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The ITU and the Real Threats to the Internet, Part IV: the Triumph of State Security and Proposed Changes to the ITRs

This is the fourth in a series of posts on the potential implications of proposed changes and additions to the ITU’s international telecommunications regulations (ITRs) on the internet (earlier posts are herehere and here).

As we assess these potential implications it is necessary to sort out charges that are, in my view, overblown and alarmist versus those that have merit based on a close reading of the relevant ITU texts. I want to be clear that while I think that many of the charges being leveled at the ITU are trumped up baloney, there are actually many reasons to be concerned. I’ll briefly reprise what I see as the over blown claims (OBCs), then set out the most important real areas of concern.

Over Blown Claims (OBC)

(OBC1): The ITU & the Net: The claim that new rules being proposed for the WCIT this December could give the ITU authority over the internet, when currently it has none, is one OBC (see herehere and here), as I laid out in blog post two.

(OBC2) The Global Internet Tax: This is the claim that some countries want to meter internet traffic at their borders, a kind of tax that Facebook, Google, Apple, Netflix and other internet content companies would supposedly be forced to pay to reach users on the other side of the toll – simultaneously serving to fund broadband internet upgrades in foreign countries, constricting the free flow of info, and keeping people sealed off behind the closed and controlled Web 3.0 national internet spaces that are being built in Russia, China, Saudi Arabia, Iran and other repressive states (see here and here).

The kernal of truth in this matter is that European telecom operators have proposed to establish a “fee-for-carriage” model – like cable tv – that would allow them to charge big internet content companies according to the volume of traffic they generate. I don’t like it at all. It is a full-scale assault on network neutrality. Google hates it too (Ryan & GlickCerf NYTCerf Congress). Net neutrality folks should be up in arms, and some are.

The problem at the root of the critics’ assertions, however, is that the proposal by ETNO is not unusual but embodies the same “fee-for-carriage” model that telecom carriers such as AT&T, Comcast, Bell, Telecom NZ, and others have pursued for the past decade (see post 3). It is wrong to construe the demand to make internet companies pay for carriage as a tax, let alone a diabolical scheme by authoritarian governments to take-over the internet.

In addition, the idea of an internet metered at the border overlooks possible additions to Art. 3.7 of the ITRs that, as discussed in the last post, “enabl[e] direct international internet connections” between countries. “Special Arrangements” set out in Art. 9 of the constitution also means that telecom and internet companies can strike whatever deals they want to create end-to-end connectivity, so long as both countries on either end agree. Again, markets and contracts rule, not some kind of cyber-wall of Berlin.

(OBC3) Spam, Spam, Spam: The third, mostly bogus claim is that proposals to add references to spam in several places in the ITRs are the thin edge of a wedge that could lead to internet content regulation (Article 2.13; Art. 4.3a; and proposed new Art. 8A.5 and 8B). The proposal, however, urges countries to adopt “national legislation” covering spam – as many already do – and “to cooperate to take actions to counter spam” and “to exchange information on national findings/actions to counter spam”. This hardly seems like the thin of a wedge and, moreover, Article 2.13 explicitly excludes content as well as “meaningful . . . information of any type”.

Still, the U.S. is strongly opposed to such measures on the grounds that technological solutions are better suited to the problem than international law. Overkill, it says, and at odds with technological neutrality. Australia calls it too broad, Canada doesn’t like it either, and Portugal is still looking to see how it meshes with EU law. This is hardly an endorsement for the ‘global regulation of spam’ by the supposed axis of internet evil offering it, but the proposal is hardly tantamount to Armageddon, either (for annotated notes outlining countries’ views of proposed changes and additions, see here).

State Security, Splinternet and the Pending Death of the Open Global Internet: the Real Threats to the Internet

Now if you think I’m simply lining up as an apologist for the ITU, you’d be wrong, as the rest of this post makes clear.  Several proposals now on the table (see below) would cast a devastating blow to the internet by blessing the efforts of individual countries to build their own closed and controlled national Web 3.0 internet spaces today. In fact, many countries, including Anglo-European countries, are doing just that, although to a degree and of a kind that is demonstrably different than what is being built in the list of ‘rogue states’ that are often identified with such projects: Russia, China, Saudi Arabia, Iran, etc.

In fact, several sections of the ITU’s current framework already allow these kinds of projects, before any changes. Proposals to change or add new elements to the ITRs could make matters even worse, however.

Intercepting, Suspending and Blocking the Flow of Information since the 1850s: the Dark Side of the ITU

To see how, we need only to realize that nation-states have always claimed unbridled power to control national communication spaces, and to intercept, suspend and block the cross-border flow of information. The authority to inspect, suspend and cut-off communications that “appear dangerous to the security of the State or contrary to its laws, to public order or to decency” was first asserted by European governments in the 1850s during their drive to squelch popular rebellions. That authority was acknowledged by the Austro-German Telegraph Union and Western European Telegraph Union at the time, before being folded into the ITU when these organizations merged in 1865 (see Constitution, Article 34). That legacy hangs over the current WCIT talks like a dark cloud.

