Big New Global Threat to the Internet or Paper Tiger?: the ITU and Global Internet Regulation, Part I

Over the past few weeks, a mounting number of commentators in the U.S. have pushed a supposed new threat to an open internet into the spotlight: the International Telecommunications Union (ITU).

According to those raising the alarms, preparations to revise the ITU’s international telecommunications regulations (ITRs) at a meeting this December are being hijacked by a motley assortment of authoritarian countries, legacy telecoms operators, as well as the BRIC (Brazil, Russia, India and China) and other developing countries. Their goal? To establish “international control over the internet”. Indeed, the issue is deemed so serious that congressional hearings on “International Proposals to Regulate the Internet” were held in the U.S. at the end of last month.

There seem to be three main claims behind the charge.

The first is that the ITU currently has jurisdiction over telecommunications, but not the Internet. As a paper by Patrick Ryan and Jacob Glick, two lawyers at Google, asserts, “modifications to the . . . ITRs are required before the ITU can become active in the Internet space”.  Vint Cerf, Google’s “chief internet evangelist”, similarly chastised the ITU’s “aims to expand its regulatory authority to the Internet” in an op-ed piece for the New York Times, and in front of the just-mentioned congressional hearings a week later.

Indeed, according to FCC Commissioner Robert McDowell, the idea that the ITU already has any role with respect to the internet is just nuts. Only pariah governments such as “Iran argue[] that the current definition already includes the Internet”, he asserts.

Milton Mueller more sensibly argues that the line between basic telecom and enhanced information services like the internet developed in the U.S. over the past half-century and subsequently trampolined onto the global stage during the 1990s leads to the same conclusion: so far as the ITU’s authority is concerned, basic telecoms are within its orbit, enhanced information services like the internet are out.

Indeed, as one of the critics leading the charge, Eli Dourado told me from his perch at the Mercatus Centre/Technoliberation Front/Cato Institute in a Twitter exchange the other day, nobody was thinking about the internet back in 1988 when the ITRs were last revised and updated. As a result, he says, “no internet traffic is governed under the original treaty.  Right now, 90% plus of global communications are not governed by the ITRs. This would change that”.

In sum, if the critics are right, the ITU’s gambit to draw the internet into its orbit would be a huge change from the status quo. But are they right? I do not think so and will come back to why further below after laying out the two other main criticisms.

The second key focus of critics is that the “ITU is a “closed organization” beholden to “state-run telecom monopolies”, as Ryan and Glick say. Fowler calls the proposed changes to the ITRs an attempt to impose “a top-down, centralized, international regulatory overlay [that] is antithetical to the architecture of the Net, which is a global network of networks without borders”.

According to this view, the ITU is a government dominated, telegraph-era dinosaur that is ill-suited for global internet policy, where markets, private actors and contracts and a variety of multi-stakeholder interests, including ISOC, ICANN, IETF, W3C, and other civil society groups work in ways that are open, consensus oriented, and inclusive.  The same point was made by David Gross, former Coordinator for International Communications and Information Policy, U.S. Department of State, and now head of the WCIT Ad Hoc Working Group made up of a whose who of telecom, media and internet titans: AT&T, Cisco, Comcast, Google, Intel, Microsoft, News Corp., Oracle, Telefonica, Time Warner Cable, Verisign and Verizon.

The secrecy and lack of transparency and civil society participation is the main concern of open internet advocacy stalwarts such as Public Knowledge, EFF, Centre for Democracy and Technology, and ISOC. A letter form CDT and thirty-two other internet advocacy groups calls on the ITU to “Remove restrictions on the sharing of WCIT documents and release all preparatory materials. . . . Open the preparatory process to meaningful participation by civil society . . .; and for Member States, open public processes at the national level to solicit input on proposed amendments to the International Telecommunications Regulations . . .”.

To help speed along this process, a new Wikileaks-style site, WCITLeaks.org, has also been set up to collect and make available documents leaked by ITU insiders, with some good results already in just the first few days.

The third argument is the “Trojan Horse” argument. From this angle, an ‘axis of evil’ authoritarian states – Russia, China, Iran, Saudi Arabia, Syria — are using the ITU as a vehicle to turn their closed models of national internet spaces into a global standard.  One paper after another points to a smoking gun that supposedly reveals the ITU’s end-game: a transcript of a conversation between the head of the ITU and Russian President, Vladimir Putin in which the latter waxes on about the need to establish “international control of the internet through the ITU”.

