Home Radio codes Comparison of French and American regulations on mobile radio networks

Comparison of French and American regulations on mobile radio networks


Explore the similarities and differences

Fifth generation technology, known as “5G”, is disrupting the telecommunications landscape in France and around the world without precedent. Faced with this revolution and the challenges it presents, France has developed through Law 2019-810 a new legal system intended to protect its national security interests in the operation of mobile radiotelephony networks. The law focused in particular on the introduction of a new prior authorization regime. Interestingly, in the United States, the recent Secure Equipment Act of 2021 intends to empower the Federal Communications Commission (FCC) to restrict the authorized use of equipment to companies on the agency’s covered list. In this article, we’ll explore how these two diets share similarities and how they differ.

In France, the law stems from a proposal by parliamentarians in February 2019 which noted that if the deployment of radiocommunications networks to ensure digital coverage throughout French national territory must be one of the primary objectives of any policy development, the deployment of 5G increases the cybersecurity risks associated with network equipment. This is due 1) to the technical specifications of 5G (dynamic management of the access network, introduction of information processing units at the edge of the network, edge computing) and 2) to the use cases of 5G for industrial areas of certain critical sectors (eg / autonomous vehicles, emerging technologies, energy networks, etc.). This increased risk imposes new security requirements on the equipment that will support future 5G networks, both in terms of their intrinsic technical characteristics, and in terms of legal obligations that could force their suppliers to cooperate with foreign authorities in the collection of data. information.

Considering that 5G technology would entail an increased risk compared to previous technologies, the main objective of the law of August 1, 2019 was to protect the national security interests of France in the operation of mobile radio networks. The law added a new article, Article L. 34-11 to the Postal and Electronic Communications Code, under which prior authorization from the Prime Minister is required for the operation of certain equipment in the mobile radio communications network which, from by their function, “present a risk to the integrity, security and continuity of operation of the network“. The list of equipment whose operation is subject to authorization is fixed by decree of the Prime Minister. Under this law, the Prime Minister can refuse to authorize the operation of any hardware or software allowing the connection of terminals of ‘end users to the mobile network as part of the 5G network deployment. The grounds for refusal include 1) serious risk of harm to defense and national security interests and, 2) lack of guarantees as to the permanence, integrity, security and availability of the network. This risk must be assessed when an operator or its service providers can be “under the control or subject to acts of interference by a State which is not a member of the Union“(L. n ° 2019-810, August 1, 2019, art. 1 modifying the second paragraph of article L. 34-12 of the postal and electronic communications code). To issue the authorization, the Prime Minister must take into consideration the level of security of the devices, their modes of deployment and operation envisaged by the operator and to what extent the operator or its service providers, including any sub- treating, are “”under the control or subject to acts of interference by a State which is not a member of the European Union. “

The law was challenged in the Constitutional Court, without success, however some telecommunications companies directly challenged the Prime Minister’s decisions not to grant permission, notably in the case of Huawei. The companies are also seeking damages from the French state to obtain compensation for the replacement costs of equipment which is now prohibited. In a recent summary procedure, the French telecommunications giant Orange won its case, succeeding in obtaining the suspension of one of the Prime Minister’s decisions on the grounds that the threat to national security had been misinterpreted and could distort the competition between telecommunications operators (Paris Court, December 22, 2021, n ° 2125808).

In the United States, the Secure Equipment Act was passed in the House of Representatives and the Senate almost unanimously (on a vote of 420: 4) and was signed almost immediately by President Joe Biden on November 11, 2021.

This legislation is intended to strengthen the authority of the FCC, an independent US government agency overseen by Congress and responsible for the implementation and enforcement of US communications law and regulations. The FCC regulates interstate and international communications by radio, television, wire, satellite, and cable in the 50 states, the District of Columbia, and all U.S. territories.

The FCC can now deny authorizations for equipment from its “covered list” of entities, a list of communications equipment and services that are considered to pose an unacceptable risk to the national security of the United States, or to the United States. safety and security of American people. The FCC is prohibited by this statute from considering or approving any request for any equipment on the above list of covered communication equipment or services.

In addition, no authorization will be granted by the FCC for equipment offered by companies on the Covered List, regardless of the type of funds used to purchase such equipment.

This legislation essentially finalizes legal efforts aimed at protecting the country’s communication networks against security risks. In November 2019, the FCC passed a ban on using support from the Universal Service Fund (USF) to purchase, procure, or maintain any equipment or service from companies posing a threat to the national security of communications networks or the network. communications supply chain. This ban enforced the Secure Networks Act, enacted in 2020 under the Trump administration, which prohibited the use of federal grants for covered communications equipment and services. Prior to that, Congress passed and the president enacted in 2017 and 2018 a series of National Defense Authorization Acts (NDAA) that specifically stated that government agencies could not “”procure or obtain or extend or renew a contract to purchase or obtain any equipment, system or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as a critical technology in connection with any system. “

The United States has also doubled this national cybersecurity protection with efforts in its international relations. For example, the United States has said it will stop sharing information with allies that allow Huawei to provide a significant portion of its telecommunications infrastructure, saying the security risk is too great.

It may also be interesting to note that the Secure Equipment Act came in just after the FCC’s decision to revoke authorization for China Telecom’s US subsidiary to operate in the United States, citing national security concerns. In its press release, the FCC stated that it “passed an order terminating the ability of China Telecom (Americas) Corporation to provide domestic interstate and international telecommunications services to the United States“, Explaining such” action leads [the FCC’s] mission to protect the country’s telecommunications infrastructure from potential security threats. In order to help US customers make the transition to other mobile service providers following the discontinuation of services from China Telecom Americas, the FCC has released a consumer guide after the issuance of the order that explains this decision and other options consumers might consider for mobile services. .

The American and French regimes have the same effect; ensure that the technology is safe for consumers and does not threaten national security. Both will develop over time, and as new technologies emerge, calls for tighter regulation, for example, are already being requested. Governments around the world will follow developments in the two legal regimes closely, perhaps to learn from the adoption of similar measures. However, in France, monitoring of the implementation of such a regime will continue as the Prime Minister’s decisions continue to be challenged on various grounds.

*McDermott PSL Louis-Nicolas Ricard also contributed to this article.