The supremacy of national security has been retained ever since and forms the basis of Articles 34, 35 and 37 in the ITU’s current Constitution, as the extracts below illustrate:

“Member States reserve the right to stop . . . the transmission of any private telegram which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency” (Art. 34(1), Stoppage of Telecommunications, emphasis added).

“Member States also reserve the right to cut off, in accordance with their national law, any other private telecommunications which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency” (Art. 34(2) Stoppage of Telecommunications, emphasis added).

“Each Member State reserves the right to suspend the international telecommunication service, either generally or only for certain relations and/or for certain kinds of correspondence” (Art. 35, Suspension of Services, emphasis added).

“Member States agree to take all possible measures . . . to ensur[e] the secrecy of international correspondence[, but] . . . reserve the right to communicate such corre­spondence to the competent authorities in order to ensure the application of their national laws or the execution of international conventions to which they are parties” (Art. 37, Secrecy of Telecommunications).

One proposal by the United Arab Emirates aims to replicate these measures in three new clauses to be added to the ITRs (Art. 7.3, 7.5 and 7.6, respectively), allowing such norms to do double-duty as high-level principles and day-to-day regulatory guidelines. The U.S. opposes the move, not because it sees telecoms and internet as a kind of global commons beyond the reach of harsh geopolitical concerns, but likely because the ITU already reflects the fact that national security concerns trump everything, and because it would not be unduly constrained by global norms anyway.  The US response to the UAE proposal is clear on the point: “We support retaining these provisions in the CS [constitution] and do not agree with . . . duplicating them in the ITRs”.

Cyberwar and the Fifth Domain of Battle: Militarization of the Internet versus Global Commons

The U.S. also refuses to be drawn into the proposals bandied about by Russia (mostly), China and a few other powerful military states over the past decade, this time to add a sprawling new section to the ITRs covering cybercrime, national security and cyberwar issues (Article 8A). The U.S. has rebuffed these moves for the same reasons mentioned above and, more to the point, because behind the veil of its global-internet-freedom-as- foreign-policy rhetoric is its more pressing conviction that the internet is now the fifth domain of war, alongside land, sea, air and space, a terrain where it grandiosely seeks to assert total infosphere dominance.

Seen in this context, overtures to “network defense and response to cyberattacks” (Article 8A.1) have no chance of adoption, even if setting aside the internet as a global commons under ITU protection outside the field of war might be a good idea. Moreover, and however, that rubicon has already been crossed with Russia believed to have been behind cyber-attacks against Georgia in 2008 and the Obama Administration’s recent admission that it played a role in the Stuxnet attacks against Iranian nuclear facilities.

Bearing those points in mind, Russian proposals to carve out new rules of cyberwar are hypocrisy, while the acknowledged facts of U.S. military policy means that it will dismiss such notions out of hand. Based on this, worries that additions to the ITRs intended to deal with such matters could serve as a Trojan horse for repressive controls over the internet can probably be safely tossed aside. It is worth noting, however, that amidst all the hand-wringing over the ITU threat to the internet, no one, as far as I know, touches upon how the hard realities of military power shape global telecom and internet policy, instead settling into numbing nostrums that pit the state against the individual.

A Laundry List of Many Items with Potentially Really Big Implications

Beyond the stance of the U.S. on the above matters, and questions of network defense and cyberwar, Article 8A starts off innocently enough, but quickly opens into a chamber house of horrors. It blandly refers to “confidence and security” in the title and the need to garner trust in online spaces (true enough), followed by a list of technical-sounding proposals about network security, data retention, data protection, fraud, spam, and so on.

Some of these principles are worthy of discussion, but the way they have been teed up for WCIT utterly fails to inspire confidence or hope. The measures are spearheaded by Russia and supported by China, with the latter telling us in the notes accompanying the proposals that new tools and rules are needed to:

“. . . protect the security of ICT infrastructure, misuse of ICTs, respect and protection of user information, build a fair, secure and trustworthy cyberspace . . . [with] new articles on network security in the ITRs”.

There is also a sundry list of other items included in the proposed new Article 8A as well as others drawn from recommendations at past conferences that deal with child online protection, fraud, user identity, etc.  One by one, most of these measures are reasonable, and most countries are dealing, on their own and in cooperation with one another, with all of them already.

Looking across all these proposals, however, reveals a raft of threats that, in their entirety, would usher in the foundation of controlled and closed national internet spaces that are subordinate to the unbound power of the state in every way:

  • Anonymity and Online Identity are implicated in repeated references to the need for users to have a recognized identity. This comports well with laws in countries such as China that require internet users to tie their online identity to the ‘real-name’ identity but if identifiability is the first step to regulability, as Lawrence Lessig claimed a decade ago, than this raft of references insisting on the need for online identity is a problem (e.g. proposed new Art. 3.6, 6.10, 8A.7, 8A.8). As ISOC states, such moves entail a “very active and inappropriate role in patrolling newly defined standards of behaviour on telecommunication and internet networks and in services”. I agree;
  • Privacy as well as Data Collection, Retention and Disclosure are mentioned as being critically important values several times (Articles 3.6, 8A.1, 8A.3, 8A.4) but are hemmed in by the repressive national security norms described above. While the wave of telecom and web monitoring bills currently under consideration just in the US (CISPA), Canada (Bill C-30) and the UK (Communications Data Bill) suggests that there is a need to reign in governments’ strong inclination to apply new surveillance and security measures to the internet, proposed changes to the ITRs would likely pressure telecom providers and ISPs to maximize rather than minimize the amount of personal data they collect, retain and disclose to state authorities.
  • Internet content regulation is seen as a threat scattered across many proposed changes to the ITRs but I think most of these claims are, as noted above, overblown. This threat, however, does loom large, but is mostly concentrated in a proposal to add the new Article 8A to the ITRs. Focusing our attention there, I agree with ISOC that the new rules could speed along and legitimate the development of national internet content regulation.