The model supposedly being ushered onto the world stage through the ITU is not the well-known Chinese model of internet filtering and website blocking, but a new “Trusted Web 3.O”. In the Web 3.0 model, authoritarian states use filtering and blocking techniques to deny access and (1) establish national laws that put such methods on a firm legal footing, (2) carve out a distinctive national internet-media space dominated by national champions (Baidu, Tencent, Yandex, Vkontakte) instead of Google, Facebook and Apple, within which (3) the state actively uses ‘internet-media-communication’ campaigns (propaganda) to shape the total information environment (See Deibert & Rohozinski, ch. 2).

Obviously, if the critics are right, there’s a lot more at stake in the WCIT than just bringing rules last revised in 1988 before the internet was even well-known up-to-date. There is, indeed, much at stake with the proposed revisions and much that is quite nasty within the rules themselves and how the ITU itself approaches global telecom and internet policy. Yet, as Mueller notes, while the critics’ focus on internet control and censorship by nasty governments might play well to their base, their claims are overblown and misrepresent the nature of the problems at hand. I agree with Mueller on this point, but also disagree with him on a few significant points as well, as we will see.

Over the next few posts I will offer, first, a post that lays out my criticism of the critics and, second, another that hones in on both proposed changes to the ITRs and elements that look like they will be retained and perhaps expanded on that I think are deeply problematic and genuinely a threat if not to the global internet, to the people living within countries whose practices would obtain the imprimatur of legitimacy from the ITU if they are accepted at the WCIT in December. Finally, I’ll offer an argument as to why the ITU should be reformed and retained rather than scrapped.

The crux of my criticisms are as follows: (1) that the ITU has always had a role with respect to the internet by dint of the expansive definition of telecommunications governing its operations; (2) that the battle over whether the ITU’s approach to global telecom and internet policy would be driven by the state or the market was settled decisively in favour of “the market” in the 1980s and 90s; (3) that while the ITU has a role in telecom and internet policy, its role has been increasingly neutered by the shift to the WTO and the ‘multi-stakeholder internet governance model’ since the 1990s; and finally (4) that the non-binding nature of ITU rules and principle of national sovereignty underpinning them means that the ‘axis of internet evil’ cannot use the ITU as a Trojan Horse to impose their Web 3.0 model on the rest of the world.

After I lay out these criticisms, in the next post I intend to dig deeper into the details of the ITU’s Constitution, Decisions, Resolutions, Recommendations as well as the ITRs and proposed changes to them. I will do so in order to reveal that, in fact, there are aspects of the ITUs global telecom and internet policy regime that are deeply problematic and, indeed, wholly unworthy of whatever legitimacy might be brought their way by being associated with the ITU and, by extension, the UN.

In this respect, I will hone in on: (1) how people’s right to communicate (Art. 33) clashes with rules that allow the state to cut off and/or intercept communication in cases that “appear dangerous to the security of the State or . . . to public order or to decency” (Arts. 34&37); (2) proposed changes to ITRs by the European Telecommunications Network Operators (ETNO) that legitimize the pay-per model of the internet and thus threaten network neutrality (Art. 3); (3) existing aspects of Article 8 of the ITRs and proposed changes relating to cybercrime, national security, whistle-blowing, user identities and anonymity that are odds with privacy norms outlined elsewhere in the ITU framework (e.g. Article 37 on the Secrecy of Telecommunications) and which put the interests of the state well above those of the individual.

Finally, I will make an argument as to why the ITU, after thorough-going reforms, is still a useful and desirable organization, building on the following arguments:

(1) it is already working within the ‘multi-stakeholder internet governance regime’ through the Internet Governance Forum established in 2005 and serious questions exist about U.S. hegemony over, in particular, ICANN (as illustrated by the U.S. government’s targeting of domain name resources to cripple Wikileaks, take-down foreign websites accused of violating U.S. copyright laws (see Rojadirecta case) and recent legislative proposals to formalize such tactics in SOPA);

(2) proposed changes adding elements of consumer protection with respect to mobile roaming charges and contracts as well as with respect to evaluating concentration in telecom and internet markets at the global and national level are worthwhile; and

(3) it’s broader remit reconciles global markets and technology on the one hand with broader norms related to the right to communicate, development and other important human rights and freedoms, on the other, that are entirely absent from the one-sided, market-driven model of globalization represented by the ITU’s closest counterpart, the WTO.