The second part (see the first part) of the analysis [es] by Vía Libre Foundation, takes up the issues and challenges posed by the World Conference on International Telecommunications (WCIT) in Dubai (United Arab Emirates).
After the WCIT and Beyond
By Enrique A. Chaparro
VI. Conflicting Positions
No one will be surprised if we say there are sectors (government and private) that see communication only or primarily as an opportunity to generate income; others for which the scope of communications should be subordinated to state politics, and then others, like us and other social organizations, who believe that the fundamental issue is public service and unrestricted access.
All of these positions are confronted and intertwined in every forum related to telecommunications, whether or not the Internet is included. The WCIT is not immune to this, and in fact we are aware of the existence of various positions. The most interesting were:
(P1) That of the United States and the European Union (EU), who made sure the ITR 1988 was not touched except for cosmetic changes. This posture was supported by countries linked to the U.S. by political alliances and FTAs, the Tier 1 networks of the United States, Australia, Japan and India, and large companies with Internet-based services, of which Google is the most prominent. This position is akin to the majority of the EU (and therefore I encompass them into one), that the ITR is no longer necessary and that the issue should be left to free market action (1);
(P2) A sum of proposals from China, the Russian Federation, the Arab world and some African nations, who wanted the explicit inclusion of the Internet in the ITR (2), a greater involvement of ITU member states in the management of the Internet, including issues of “cybersecurity”, and a “guarantee of no exclusion” to Internet access for all states.
(P3) That of large European telecommunications operators (including Tier 1 networks in Europe) grouped in ETNO, whose main agenda was to increase profits, based on the fact that they are the ones who provide the infrastructure that makes the Internet possible. The most “dangerous” of their proposals was the option to negotiate guidelines for quality of service freely between operators, which when applied to the Internet automatically destroys net neutrality (3), and the idea of making the method of “sender pays” widespread (which you will easily understand how much this was disliked by corporations like Google, Facebook or Twitter).
Strong campaigns were woven ahead of time around these positions, to enhance their own and discredit others. The main argument of the supporters of (P1) in favor of the classic “if it’s not broke, don’t fix it” (4) against the supporters of (P2) argued that state control over local Internet implied threats to freedom of expression and information, and the right to privacy (5). The campaign against proposal (P2) (and to a lesser degree, against (P3), which because of its technical intricacies appears harder to explain) reached a global scale, driven not only by state supporters of (P1), but also by corporations such as Google, especially active, the media and NGOs usually concerned with civil liberty issues in the Internet.
That campaign was not only very intense in the days before the WCIT, but kept up during the conference and was reflected in the catastrophic media headlines and doomsday articles (6). The intensity of the campaign led to the president of the ITU, Hammadoun Touré, agreeing at the beginning of the conference that the ITU would not deal with issues and decisions relating to the Internet, as had historically happened in the ITU, but that they would be agreed upon by consensus.
The supporters of proposal (P2) insisted on this, presenting a draft of its most extreme position to test the waters, then withdrawing it to present something a little calmer, which they also withdrew. The situation appeared to bog down.
With all moves aimed at incorporating Internet issues explicitly to the ITR failed, the last drafts before the final session seemed to get pretty close to proposal (P1), except for some small details. The text that moved toward the final meeting contained no mention of the Internet, and they had added two extremely important safeguards:
In the Preamble, the statement that “The Member States affirm their commitment to implement these regulations in a manner that respects and sustains their obligations to human rights” and
In Article 1.1, the statement that “These regulations do not address aspects of telecommunications related to content” (7)
But the day before the last [session], the United States and its usual allies (the UK and Canada) stirred things up. What made the U.S. “angry”, along with all the media that usually parrots the U.S. government, and the big corporations shouting disaster–Wall Street Journal (8), Forbes (9), going through CIO Magazine (10) or AOL Government (11)?
Apparently, it was because of the incorporation of Articles 5A and 5B. Too much, upon analysis, to generate a move that, according to the New York Times (12), was pre-arranged. Another factor is that on Wednesday, the consensus broke down and a vote was taken about an Internet resolution (13), but a main irritant seems to be the inclusion of a statement about the rights of member states to access international telecommunications services.
Why would such a seemingly innocuous statement (14) placed in the preamble be so serious for the U.S. and its allies? This statement, which was previously proposed as part of Article 3 is consistent with a proposal of the Arab states in the recent WTSA: T09-WTSA 12-C-0064 (15). If approved, it prevents (de jure, of course, which in practice is another matter), the United States from arbitrarily blocking access to international telecommunications (and by reasonable extension, the Internet) to or from countries considered “enemies” without formal declaration of hostilities. By way of example: An internet user in Iran cannot access Google services such as Analytics (16), cannot register domains on GoDaddy, cannot connect to Android Market or Appstore, cannot get an SSL certificate for an .ir site, etc., etc.
Let’s revisit the claims of the U.S., its allies and major corporations arising from (P1):
It avoids any progress that means transferring Internet regulatory issues from the realm of U.S. domestic law to international law.