The worst examples of this come in two places in the new Article 8A.4 put forward by Russia. The first appears in a passage that reaffirms people’s “unrestricted” right to use international telecom services but immediately clips such rights with the caveat: “except in cases where . . . telecommunication services are used [to] . . . interfer[e] in the internal affairs or undermin[e] the sovereignty, national security, territorial integrity and public safety of other states”. One can only imagine how such measures might steel the hand of governments intent to interrupt the flow of tweets, Facebook updates, and other social media interactions that have played an important role, for example, in Arab Spring, the Occupy Wall Street protests, Wikileaks, etc. This is an effort to replicate the national security values already found in the Constitution in the ITRs, similar to the proposals of the UAE outlined above, and should be opposed for the same reasons.

Things are made worse yet by including what we might call the ‘anti-Wikileaks’ clause immediately afterwards, a provision that would trump people’s right to communicate when telecom-internet facilities are used “to divulge information of a sensitive nature” (Art. 8A.4). Leaking ‘sensitive information’, however, is not a crime and the idea that the “sensitive nature” of info will serve as a standard has no reference in free speech/press law and ideals. It also assumes an unbound conception of the state’s security interests, and gives it carte blanche to do as it pleases.

It is impossible to reconcile such prohibitions against info disclosure/publishing/leaking with the goal of furthering the development of a global and open internet or the right to communicate and of the free press. Accepting such a standard would be a much more potent Wikileaks killer than the heavy-handed measures that have already been used by the U.S. because it would give a legal sheen to what the U.S. has had to do so far by skirting around the edge of its on laws. Through such a clause, states would have free reign to crackdown on whistle-blowers with impunity and without limits.

A Few Final Thoughts

This exercise has forced me to change my views. The proposed additions and changes to the ITRs are worse than I thought. It is important that proposals now on the table for discussion at the upcoming WCIT get as much critical scrutiny as they can, and seen in that light, the WCITleaks site created by the folks at the Technology Liberation Front is a very useful tool.

That said, the analysis of the ITU and the proposed changes afoot have been largely strained through the prism of ideology, indiscriminately jumbling together overblown claims with real insights. As far as I can see, it is not the myriad of small changes to one section of the ITRs after another that constitute the major problem, but rather a set of issues that are mostly clustered in proposals by Russia, and supported by China, to add new sections to Article 8.  The damage such proposals could do to unsettled internet policy issues related to anonymity and online identity, privacy and personal data protection, as well as internet content regulation are enormous and can hardly be exaggerated.

On a more modest note, I understand that there is a battle over language that will occur in other sections, notably in Articles 1 and 2 over the definition of telecoms, with those who believe that the ITU does not cover the internet rejecting at every turn proposals by those who do to pepper the ITRs with explicit references to the internet. I believe the ITU’s authority already covers the internet, but understand that the politics of language will play a big role as countries stake out their turf on the matter.

I see no new global internet tax on the horizon and do not believe that references to spam are the thin of the wedge that will lead to national internet content regulations being imposed in one country after another. The truly awesome power of the state over communications, including the internet, however, comes into view as soon as we realize how stilted the existing ITU framework is in favour of national security imperatives.

Indeed, national security appears to trump everything, including the right to communicate and the free press. The fact that such norms are derived from a history of suppressing popular uprisings in Europe ought to make us think long and hard about their continued role amidst the political uprisings and revolts sweeping the world. Attempts by the UAE and Russia (with the support of China) to replicate repressive national security values in the ITRs through additions to Articles 7 and 8, respectively, do pose a threat to an open internet and political protest the world over.

This is important, too, because while I doubt that such measures have much chance of succeeding, they mesh with certain trends that define our times, with moves aplenty to impose comprehensive telecom and web monitoring plans in one country after another, as well as the copyright maximalist agenda that is turning telecom-ISPs across the world into internet cops on behalf of the media and entertainment industries. Such initiatives will continue with or without changes to the ITRs, which also highlights the reality that the ITU’s influence in these affairs is limited and not omnipotent.

