A story in the New York Times discusses the potential for health concerns arising from cell phone use, which begs the question whether cell phones have the potential to be defective products. The threat appears to arise from the low-level radiation the phones emit during use. The article notes how most manufacturers include warnings in their manuals that recommend maintaining some amount of distance between you and your cell phone.
For instance, one manual states "When using [the device] near your body for voice calls or for wireless data transmission over a cellular network, keep [the device] at least 15 mm (5/8 inch) away from the body, and only use carrying cases, belt clips, or holders that do not have metal parts and that maintain at least 15 mm (5/8 inch) separation between [the device] and the body."
Of course, if one watches the behavior of most cell phone users, almost no one does this. This warning is also buried six pages into a 30-page manual. And most users probably have never actually read the manual.
Do they know something we don't?
The story indicates that there are 292 million wireless numbers in use today in the United States. In addition to affecting a huge population, the impact of finding that cell phones are a health hazard on the cell phone industry would be significant-no little matter for an industry that generates $109 billion a year in revenue.
Epidemiologist Devra Davis is concerned with brain cancer, pointing out that while there has been no average increase, there has been an increase in the 20-29 age group, while it has declined in older populations. Younger persons would have a much longer window of exposure to the type of radiation that cell phones produce.
What is equally troubling is just how little we know about low-level radiation. Man-made electromagnetic radiation has been in existence for slightly more than 100 years, while people have been using cell phones - on a widespread basis - for little more than 10 years.
Henry Lai, a bioengineering research professor at the University of Washington, found that 28 percent of studies with cell phone industry funding showed some sort of effect, while 67 percent of studies without such funding did so. "That's not trivial," he said.
His studies of rats show exposed to radiofrequency radiation had damaged brain DNA. Given the massive increase in the number of cell phones and cell towers, we are potentially all laboratory rats. And there is no control group.
The industry's trade association maintains that all F.C.C.-approved phones are perfectly safe. The implicit argument here is the "state of the art" defense, used in product liability cases.
State of the art?
Culpability in negligence cases frequently depends on foreseeability. If a reasonable manufacturer knows, or should have known that a product they make is dangerous or defective, causing harm to a user, they are responsible for the harm.
The state of the art defense argues that the manufacturer cannot be found liable for harm resulting from the use of their product, if given the state of the art when the product was introduced, the manufacturer could not have known the hazards.
The availability of this defense has varied in the last 50 years, but it's reasonably certain that an industry that earns over $100 billion would argue that their "warnings" are adequate, and given that "no one really knows" what harm users may suffer, the telecommunications industry would use state of the art arguments as part of its defense to any products liability lawsuit.
Given the global use of cell phones and the hundreds of millions of users, any negative side effects to long-term, heavy use, are likely to be on a large scale of magnitude.