It avoids any progress that implies universal service obligations.
It avoids any rate regulation.
The first and third objectives can be considered a “done deal”. The second as well, to a large extent, although the right of access statement leaves a loophole. Chances are this is at the root of the media show and scandal. Everything else a giant PR maneuver by the U.S. and its allies that managed to involve, frankly, a large number of social organizations that defend human rights in cyberspace.
Not that it’s wrong or bad to speak up against the possibility that governments not known for their respect of freedom have an international legal instrument enabling them to control its citizens’ action, but let’s see what happens in reality:
The ITR is applicable to international telecommunications services. But to access these services, a user must necessarily pass through a national service (17). And the national sphere is reserved to the respective states.
Nothing suggests that international telecommunications regulation stops the actions of censorship and surveillance of states seeking to do so.
Nothing indicates a priori that the scope of international law is worse for the Internet than the domestic law of the United States.
That the ITU, and consequently its member states, has a bigger role in that which results in being indispensable in regulating the Internet is not a good idea. In particular, because of its procedures which are not very transparent in the adoption of standards, and for its historical ineffectiveness. That the regulative issues of the Internet are governed by a “one state = one vote” mechanism is even worse.
But in the current state of affairs, ICANN–which is responsible for these issues (and others which would not need regulation, but even so it has dealt with) (18) — commits atrocities which make the ones ITU could commit pale in comparison (more about this in the section “Meanwhile…”, below).
Apart from these questions, it’s important to note that the ITU has no sanction power to enforce any of the rules issues, which means the alleged “threat” is an idle one: states who want to comply will, and those who don’t, won’t, without any consequences. As has happened so far. And unlike ICANN or WIPO, which thrive and grow fat on tariffs generated by the sectors that monitor (19), ITU’s finances depend on membership fees, the sale of standards documents, and donations. Its economic power is more than limited. Finally, the role of the ITU as a standardizing body has been declining since the 1980s, which in turn coincides with the downturn in technical quality of its subcommittees, in a downward spiral process. Only rules about radio from ITU-R have significant importance today in standardization.
2. Reading the existing ITR allows an exact interpretation that international connections among Internet service providers is tacitly included, as defined in Art. 2.2.
3. In order to understand more clearly: Under this form of organization, carrier X could have agreements for preferential quality of service with service provider Y, so that all traffic going through X to Y has higher priority relative to that going to Z, P, Q, or other services competing with Y.
4. Hypothesis that implies that today managing the Internet works fine, and as we will see later, is at least partially false.
5. It’s likely that China or Saudi Arabia, having the power, would censor its citizens’ access to the Internet. But it’s absolutely certain that they would do it, with or without ITR’s authorization, so the objection in most cases is purely rhetorical. And they do so with the express and voluntary cooperation of corporations that have headquarters in apparently democratic countries.
6. On December 6, Techdirt published an absurd article. Whether due to ignorance about how the ITR is applied, or in bad faith, either way it offends the concept of the word “journalism”. An excellent example of this campaign is this article in Vanity Fair from May, entitled “World War 3.0”.
7. (7) Translated directly from the original in English. The official version in Spanish, therefore, may be slightly different.
8. L. Gordon Crovitz: “The U.N.’s Internet Power Grab”, Wall Street Journal.
9. Larry Downes “Why is the UN Trying to Take over the Internet?”, Forbes Magazine.
10,. Stephen Lawson “Controversy erupts at WCIT over resolution on Internet”, CIO Magazine, 13 Dec 2012.
11. Kevin G. Coleman “UN Agency Opens International Internet Traffic To Government Scrutiny”, ”AOL Government”, 14 Dec 2012.
12. Eric Pfanner, “Message, if Murky, From U.S. to the World”, ”The New York Times”, 15 Dec 2012.
13. This deals with Resolution PLEN/3 (Dubai 2012), which we address below. Conference resolutions are not binding, unlike the ITR itself.
14. “These Regulations recognize the right of access of Member States to international telecommunication services.”
15. WTSA is the World Assembly of Telecommunications Standards, a technical and political decision-making mechanism of the ITU. The latest WTSA was held in Dubai, just before the WCIT. The reference text is available here.16. Doing so will display the message: “We’re unable to grant you access to Google Analytics at this time. A connection has been established between your current IP address and a country sanctioned by the U.S. government. For more information, see http://www.ustreas.gov/offices/enforcement/ofac/.”
17. Except for very limited exceptions, like direct satellite access… but these fall under the regulatory authority of the radio-electric spectrum of the states.
18. Furthermore, in the regulatory process, ICANN has managed to create weak or strong hierarchies, and therefore adjustable, resources that are not, by design, from the Internet, for example propelling the establishment of a “safe” infrastructure for domain names (DNSSEC) or for authorization of source routing (ROAs).
19. According to its financial statements in 2011, ICANN gets $65 million in fees paid by registries and registrars of domain names, and a net profit of $15 million (almost 20% of net profits).