Even if the most repressive aspects of proposed changes and additions to the ITRs were approved, this would not bind the whole world to implementing a single internet model. It would, however, bless the national Web 3.0 spaces that are already being built on the basis of three layers of control: (1) the systematic use of filtering and blocking to deny access to restricted websites and the recognition of such measures in national law; (2) dominance of national internet-media spaces by national champions (Baidu, Tencent, Yandex, Vkontakte, Facebook, Google, Apple, etc.) and (3) the active use of government-driven internet-media-communication campaigns (propaganda) to shape the total information environment (See Deibert & Rohozinski, ch. 2). The changes to the ITRs being sought by some countries, notably Russia and China, would add a fourth layer – international norms steeped in 19th century models of state security – that would further entrench the web 3.0 model and further lay waste to more important international norms associated with the right to communicate and free press.

Rearview Mirrors & the Rule of Markets: The ITU’s Supposed Big New Global Threat to the Internet, Part III

This is the third in a series of posts on the supposed threat of an ITU/UN take-over of the internet. As I’ve already said in two previous posts (here and here), I think the charges are vastly overblown, although there are interesting things to argue about and legitimate worries to be had.

Facts and Norms

There might also be victories for global internet governance to be had, if we take the ITU’s role seriously and that it, in turn, adopts only regulatory guiding principles that meet a minimum standard of liberal norms governing markets, human rights, a free press and freedom of expression.

To some extent, it already does by anchoring its own operations to Article 19 in the Universal Declaration of Human Rights (1948) (Constitution, Article 33; DRR Res. 71 (1998) & Rec. 2 (1994).[i]Article 19 stakes out a bold international right to communicate and for the free flow of information. The right to communicate includes the internet as well, as a UN report explicitly stated last year – an ideal the ITU duly embraced, although its commitment to it, as we will see, is badly compromised elsewhere by its own rules and regulations (see below and next post).

Some Canadians might be interested to know that legal scholar and McGill University professor, John Humphrey, helped to write the UNDHR as part of a bigger mission to remake the world at Bretton Woods so that peace, capitalism and democracy might survive after having been blown to smithereens by not one but two World Wars in the first half of the 20th century. C. B. McPherson, a renowned political philosopher and incidentally a Canadian as well, saw the UNDHR as elevating and institutionalizing a minimal set of norms that people worldwide saw as their own, and aspired to live by.

Of course, there are technolibertarian and free market, no government fantasists who argue three things against this rose-tinted view of the ITU and global institutions: (1) such things are irrelevant, a fog of rhetoric that (2) obscures practices that are 180° opposite to the values claimed and/or (3) a license for state-controlled telecom-run monopolies to rule telecoms and the internet, and thus impede the global free flow of information.

The ITU is not Irrelevant

I actually agree with point two, and in the next post will lay out a long list of contradictions, hypocrisy and problematic aspects of the ITU’s ITRs, Constitution, Decisions, Resolutions and Recommendations, etc., that I think are at odds with the right to communicate. Articles 34 and 37 in the Constitution, and 7 and 8 in the ITRs that set out governments’ rights to stop or suspend communication, and that address cybercrime, personal data, national security and public decency, in particular, are impossible in my mind to reconcile with the ITU’s commitments to the international right to freedom of the press and freedom of expression. The proposed addition of a whole new clause in Article 8 of the ITRs covering similar matters in an even more expansive ways will only compound the problem in the unlikely chance that they are approved.

While I am onside with critics on these points, I think their argument that the ITU is irrelevant, or a “state-run telecom monopoly club”, misses the mark. If it was irrelevant, we wouldn’t be talking about it. And talk isn’t just cheap fluff, either. Vint Cerf, Google’s “chief internet evangelist”, for instance, felt compelled enough by the UN’s statement on the right to communicate covering the internet that he wrote a column for the New York Times telling the world why he thought such a move was a mistake.

In addition, copyright lawyers and politicians refer to Article 19 constantly to legitimize their actions, laws, and litigation. They say, for instance, that the notice-and-take-down regimes requiring ISPs to act as copyright cops, and to cut-off internet users who have repeatedly used their connections to infringe copyright laws, are consistent with Article 19. Many telecom equipment makers and operators disagree. The same UN report that asserted that the right to communicate includes the internet also sees the notice-and-take-down and internet cut-off rules as running afoul of people’s right to communicate as well.

Of course, academics and rights monitoring groups like Article 19, Index on Censorship, Freedom House, Reporters Without Borders, and so on, use it to rank order countries through annual freedom of expression beauty pageants, with criteria specific to the internet playing a large part in their assessments. In sum, the language and actions of the ITU and UN help constitute the terrain upon which the politics of the internet takes place. High-flying rhetoric reflects not just high-minded words, but values and those values, in turn, make a mark on the real world.

The Market Rules at the ITU

For the rest of this post, I want to consider the idea that the ITU is a club beholden to state-run telecom monopolies. To be sure, this statement probably captured the ITU’s main tendencies in the past, when only nation-states were entitled to be members. Yet, even so, deep in the bowels of national delegations of countries with telecom networks that were mostly privately-owned in part or the whole of the 19th and 20th centuries – the UK, US, Canada, etc. – were representatives from the private companies that built and ran those networks: AT&T, Bell Canada, Northern Electric, Bell Labs, Cable and Wireless, etc. Governments did not act without their approval.

To be sure, national governments were to the fore and, at least until the 1980s and 1990s, most of the world was ruled by national telecom monopolies, and the private sector did take a back seat. Yet, that configuration of power and authority has since been undone.

