Operative electronic communications infrastructure right across the UK is essential for a digital economy that is modern, functioning and connected. In more recent years, how that infrastructure can be secured and protected from nefarious external players, is a key challenge for government, one which it has been seeking to address with legislative change.

The infrastructure and the issue

Wireless telecommunications infrastructure in masts and equipment on land has of recent times been highlighted as a security risk owing to the challenging intentions of the external players providing the kit.

Undersea fibre optic cabling in particular is transferring 97% of all our communications and £trillions of financial data every day. The cables are vulnerable to sabotage as an increasingly unconventional method of warfare. An example of the risk and exposure was highlighted in the national press with Russia using "spy ships" to map European undersea cabling infrastructure. The vulnerability of undersea cabling was also exposed by the purposeful damage to the Nord Stream gas pipes.

With the significant increase in power being supplied from offshore renewable energy sources and coming ashore by cable, the safety and integrity of those cables and the balancing of the rights and obligations of those who use both the sea and the seabed for commercial purposes has become ever more important.

The case for reform: Undersea

Whilst there is historic legislation governing the use of undersea cabling, given the extent of global dependence on this infrastructure, modernisation is called for. The key pieces of international law are:

1958 Geneva Convention on the High Seas – confirming states are not able to obstruct the construction of undersea cables in international waters.

1982 United Nations Convention on the Law of the Sea – known as the ‘constitution for the oceans’, extending protections given to undersea cabling in international waters; and does not "in any way restrict the freedom of action of belligerents" i.e. undersea cabling can be a legitimate target during wartime.

1884 Convention for the Protection of Submarine Telegraph Cables – making it "a punishable offence to break or injure a submarine cable, wilfully or by culpable negligence, in such manner as might interrupt or obstruct telegraphic communication”.

    In 2017, a report on this issue by the then MP Rishi Sunak and published by UK think tank Policy Exchange, highlighted the inadequacy of international legislative protection for undersea cables, asserting that the private ownership of undersea cables has meant that governments have taken a less active role in transnational communications infrastructure than in the activities of other strategic industries.

    The case for reform: On land

    In relation to on-land infrastructure, legislative reform to address telecommunications security has already begun. Beginning in November 2021, with introduction of the Telecommunications (Security) Act 2021 receiving royal ascent introducing new duties on providers of public electronic communications networks and services to identify and reduce the risk of security compromises, and prepare for the possibility of their occurrence. Then, on 22 August 2022, the UK government announced its proposals for further reform following consultation for new regulations and a code of practice, leading to the introduction in October of The Electronic Communications (Security Measures) Regulations 2022 and in December the Telecommunications Security Code of Practice.

    On 6 December 2022, the Product Security and Telecommunications Infrastructure Act 2022 received royal assent making amongst other things, changes to the UK's Electronic Communications Code (Code). On 26 April this year, section 66 of the Act came into force. The provision allows the UK government to refuse an application by a party seeking Code rights, on the grounds of national security. For more information about this and other changes to the Code, please see our blog on the topic here.

    If you are an operator or infrastructure provider dealing with telecommunications issues or, you have any concerns or questions about the impact these issues may have on you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies' contact.