide to the R&TTE Directive 1999/5/EC Version of 20 April 2009:

1.3.4 Jammers
This issue was specifically discussed in the context of mobile
phone jammers (i.e. equipment preventing the operation of GSM
handsets). Since jamming, which is inherent to their functional
principle, cannot fulfil the essential requirements of the Directive,
the placing on the market and putting into operation of these
devices is banned.

It is noted that EU and UK references regarding Jammers has been specified for GSM and GPS. There has been no reference at all made to the network technology UMTS and the wireless transmission technology WCDMA and Jammers. Theoretically, this might mean a Jammer directed to be used against WCDMA transmission technology might not be illegal, but that is highly unlikely as the law can be construed to deal with that matter. This might also mean a legal argument is needed, although I am not legally qualified nor do I give legal advice.

So what is a Jammer?
Part 3 I shall discuss various methods I have researched and illustrate the ways jammers cause interference. In part 1 of these discussions I highlighted some issues, but more technical aspects can now be discussed for Part 3 as readers have begun to get a flavour of the way in which I am approaching this matter.

For now who is going to say, technically, what is a Jammer and what it is not? Without properly constructed standards or guidelines precisely demonstrating the construction of them (e.g. Technical Construction Files (TCF)), characteristics to succinctly define ‘interference’ that a Jammer is supposed to create and what should be the methodology to test for that, the problem runs into the old classic, do goods match description? The term Jammer is bandied around and the inclination of the criminal justice system might be not to question it provided the “thing” generally looks like its name, thus simpler to go with the flow. That is to say it may be a jammer is given an 'ordinary' meaning. However, that approach needs caution, too, if we are not to miss the lessons already learned from previous case law that assessment of a name alone to describe a “thing” needs to extend beyond simply referring to its title to make the “thing” a fact.  The Appeal Court held in the case of Patel v Controller of Customs [1966] AC356 the words “produce of Morocco” stamped upon bags of coriander were inadmissible to prove the country of origin of the coriander.  The words were stamped on the bag with express intention of asserting a fact and were thus hearsay.

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