In fact, the great battle between the market and the state was fought and won decisively in favour of “the market” in the 1980s, notably during the last revisions to the ITRs in 1988 and the Plenipot the year after. More than twenty years on, therefore, it is odd to see so many critics looking in the rearview mirror as they fight new battles over the internet.

The current composition of ITU membership reinforces the point. Today there are “193 countries and over 700 private-sector entities” (544 are telecom companies, with the rest made up of 166 associate members (i.e. ISOC, W3C, etc) and 38 academics).

The U.S. delegation to the ITU consists of a whose who of the telecom-media-internet giants: i.e. AT&T, Cisco, Comcast, Google, Intel, Microsoft, News Corp., Oracle, Telefonica, Time Warner Cable, Verisign and Verizon. Clearly its not only “the market” that rules, but some of the biggest telecom-media-internet companies on the planet.

Furthermore, it is not just that the composition of the ITU changed in the 1980s, but its ITRs and constitution, too. Some changes were subtle but crucial nonetheless, as in the recognition, for the first time, of “private operating agencies” – code for private telecom carriers — in the first Article of the ITRs.

A new Article 9 was included permitting ‘special arrangements’ between countries for whatever kinds of set-ups they wanted to permit. This was the ‘private networks clause’ the US had fought for decades in order to bring about at the international level similar conditions that it had been fostering at home since the 1950s (see last post). Article 9 also sanctioned international bypass arrangements that permitted competitive telecoms operators to skirt around national telecom monopolies, if the countries at both ends of the connection agreed.

In perhaps the clearest statement that the “market rules”, by 1998, the ITU baldly stated “that the development of the Internet is essentially market-led and driven by private and government initiatives(emphasis added, Res. 102).  NGOs active in the ITU and whose guidance it sought were also called out by name (ICANN, IETF, ISOC, W3C, etc.), not just once in the text and a footnote, but several times and in the main text (see Res. 101-103 & 133) on pages 408, 412, 415-6, 475 & 478. Cooperation with these non-state actors was put on a formal footing at this time, and expanded thereafter, especially with the WSIS processes that gave rise to the Internet Governance Forum (IGF), as I indicated in the second post in this series.

To claim, therefore, as Ryan and Patrick and almost all of those who appeared before the U.S. congressional hearings on “International Proposals to Regulate the Internet” did, that the ITU is a state-dominated, telegraph-era dinosaur is to be either willfully blind or seriously misleading. Of course, there are still undoubtedly many points of conflict, but for better or worse the notion that development of the internet will be market-driven is not one of them.

Four Reasons Why Proposed Changes to the ITRs are Mainly about Economics and Interconnection versus Internet Censorship and Control.

As Mueller observes, proposed changes to the ITRs are mainly about economics and interconnection rather than internet censorship and control. I agree, and in this regard I think four things stand out: (1) Article 9 of the ITRs allowing “special arrangements”; (2) the ETNO proposals to change Articles 2 through 4 in the ITRs in ways that would drive a stake through the heart of network neutrality principles; (3) clauses that add language to deal with anti-trust issues, competition authorities, and ‘alternative dispute resolution’ mechanisms; and (4) proposed new sections to Article 6 (6.12-6.18) that amount to a nascent ‘global consumer bill of rights’ for mobile services.

1) Article 9: Special Arrangements: Article 9 is crucial because it allows companies to build, lease or otherwise cobble together connections outside the ITU rules, so long as countries on both ends of the link agree. Some technolibertian, free marketeer, no government-types misrepresent this as an escape hatch through which “90 percent + of global comms” skirts around the ITU’s rules and regs, but this is not true.

The majority of traffic still runs across the networks of legacy telecom companies, and they are fighting tooth-and-nail to keep things that way. However, and this is where the importance of Article 9 rests, internet companies and over-the-top services (e.g. Netflix, Google, Facebook, Steam, Apple, etc.) are building content distribution networks (CDNs), or leasing them from providers like Akamai, Amazon Web Services, Limelight, etc., that bypass the incumbents’ long-distance and middle-mile connections, while still depending on their last mile links to subscribers’ premises — where monopolies and duopolies still rule.

Internet companies also cross-connect with one another at global internet exchanges and data centres around the world (e.g. Google links directly too Facebook), wherever governments permit ‘special arrangements’ allowing them to do so. Netflix, for instance, recently announced plans to build its own CDN – Open Connect – that will hand-off it’s massive flow of video “at no cost to the locations the ISP desires, . . . [or] at common internet exchanges”. No changes or additions to Article 9 in the ITRs have so far been proposed, so these arrangements will not be directly affected. Here, then, the market and contracts rule.

(2) A proposal to add a new section to the ITRS (Article 3.7) and a similar one by the European Telecommunications Network Operators (ETNO), however, appear to work against these arrangements. The language proposed for a new Article 3.7 directs Administrations (government regulators) to

  . . .  take appropriate measures nationally to ensure that all parties . . . involved in the provision of international Internet connections negotiate and agree to bilateral commercial arrangements . . . that take into account the possible need for compensation between them for the value of elements such as traffic flow, number of routes, geographical coverage and cost of international transmission, and the possible application of network externalities, amongst others (emphasis added).

