USA: Legal and Public Health Problems of the Wireless Age
dinsdag, 09 september 2014 - Categorie: Juridische Informatie
Bron: pubcit.typepad.com/clpblog/2014/09/legal-and-public-health-problems-of-the-wireless-age.html .
8 sept. 2014
Guest post by Deborah Kopald
(Deborah Kopald (BA, Harvard; MBA, MIT Sloan School of Management) is an environmental health and public policy consultant and author who has developed and overseen the passage of legislative initiatives and has served as a guest expert at various media outlets. In 2013, she organized and moderated The Conference on Corporate Interference with Science and Health in New York City. The conference proceedings were published in Reviews on Environmental Health.)
The use of Wi-Fi and other wireless technologies has created problems. “An Open Letter to Phillips Exeter Academy about Wi-Fi”, which I wrote to my alma mater, details the public health problem Wi-Fi has created and some legal ramifications of its use.
Some people who lived too close to TV broadcast and radar towers developed symptoms of Microwave Sickness, a condition observed in military and industrial occupational settings during the Cold War. The next wave of microwave-emitting infrastructure, cell towers, lived up to the billing of their military and industry-owned cousins with subsequent studies (none were commissioned in the United States) showing elevated numbers of people within 1,500 feet experiencing symptoms of Microwave Sickness. (Twenty-one years ago, the California Public Utilities Commission (CPUC) had recommended siting towers away from schools and hospitals; some municipalities used their zoning rights under the 1996 Telecom Act to create setbacks from these institutions as well as residences, places of worship and recreation areas in the name of protecting property values.)
Today, Microwave Sickness is known as Electro-hypersensitivity (EHS). Symptoms can include but are not limited to extreme pounding headaches, blood pressure and heart rate changes, and muscular weakness in the presence of Wi-Fi and commensurate exposures. In Sweden, the government acknowledges that the problem, which it terms a functional impairment, is affecting 3% of its population and provides accommodation in the form of hospitals without Wi-Fi, wireless-free transport, schools and workplaces and wired and shielded housing to accommodate people.
Microwave Sickness accelerated as warnings and recommendations were ignored and transmitters were placed closer to living and working environments; radiation exposure is driven more by proximity to the transmitter than by its total power output which is why a Wi-Fi’ed area can expose people to more radiation than if there were a cell tower on the premises. (If being certain distances from a cell tower created problems, obviously getting even higher radiation doses continuously would be more problematic.) People used to be able to move away from a cell tower or shield their homes to an extent; not so with Wi-Fi, which is ubiquitously indoors…and increasingly outdoors in the public square with rollouts in parks and city streets. Therefore, what was formally a problem of geography has turned into one of public health. Wi-Fi has a much shorter range than a cell tower, but someone who is sensitive to microwave radiation must keep a wide berth from the routers.
The National Institute of Building Sciences (NIBS) in conjunction with the Architectural and Transportation Barriers Compliance Board (the United States Access Board) put out a report in 2005 that stated that for a building to be accessible, Wi-Fi should be avoided in favor of fiber optic connectivity; if used, Wi-Fi was to be confined by foil-backed drywall or equivalent barrier. Instead, Wi-Fi is spilling out into the indoor building environment -- in schools, hospitals, doctors offices, libraries and municipal buildings, many of which are completely inaccessible to those with EHS (if the transmitters aren’t shut off in the areas that must be used). Institutions in the U.S. which refuse accommodation to those with severe electromagnetic sensitivities are engaging in unlawful behavior; this is a frequent occurrence. Sweden and other countries figured out that there is something very wrong with not providing medical care (and other necessary services) to part of their population; U.S hospitals are still getting the memo while simultaneously putting in more microwave-emitting MBANS (Mobile Body Area Networks) thanks to a partnership (rife with conflicts of interest) between the FCC and GE Healthcare.
I explain in my letter to Exeter how many Americans are misdiagnosed, so they don’t even know that they can be asymptomatic by practicing avoidance to certain exposures and that they could safely access buildings (not having symptoms triggered) by exercising their civil rights. Notwithstanding a media blackout in the US, Americans eventually may figure out what some European governments and officials openly acknowledge; continuous exposure to certain levels of microwave radiation is impairing peoples’ health. As with sensitivities and other allergies, the effects occur on a continuum; some experience varying degrees of imminent impairment and un-wellness, while some will develop disease over the longer-term; studies of microwave radiation link exposures that are commensurate with those created by current use-age patterns to the development of diseases like cancer and Alzheimer’s.
While Murray v. Motorola Inc., 982 A.2d 764 (D.C. 2009), prohibits lawsuits on brain tumors caused by cell phones manufactured after 1996 and the U.S. Cellular Telecommunications and Internet Association (CTIA) managed to get the City of San Francisco, see 2012 WL 390068 (9th Cir.), to retract a city law that would have mandated point-of sale disclosure of radiation emissions to the head and body from cell phone use by claiming the government couldn’t “compel speech” from corporations, the links between cell phone exposure and brain tumors are accepted in both European medical circles and the judiciary. Other impediments to litigation were created by Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90-92 (2d.Cir. 2000), which deemed the adoption of federal safety guidelines set by the Institute of Electrical and Electronic Engineers (IEEE), an industry association, the functional equivalent of a National Environmental Policy Act (NEPA) review.
