Two titans of the legal world faced off before the 9th Circuit Court of Appeals in a case that pits the cell phone industry against the city of Berkeley, California’s cell phone radiation law. If the court ends up reversing a lower court’s earlier decision and ruling in favor of CTIA – The Wireless Association, it would overturn a new Berkeley city law that aims to alert cell phone users about possible radiation risks by forcing retailers to post signs in their stores.
This video demonstrates why this law is so important, as retailers have no clue about phone radiation levels!
That law went into effect earlier this year after the cell phone trade group sued to halt it. Earlier this year, a federal judge ruled in favor of the defendants in CTIA v. City of Berkeley, allowing a municipal ordinance to stand, with one small revision.
Over-turning Berkeley’s Cell Phone Right To Know ordinance would underpin a much wider risk to public health and also curb demand for extensive scientific research needed to ensure the safety of wireless devices such as Smartphones, Cell Phone Towers and Wifi Routers.
Judicial conflict of interest have surfaced in Berkeley’s Cell Phone Right To Know Ordnance case. Now allegations have surfaced that a judge in the case against Berkeley’s cell phone warning ordinance has ties to the wireless industry.
CTIA, the wireless industry trade group (formerly the Cellular Telecommunications Industry Association), is challenging a law that requires stores to post information on proper cell phone use so that radiation exposure doesn’t exceed federal guidelines.
The case was heard in the 9th Circuit Court of Appeals in San Francisco in mid-September by a three-member panel that included Judge Michelle Friedland, whose husband, Daniel Kelly, is allegedly an engineer with wireless company Tarana.
According to Ellen Marks, director of the California Brain Tumor Association, Friedland may have had a conflict of interest because Tarana’s significant investor is AT&T – a CTIA member that could have a major stake in the outcome of the case.
“If Berkeley prevails, his job could be at risk,” Marks said. “They might have financial implications from this, and if the CTIA prevails, they have a lot to gain from this.”
The CTIA has claimed that Berkeley’s ordinance violates free speech. Berkeley has countered that the required postings were simply guidelines directly from the cell-phone manuals, warning that people who carry a cell phone close to the body may exceed federal guidelines on exposure to radio-frequency radiation.
A spokesman for the 9th Circuit confirmed that Kelly works in the telecom industry, but said Judge Friedland herself would not comment. Calls to Mr. Kelly and to Tarana were not returned.
Marks said the case is significant because many other cities have expressed an interest in similar ordinances, and some have received letters from the CTIA threatening litigation.
San Francisco has been working to pass a similar law, and City Supervisor John Avalos said that if the allegations are true, Friedland should have disclosed this possible link.
“If there’s any hint of such a relationship between her partner and such work within a telecommunications company, she should disqualify herself,” Avalos said.
The court has the case under consideration but has not yet issued a ruling. Berkeley’s legal team has the option to file a complaint alleging conflict of interest, but has not done so thus far.
The CTIA defendants enjoined with former presidential hopeful and Harvard law professor Lawrence Lessig. The author of Code and Other Laws of Cyberspace, among other books, similarly repeated his own earlier arguments by saying that all that Berkeley does is to make more plain the existing radiation disclosures that are already mandated by the FCC.
“Our position is that we are relying on a regulation of the FCC,” he told the 9th Circuit. “We don’t want to get into an argument about the science, we don’t think we should have to. The standard of review should be that we should have a rational basis of review.”
Specifically, one of the primary ways that radiation from a phone is measured is through something called the Specific Absorption Rate (SAR)—in other words, how fast a given amount of energy is absorbed by the human body, measured in watts per kilogram.
Since 1996, the FCC has required that all cell phones sold in the United States not exceed a SAR limit of 1.6 watts per kilogram (W/kg), as averaged over one gram of tissue. On most phones, it’s not at all obvious what the SAR value for a given handset is. On the iPhone 6S Plus—the author’s phone—for instance, the information is buried four menus deep, and even then requires clicking yet another link.
As Lessig spoke, 9th Circuit Judge William Fletcher seemed to suggest that he found Olson’s arguments persuasive.
“I also think it is a fair inference from when the language starts out to assure safety, that if you don’t do this, it might well be unsafe. The question is one of tone or implication,” Judge Fletcher said. “I read that language to say: ‘Uh oh, I’m in trouble if I put it in my pocket.’”
He also pointed out early on, as Ars noted in May 2016, that a new $25 million, years-long US government study had finally found a clear connection between cell phone radiation and tumors in rats—striking fear in the hearts of gadget lovers worldwide.
Lessig, for his part, answered a few questions.
“Our view was that it’s important that jurisdictions have the ability to regulate without requiring a huge factual finding, spending tens or hundreds of thousands of dollars in order to support the regulation,” Lessig said.
“I’ve always said this case is not about the science. It’s about the ability of a government to issue safety warnings without bearing this incredible burden that typically happens when you try to restrict somebody’s speech. That’s why the case, our brief says: what this case is really about is, you can think of it as a multinational corporate veto on the right of a city to regulate. Because if cities like Berkeley fear that they’re going to have a lawsuit funded by a multinational corporation against them every time they have a safety warning—they will just stop having safety warnings. Because they can’t afford to be litigating First Amendment cases every time they want to say something might be unsafe.”
The court is expected to rule within the coming months.