The ETNO proposal speaks about the need “to ensure an adequate return on investment in high bandwidth infrastructures”, and directs telecom-ISPs “to negotiate commercial agreements to achieve a sustainable system of fair compensation for telecommunications services and, where appropriate, respecting the principle of sending party network pays (emphasis added). As Mueller points out, this is blatantly protectionist language for the benefit of incumbents and has little place in the ITRs. I agree.

This stuff is complicated, but for simplicity sake, let’s say that if you agree with network neutrality, and I do, this is one of the worst additions to the ITRs being proposed. It comes not so much from heavy-handed governments, however, but tracks moves by the incumbent telecom-ISPs in many countries to charge online video, gaming, search and social media platforms for carriage, and at more expensive rates than they charge their own comparable services. At its essence, this is bid to take the “fee-for-carriage” regime from broadcasting and super-impose on the internet, while trying to justify such a move in the name of a ‘higher principle’: paying for the construction of next generation broadband networks built and owned by legacy telecom-internet service providers.

The response to this amongst some critics has been the silliest, with Cnet and others calling this a bid by bad Europeans to impose a tax on Facebook and Google to pay for their own grandiose broadband internet projects. It is nothing of the sort. In fact, proposed additions to the ITRs (Art. 6.1.3a) rule out that prospect.

NZ – Aussie Imperialism?

The ETNO/Art. 3.7 proposals embody a creeping tendency to require Netflix, Google, Facebook, Apple and other heavy bandwidth services to pay for carriage. The trend seems to be flourishing the most in Australia and New Zealand, while gaining momentum in Canada, the U.S. and Europe. I call it the pay-per internet. Such practices allow telecom-ISPs to selectively impose bandwidth caps and heavier charges on some services while lifting the caps and charges for their own or allied services. In other words, some services chosen by the telecom-ISP get an open pipe while the rest are given something less. Call this a proposal for tolls on the global internet.

In New Zealand and Australia, these practices are nearly universal and impose severe burdens on internet users while throttling rivals and eroding the diversity of services.  Dominant players across the telecom-media-internet ecology are typically reinforced because the selective use of bandwidth caps and heavy charges are lifted for them while imposed on others. The basic principle at stake from the incumbents’ perspective was articulated a decade ago by then CEO of internet services at the ‘old AT&T’, who snorted that “AT&T didn’t spend $56 billion to get into the cable business to have the blood sucked out of our veins” (quoted in Lessig, 2000, p. 995).

Old attitudes don’t die easy and the same disparaging view of rival internet services ‘free-riding’ on the incumbent carriers’ pipes was once again expressed by the ‘new’ AT&T in 2005 after it had been brought back from the brink of a debt-addled death by SBC. The ‘new’ AT&T’s CEO Ed Whitacre put the matter this way:

 How do you think they’re [Google, MSN, Vonage, others] going to get to customers? Through a broadband pipe . . . . Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes?

Adding Article 3.7, or some variation of it, as found in the ETNO proposal, would be just the “mechanism” Whitacre was seeking. If adopted, it could accelerate a practice that has already been gaining momentum by giving it the ITU’s seal of approval.

For those with minds like an elephant, this might look like the “to-the-wall” debates about ‘international bypass’ that was suppose to have been put to rest in 1998 when the ITU embraced the hegemony of market rule. They’d be right, but this version of ‘old wine in new bottles’ would now neuter network neutrality.

Supporters of that principle might want to work hard to kill the ETNO/Article 3.7 proposals, because, as I said at the outset of this post, the words of the ITU matter in the global politics of the internet. For the technolibertarian, free marketeer crowd, the hypocrisy of calling out the ITU as a threat to the internet while remaining silent on telcos’ plans to foist the pay-per model on the global internet is stunning.

(3) Anti-trust issues, Competition Authorities, and ‘Alternative Dispute Resolution’ mechanisms: Consolidating the “Market-State”

Perhaps the fact that the proposals to enshrine the pay-per internet model through additions to Article 3 are at war with Article 9 (Special Arrangements) is the reason behind other proposals to add new language on anti-trust issues, competition authorities, and ‘alternative dispute resolution’ mechanisms in Article 6.8:

“When evaluating significant market power and its abuse, national competition authorities should also take into account international market share and international market power”.

Such language might come as a surprise to the self-annointed vanguard of the technology liberation front, but for those whose heads are in the real world rather than some idealized fantasy of perfect markets, its not surprising at all. In fact, at the same time that the market in telecoms and internet were being expanded by the ITU in the 1980s and 1990s, a significant new actor, the World Trade Organization, also emerged to galvanize the marketization push through two telecom agreements.

The market builders also turned to the nation state for help in droves. In 1990, there were 14 national telecom regulators worldwide, by 2000 there were 90; today there are 155 – most of which were built according to specs spelt in the regulatory annex to the WTO 1997 telecoms agreement.

