For the first time in the ITU's history, it failed to reach consensus on the new ITRs at the World Conference on International Telecommunications
But the ITRs are a distraction from the ITU's real shortcomings, which are deficiencies of process
Digital Consumers by Dr Jeremy Malcolm
IN THE wake of the anti-climactic conclusion to the World Conference on International Telecommunications (WCIT) earlier this month, readers could be forgiven for being confused about whether all the hype about the International Telecommunications Union (ITU) staging a UN takeover of the Internet had ever represented a real threat, or had just been a beat-up by special interest groups with an agenda to push.
A good metaphor always helps to make a complicated story simple. So let's consider the ITU as Freemasonry, a secretive, exclusive and anachronistic society, best known for the secret handshake by which members identify each other.
The International Telecommunication Regulations (ITRs) are the Masonic Constitution, a seldom-amended document which guides the members of a Masonic Lodge in matters of ritual and morality.
Less well known is that when Freemasonry began, the symbols and language of masonry (with a lowercase “m”) weren't just metaphorical; its first members were actually stonemasons, and amongst the precepts of Freemasonry were practical rules for their craft.
Today of course, Freemasonry has no particular relevance to the building and construction trades. But imagine that a group of Freemasons proposed to hold a meeting (open to members only, of course) to update their Constitution to include new rules for the construction industry.
This would stimulate immediate opposition from construction workers, and rightfully so. But it would also play into a range of existing conspiracy theories that Freemasons are part of a much greater secretive plot to form an authoritarian one-world government, which would take over the sovereignty of nation states.
In the environment of fear instilled by these exaggerated stories, it would be forgotten that whilst Freemasonry may have some dumb ideas, it also actually does a lot of good work in charity and community service.
And so it was with the ITU at WCIT.
Yes, there were indeed a number of stupid proposals put forward for the ITU to regulate in areas beyond its competence: Proposals that ITU Recommendations should have mandatory status; that it should expand its mandate to include ICTs as well as telecommunications; that it should take over Internet naming and numbering functions from ICANN (the Internet Corporation for Assigned Names and Numbers); and that Internet content hosts should share more of their revenue with the operators of telecommunications networks.
None of these proposals succeeded, and not all even officially made it to the table. With the sustained opposition of the United States, Google and other powerful stakeholders, there was never any likelihood that they would.
What did make it through into the final treaty text are two provisions that, given that they are notionally responsible for the refusal of many countries to sign the ITRs, bear that responsibility like a dwarf wears a baggy suit. First, on security – it's worth setting this out in full:
Member States shall individually and collectively endeavor to ensure the security and robustness of international telecommunication networks in order to achieve effective use thereof and avoidance of technical harm thereto, as well as the harmonious development of international telecommunication services offered to the public.
And on spam:
Member States should endeavor to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services. Member States are encouraged to cooperate in that sense.
Underwhelmed? The theory, though it taxes the imagination somewhat, is that these provisions could allow ITU members to justify constraints on Internet content, on the pretext that they are merely addressing security or spam. But the ITU already has work programs on security and spam, and ITU members in turn already heavily regulate these fields, without having an explicit mandate in the ITRs.
Moreover, the new ITRs do explicitly state that “these Regulations do not address the content-related aspects of telecommunications,” and require states to interpret them “in a manner that respects and upholds their human rights obligations.”
Conversely, there were some good provisions on telecommunications included in the new ITRs, and it's a shame that by reason of the failure of the ITU to reach consensus on the treaty, they won't be globally implemented.
These include new rules to improve transparency and competition in global roaming, the promotion of best practices on energy efficiency, e-waste and accessibility of telecommunications services, and the adoption of a single global phone number for emergency services.
Much ado about …?
So what about the “UN takeover of the Internet” meme? This was always just a sound-bite to capture public attention. Taken literally, it implies a rather fanciful appraisal of the ITU's capacity to affect existing Internet governance arrangements.
Much was made of a side-resolution made at WCIT, “Fostering an Enabling Environment for the Internet,” which doesn't form part of the binding ITRs (a vital point missed by commentators). It is true that this resolution declares that “all governments should have an equal role and responsibility for international Internet governance,” and that this isn't really an accurate reflection of the multi-stakeholder model by which the Internet policies have been developed to date.
However, this is a battle that was fought and lost in 2005, when that language first appeared in a consensus statement of another ITU-organized conference, the World Summit on the Information Society (WSIS).