In contrast, the German government recommends its citizens not use Wi-Fi; the Swiss government acknowledges that biological effects occur below international guidelines; and members of the international medical and scientific community, including some U.S. government agencies and agency representatives (the Department of the Interior (DOI), the U.S. Access Board, NIBS, and the Interagency Working Group on Radiofrequency Radiation) suggest that U.S. guidelines which are for 30 minutes of exposure should not be extrapolated for continual exposure past that time period. A point that has been lost on most is that many people are getting more cumulative radiation from working in a Wi-Fi’ed environment than they are getting from their cellphones. Putting aside the aforementioned accessibility issue for a moment, CA has a law on the books that restricts use of toxic substances in schools for K-6 and mandates warning labels for other grades. While one person’s toxic substance is apparently another person’s convenience, a WHO-designated Group 2B (possible) carcinogen that is a known neurotoxin should mandate warnings for Wi-Fi routers, laptops and tablets. In April, the Israeli Supreme Court indicated that more than warnings may be needed when it filed a conditional injunction that would prevent the use of Wi-Fi in schools by the Ministry of Education.
In addition to Wi-Fi and cell phones, the roll out of wireless utility “smart” meters on homes has brought high-powered transmitter infrastructure in closer to areas people inhabit, creating even greater radiation exposures. (See my article, “Rise of the Machines”, which compares Wi-Fi and smart meter exposure, and Karl Maret’s, MD, Eng. presentation at the San Francisco Commonwealth Club, which compares smart meter and cell tower emissions.) In May, HUD forced a conciliation agreement with a municipality to remove wireless water meter infrastructure that was making a resident sick. (Saskatchewan, Canada has been more aggressive -- announcing the removal of all 105,000 wireless utility meters from their province a few weeks ago.)
Last year, the FCC put out a request for comment on wireless standards, and many experts weighed in stating that the standards are inadequate. Also, notwithstanding the Murray holding, this month 29 lawsuits from plaintiffs who allege cell phones manufactured before 1996 caused brain tumors entered the discovery phase. Judge Frederick Weisberg of the D.C. Superior Court ruled that independent experts could testify about causation and, in what could be interpreted as a rebuke to the 2nd Circuit Court of Appeals (that deferentially allowed industry to set its own standards), stated that “Federal law is the supreme law of the land, but there is no constitutional provision that says federal facts are the supreme facts of the land. Federal law can preempt state law, but it cannot preempt scientific fact. The scientific truth, whatever it may be, lies outside of the FCC’s regulations about what is 'safe' or 'unsafe.'''
Yannon v. New York Telephone, 86 A.D.2d 241; 450 N.Y.S2d 893 (App Div., 982), a case which identified Microwave Sickness as a compensable disability, revealed an inconvenient truth early on that the wireless industry continues to deny. Courts in Germany, Spain and Australia have since made similar rulings. The difference between most contemporary sufferers of EHS and the Yannon victim is that they are developing the sickness from publicly allowable exposures in non-occupational settings, not merely having pre-existing conditions exacerbated by these exposures. The EU acknowledges that the number of people developing EHS is growing exponentially. Perhaps having learned from tobacco, lead, chlorofluorocarbons and asbestos, insurance companies have sounded warnings and declined to provide re-insurance; they are not planning on being one of the parties left without a chair when the music stops.
The Israeli Supreme Court issued its conditional injunction on the basis of the report that 8.5% of students were exhibiting symptoms of sensitivity to microwave radiation in the classroom (as well as on the basis of expert scientific testimony). While the remedying of public health issues tends to have a calculus that is inversely proportional to the power of the industry creating them and the popularity of (or addiction to) the product causing the issue in question, at first blush, assuming that the strength of the Wi-Fi in schools in Israel and the U.S. are similar, these numbers would suggest that most school districts are violating public endangerment statutes, such as N.Y. Penal Law §120.20.
The current proposal by the New York City Department of Information Technology and Telecommunications (DOITT) to turn 7,500 payphones in New York City and 2,500 additional locations into high-powered wireless hotspots would cause the city to engage in systemic violations of its own code. The New York City Human Rights Law offers reasonable accommodation to persons with many medical conditions including pregnant women (as of January, 2014). The American Academy of Environmental Medicine (AAEM) issued recommendations in 2012 stating that people with most medical conditions would benefit from avoiding electromagnetic and radiofrequency radiation exposure, and epidemiologist Devra Davis stated that pregnant women should avoid proximity to wireless routers at a press conference in New York City in June, 2014. Today, pregnant women and people with many medical conditions can assert reasonable accommodation by getting routers turned off indoors; once the hotspots, which are much higher powered than a router, are rolled out, the sidewalks will become inaccessible to some; others will not be able to follow doctors’ orders if they must go to the city of New York and simply walk on a street.
The FCC’s claims of safety cannot negate these legal realities.
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