(4) New Additions to Article 6 (6.12-6.18) hint at a ‘global consumer bill of rights’ for mobile services

Political economists like Karl Polanyi and Charles Linblom have long focused on the role of the state and regulation in constructing and shaping the contours of markets. The peculiar qualities of telecoms and internet communication means that such processes are especially evident in this domain.  While most of the expanded regulatory apparatus just referred to was all about constructing viable markets, they were mostly silent with respect to things like freedom of expression and consumer rights.  They were market-building exercises and only indirectly, if at all, concerned with freedom of expression issues and democracy.

Some of the proposed additions to the ITRs take a tentative step to filling in a few gaps on the consumer protection side of things by sketching ever so gently some guidelines with respect to international roaming charges for mobile services. In some respects, the language is familiar from the 1980s, with the emphasis on “cost-based pricing”, “pricing transparency”, etc., but it also reaches a bit further to add new language about the need to avoid the well-documented issue of billing shock and sky-high international roaming charges in many countries, not least in Canada, the U.S. and UK.

Indeed, Canadians are saddled with some of the highest international mobile roaming rates in the world, and that has recently been parlayed into a consensus proposal from regulators, industry and advocacy groups for a new ‘national code’ for wireless services.  The proposed additions to the ITRs, thus, are swimming with the tide.

Seen in this light, whatever moral suasion that these suggested additions to the ITRs might have might just be welcome by many people, especially in light of the mobile internet explosion.

Next Post: Really Scary Proposed Changes to the ITRs


[i] The basic texts of the ITU can be found here: http://www.itu.int/pub/S-CONF-PLEN-2011.

Big New Global Threat to the Internet or Paper Tiger?, Part II: Is the Internet Telecoms?

This is the second in a series of posts that takes a critical look at claims that proposed changes to the international telecommunications regulations (ITRs) at the WCIT meeting later this year could see the ITU establish “international control over the internet”.

My previous post described some of the background to the issues, and three key claims that are being made: (1) the ITU currently has no role with respect to the Internet but is hell-bent on changing this at WCIT; (2) the ITU is a state-run telecom club; (3) that it is a Trojan Horse for a plot by authoritarian states and legacy telcos to impose a new Web 3.0 Model – Controlled National Internet–Media Spaces – over the open global internet.

I think the claims are overblown. I do not believe that the ITU is intending to, or capable of, taking over the internet.  I mostly agree with Milton Mueller that most of the changes being discussed are mainly about economics and interconnection rather than internet censorship and control. An article in the New York Times today expressed a similar view as well.

In contrast to Mueller, though, I think that the ITU already has a legitimate claim to having a say with respect to the internet, and more to the point, it has already been playing such a role through the last dozen years of active participation in the multi-stakeholder model of internet governance.

Mueller argues that the ITU’s most important efforts to stake a claim to the internet terrain — domain name system (1996), the two phases of WSIS (2002-2005), IP address management (2009-2010), suggestions for a UN Committee on Internet Related Policies (2011) – have all been mostly failures, not least because they have all been staunchly resisted by the U.S. government. As he says, the U.S. Government ”squashed” an early campaign by the ITU and ISOC to wrestle control of the international domain name system from the U.S. “like a bug”.

Two years later, ICANN – a California-based non-profit still dependent on the US government today and increasingly embroiled in high-stakes battles over copyright worldwide (i.e. MegaUpload, Rojadirecta) – was created. Mueller is happy about this state-of-affairs. I am less so, but am under no illusions that the best path to choose is obvious.

If Professor Mueller is right, however, we might not have to choose. The ITU has no jurisdiction over the internet, he argues, just telecommunications. According to him, this is because, beginning fifty years ago during the FCC’s Computer I, II and III inquiries (c. 1965-2002), the U.S. drew a clear, bright line between telecom-based services (pipes and carriage) and computer-based information services (content and the internet).

The Computer II rules formalized the distinction between “basic” telecoms and “enhanced” information services after protracted struggles over key questions about market concentration in the telecom and information industries as well as the range of services to be delivered by the market versus those considered public goods. Many argue that the new rules were wildly successful, not least in terms of fueling the growth of the Internet. I am inclined to agree but would ratchet down the superlatives, without losing focus on issues of market concentration and the public goods nature of telecom, media and internet goods.

The rules were never straight-forward, and have been mired in political and legal mud ever since their adoption. The Supreme Court’s Brand X ruling in 2005 re-affirmed the rule, but in doing so basically set the enhanced service designation up as a near insurmountable barrier to formal net neutrality rules that can be applied to all carriers and ISPs.

The problem that I see with this argument is three-fold. First, it takes U.S. law as the world’s law. U.S. telecom policy, however, is not global internet policy, nor should it be. Moreover, if the basic/enhanced dichotomy has been mired in controversy in the U.S. for a half-century, just imagine its fate at the global level.

Second, the U.S. can slice and dice the definition of telecoms any way it sees fit, but other countries do things differently, and the ITU defines telecommunication very broadly as: “Any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems” (Constitution, Annex; ITR, Article 2.1). A plain reading of the definitions suggests that it includes the internet, which in fact is the view that the ITU and many of its member-states take.

