Blast! Blackberry blanked?

BlackBerry Bold (Vodafone UK)

Business travellers to the Middle East will know that taxi drivers in the region often need a little assistance.  There does not appear to be any local requirements to pass examinations, yet alone anything as thorough as “The Knowledge” in London.  As a result, I have relied on Google Maps on my Vodafone Blackberry Bold many times to show a driver where I need to go.

This may be the only useful function above that of a standard mobile phone that a Blackberry Bold will serve for visitors to the United Arab Emirates (UAE) from October.  According to announcements made by the Telecommunications Regulatory Authority (TRA) on 1 August 2010 and 2 August 2010, BlackBerry Messenger, E-Mail and Web-browsing services are to be suspended from 11 October 2010. 

From a telecommunications regulatory viewpoint, these statements are extremely disappointing.  Suspending services which will affect an estimated 500,000 end users without a full explanation is not exactly international best regulatory practice, although a strange legal comparison was published by the Emirates News Agency (of which more in a post to be blogged shortly).

Although the TRA has not set out a legal basis for its suspension of BlackBerry services, this can be guessed at from legal materials on the www.tra.gov.ae website.  This includes the licences of the 4 licensed operators.  Taking the licences of the BlackBerry partners, Etisalat and Du, each states at Article 8.2:

The Licensee shall comply with any directions as the TRA or other competent authority may issue from time to time on matters relating to public interest, safety and/or national security.  The Licensee also undertakes to install at its own expense any equipment required to allow access to its Telecommunications Network and/or the retrieval and storage of data for reasons of public interest, safety and national security.  This obligation shall extend to the provisioning of the facilities terminating at the premises of a competent authority and shall be provided without charges of any kind.  Furthermore, the Licensee shall not undertake to provide any services which do not meet the requirements of any competent authority responsible for public interest, safety and national security.

A breach of a licence condition which has not been remedied on instruction by the TRA can lead to suspension or revocation of a licence (Article 4(1)(c) and Article 5(1)(c) of the Licensing Regulations (Resolution No. (7) of 2008)).  This would appear to me to be the correct legal basis for the TRA’s current intervention.  Article 4(1)(d), suspension in the national interest, which is mentioned in the Emirates News Agency legal analysis, is in my opinion irrelevant, as is its inclusion of discussions on UAE Public Access Mobile Radio Licence provisions.

Failure by Etisalat or Du to comply with the TRA or other competent authority’s directions on, say, the provision of encryption keys or interception equipment to enable interception of BlackBerry communications in the public interest, safety or national security, would be a breach of Article 8.2. 

Rather than publishing an announcement that a particular service would be banned from a certain date, the TRA might have been expected to issue an instruction (using the wording of the UAE Licensing Regulations) to Etisalat and Du that unless the relevant licensee complied with the directions made under Article 8.2 of their licences in respect of access to BlackBerry communications on a predetermined date, it must suspend the relevant BlackBerry services.  Failure to comply with the instruction by the licensee would risk suspension or termination of its licence. 

In many regimes, there would be statutory notice or remedy periods that a regulatory authority would have to follow before it could suspend or revoke a licence.  Some regimes would require public consultation so that persons affected by the proposed regulatory action could comment.  The TRA in the UAE has the benefit of relaxed regulatory provisions that appear to enable it to act largely within its own discretion.  It may be that the TRA has taken these steps, but on the grounds of public interest, safety or national security has decided not to publish any of the relevant details.

There has been much speculation following the TRA announcements about the response to be expected from Research in Motion (RIM), the BlackBerry company.  Strictly this has nothing to do with RIM – the regulatory measures are addressed to Etisalat and Du, who provide BlackBerry handsets to their customers.  The TRA is therefore incorrect when it states that “some BlackBerry services operate beyond enforcement [of the UAE regulatory framework”, as its own suspension shows.

The fact is that without any public information on the nature of any direction to Etisalat and Du, it is impossible to determine why the TRA or other UAE competent authority cannot obtain the communications or traffic data it requires from RIM (via Etisalat or Du) to satisfy its public interest, safety or national security requirements whilst nearly all other countries, particularly Bahrain, the US and EU member states, appear satisfied that the use of BlackBerry Messenger, E-Mail and Web-browsing is not a threat.  The question as to whether the suspension of BlackBerry services in the UAE is an appropriate and proportionate regulatory measure adopted by the TRA is therefore open.

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