The United States agreed to that language as part of a hard-fought compromise, recognizing many countries' discomfort over its unilateral control over Internet naming and numbering, through a contractual relationship between ICANN and the US Department of Commerce. That relationship continues, and that discomfort has in no way abated. The WCIT side-resolution was in part a ham-fisted way for those countries to remind the United States of this.
The tussle over the wording of this resolution, and the procedural acrobatics that enabled the Chair to declare it adopted on a show of hands despite no vote being recorded, was undoubtedly a factor in the ultimate failure of the ITRs. But the final sticking point was a provision proposed for the preamble by the African bloc, stating “These Regulations recognize the right of access of Member States to international telecommunication services.”
The United States could not accept this given its long-standing embargo against US-based companies providing Internet services to Cuba (only recently bypassed with the installation of a fiber-optic communications link between Cuba and Venezuela).
When Iran pushed a vote on this provision, which the US and its allies lost, the chance of agreement being reached at all effectively died, and so for the first time in the ITU's history, it failed to reach consensus on the new ITRs.
A pinch of salt
It's important not to assume that just because there are repressive countries that support them, the new ITRs are bad. The fact that the United States and repressive countries are usually on the opposite side of measures at the United Nations is never a very good indication of their merits.
The US is almost the lone hold-out from signing treaties on the rights of the child, of women and of the disabled, as well as on nuclear disarmament and the environment, and in refusing to sanction Israel for its occupation of Palestine. So, by default, we should take the hardline position of the US at the UN with a pinch of salt.
Large segments of civil society and the private sector, riding the “Internet freedom” bandwagon, forgot this during WCIT and took the American anti-UN bluster at face value, turning the negotiation into a stylized battle between repression and freedom.
But as seen, the new ITRs (excluding the accompanying Internet resolution) are quite unobjectionable. The only reason for most countries not to sign is to draw a line in the sand, warning others off from any future attempt to use the ITU to regulate for the global Internet.
And to be fair, in all of this, that is a point worth making.
Other countries do have good cause to challenge the hegemony of the United States in existing Internet governance arrangements. More broadly, all stakeholders in concert do need to come up with better global mechanisms for developing shared principles to guide the regulation of Internet content and services.
At WSIS there was correctly found to be “a vacuum within the context of existing structures, since there is no global multi-stakeholder forum to address Internet-related public policy issues.” But the ITU is not the right institution to fill that vacuum.
To make that point didn't necessarily require a hardline refusal to allow any Internet-related text into the ITRs. ITU Secretary General Hamadoun Touré correctly stated at the conclusion of WCIT that “the two worlds of telecommunications and Internet are inextricably linked.”
In truth, the ITU has been involved with technical aspects of Internet governance for some time, and in the absence of a better multi-stakeholder model for Internet policy development, calls for it to do more will continue.
The elusive demons in the text of the ITRs are a distraction from the ITU's real shortcomings, which are deficiencies of process. Those deficiencies, long understood by insiders, are now out in the open: The use of closed-door private negotiations to develop text, the manner in which the Chair unilaterally declared a consensus on the problematic Internet resolution, the way in which Iran forced a vote on the African bloc amendment to the preamble, and above all, the fact that ultimately only governments had a seat at the table.
Such an outdated intergovernmental model is no way to run the Internet and everybody, bar ITU hardliners, agree on that. Just as we wouldn't allow the Freemasons to oversee the construction industry, we shouldn't allow the ITU's club of governments to dictate standards for our Internet, when it doesn't allow the community to fully and actively participate in the development of those standards.
Rather than being due to any major flaws in the text, the fate of the ITRs is symptomatic of the ITU's failure to meet the Internet community's standards of multi-stakeholder governance.
This doesn't mean that the ITU is a willing tool of repressive regimes, hell-bent on placing the Internet under a single world government. Neither does it imply that the ITU doesn't do good work in other fields, such as in its development and capacity building activities.
But it does mean that it's the wrong body to make global standards for the Internet, and as such will likely continue its inexorable decline into irrelevance, alongside the realm of voice communications over which it once held sway.
The widespread demonization of the ITU and of its members, on the other hand, was another failure of the WCIT process – and that wasn't the ITU's failure, but ours.
Dr Jeremy Malcolm is an Internet and Open Source lawyer, consumer advocate and geek. He is also a senior policy officer at Consumers International and can be found on Twitter and LinkedIn.
*Photos courtesy of International Telecommunications Union (ITU).
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