Clearly, though, there is a debate over the scope of that definition and things will not be solved by recourse to formal definitions, however, but by the politics of language. Those opposed will stand firm against any formal references to the internet in the text of the ITRs, while those on the opposite side will pepper the rules with as many explicit references to the internet as possible. The fact that various members have proposed modifications or additions to at least a half-dozen sections of the ITRs that explicitly refer to the internet have brought these issues to a head.

The most important change to the ITRs is probably the proposal to include a reference to “internet traffic termination” to the existing definition of “International Telecommunications Services” in Article 2.2. Other proposed modifications refer to “VoIP” (Article 3.1, International Network), “Internet traffic and data transmission” as well as to “Internet and Internet Protocol” (Articles 4.2 and 4.3a, International Telecommunications Services, respectively).

Some proposals would also add new references to “international Internet connections” (Art. 3.7), the “internet” in a proposed new section 6.7 related to competition and interconnection issues and “measures to insure Internet stability and security” in 8.4.A (see Mueller on this point as well). References to  “cybercrime”, “data preservation, retention, protection”, “spam”, “identification”, “personal data protection” in new sections of Article 8 also have the internet clearly in their sights. I will examine some of the potential implications of these proposed changes and additions in more detail in the next two posts.

For now, however, my third argument is that things will not turn on the politics of language alone but the historical and contemporary practices of the ITU as well. In this regard, one things stands out that I think is determinative: the ITU has taken a broad, evolutionary view of its mandate and morphed with the times since its inception in 1865 (after the merger of two predecessor organizations — the Austro-German Telegraph Union (est. 1850) and the West European Telegraph Unioin (est. 1855), a point that will become important in the fourth post in this series) (see Drake, Introduction).

Originally called the International Telegraph Union, the ITU added telephones to its remit in the 1880s, radio in the early-1900s, and other new telecom technologies as they evolved. Its name was changed to the International Telecommunication Union in 1932 to reflect it broad and evolutionary view of the terrain. It’s Constitution, Decisions, Resolutions and Recommendations (DRRs) and the ITRs make a virtue out of the development and use of new telecom technologies, so it would be a real mystery to find a line drawn in the sand between telecoms before the internet and after, with the ITU confined strictly to the stuff that came in the past.

More recently, the ITU has been keen to carve out a distinct role for itself in regard to the internet since, at least, 1996, arguably earlier if we look back to the 1970s and 80s infatuation with ‘super-pipe’ models of integrated broadband media, even if the internet had not yet become a household name.  Its guts were nonetheless being put into place. And it is important to note that even the technical guts of the internet were not all made in America, as the paper by Google’s lawyers Patrick Ryan and Jacob Glick states. The UK, France and other parts of Europe were also involved, and the ITU was part of those efforts (Abbate, 1999; Mansell, 1993).

Yet, let’s take 1996 as the starting point because that is when the ITU and ISOC worked hand-in-glove in a bid to shift control over the domain name system from the U.S. to the ITU.  “The U.S. squashed that effort like a bug”, as Mueller states. Two years later, in 1998, the U.S. government created ICANN, where things have rested ever since.

Whereas Mueller sees just a long line of losses confirming that the ITU has no business in the internets of the world, I look past whether or not it has ‘won’ or ‘lost’ vis-a-vis the U.S. to see a long track record of practices that have evolved with the times. Thus, in the case of the internet, two years after the dispute over DNS, the ITU reaffirmed its commitment to cooperating with ISOC and IETF on global internet policy issues (DDR, Res. 102). It staked out matter-of-factly that it has a role to play “with regard to international public policy issues pertaining to the Internet and the management of Internet resources, including domain names and addresses” (DRR, Res. 102).

The two phases of WSIS between 2002 and 2005 also saw unprecedented participation by academics and civil society groups with the ITU in trying to imagine and map the frontiers of global internet policy. At the end of the three year process a new entity was born, the Internet Governance Forum (IGF), loosely under the direction of the United Nations, and with the ITU firmly within it alongside the rest of the ‘multi-stakeholder internet governance’ interests (ISOC, IETC, ICANN).

The IGF’s initial five year experimental period was renewed for another five years in 2010. All of this is important, too, because even if the ITRs do not currently refer to the internet, the ITU’s record of Decisions, Resolutions and Recommendations is chok-a-blok full of explicit and expansive references to the internet (see, for example, Resolutions 101, 133 & 179). Looking beyond the ITRs, therefore, we find a track-record of language on the internet that maps onto the ITU’s historical involvement with this domain since the late-1990s.

If the ITU has been such a loser with respect to global internet policy, and really has no place in it, as so many have argued (or just assumed) (Ryan & Glick; all but ISOC panellist Sally Wentworth at  U.S. congressional hearings on the so-called “International Proposals to Regulate the Internet” last month, etc.), it has been hiding in plain site. I think a better view of the matter is that, by dint of definition and a long history of evolution as well as contemporary practices, the ITU has a legitimate role to play in global internet policy.

Whether it exercises this role wisely or badly, however, is a different matter altogether, and which we will turn to in the next post.

Next Post: The ITU has been a business and market-dominated institution, not State-controlled, since the 1980s, maybe forever.

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.

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