Nuances lost in upcoming battle over Internet regulation

•  Issues surrounding the upcoming revision of the 1988 ITRs treaty are more naunced than reports suggest
• Consumer rights advocate says that  'a lot of that nuance has been lost by those who would rather whip up fear as a tactic to derail the negotiations'

THE lead-up to the hotly anticipated gathering of nation states in Dubai at the World Conference on International Telecommunications (WCIT) to review a 1988 treaty governing the international exchange of communications traffic just got additional fuel thrown into the fire.
 
According to a key internal planning document that appeared Saturday on the website WCITLeaks, the International Telecommunications Union (ITU) is executing a social media campaign to address what it expects will be fierce opposition to plans to review and revise the International Telecommunications Regulations (ITRs) treaty.
 
The newly-leaked document is the agenda for an “ITU Senior Management Retreat” which was held in Geneva in September and includes a detailed report on resistance to WCIT and the agency’s plans to counter criticism.
 
The report stated that early media coverage was driven by “a well-financed and well-organized campaign originating in the USA.”
 
It claimed that the purpose of that campaign was to discredit the ITU and WCIT, so as to minimize the chances that the new ITRs could affect the existing flow of funds for Internet traffic' adding that the campaign "often, and misleadingly, refers to proposals to 'control the Internet', 'restrict access', and 'impose censorship'.”
 
According to the leaked document, the agency had already launched what it calls a “counter-campaign” – a media blitz the agency plans to expand in light of what the ITU sees as the likely event of significant hostility to the revised treaty after the conference.
 
The counter-campaign will focus on ways to “mitigate the risk” of an “intensive anti-ratification campaign in [the US and Western Europe], based on the so-called lack of openness of the WCIT process, resulting in a significant number of countries refusing to ratify the new ITRs.”

In a report for Forbes, Larry Downes wrote that “it suggests senior ITU officials have become both paranoid and panicked over growing outrage over both the form and substance of the upcoming negotiations."
 
According to him, the leaked internal document makes “crystal clear that the agency fundamentally misunderstands the resistance of Internet users to an enhanced UN role in Internet governance, and to proposals that would give repressive governments increased political cover to slow or silence the free flow of information under the guise of implementing a UN treaty.”
 
“The ITU has been caught utterly flat-footed by the response to its Internet power grab. The agency is now straining to paint itself as an innocent victim of negative press intended for other targets,” he added.
 
Regardless of the ongoing battle for “hearts and minds” over the upcoming review of the ITRs and its possible consequences, it is the underlying issues which led to this, that deserves a closer look.
 
Digital News Asia (DNA) recently interviewed Jeremy Malcolm (pic), a senior policy officer and project coordinator for Intellectual Property and Communications with Consumers International (CI) an independent global federation of consumer rights groups, for his thoughts on the issues at hand.

In his view, the issues are a lot more nuanced and for various reasons, “a lot of that nuance has been lost by those who would rather whip up fear as a tactic to derail the negotiations.”
 
DNA: Why is the upcoming review of the ITRs becoming such a big concern?
 
Malcolm: The ITU came into existence at a time when global communications networks were generally owned by government monopolies, and as such the rules that they devised for the network were very hierarchical by design, with governments situated at the top of the pyramid.
 
This is antithetical to how the Internet operates, as it was designed to avoid hierarchy wherever possible, so that it wouldn't have a single point of failure. The culture clash between the ITU and the Internet's technical community is therefore not very difficult to understand.
 
The short and simplistic answer to your question is that to any expansion of the ITU's responsibility for the way that the Internet is managed would naturally be in favor of governments and large (usually former government monopoly) telecommunications providers. It would be to the detriment of content providers and ordinary Internet users -- neither of which are well represented within the ITU.
 
The clearest example of this is found in proposals for new charging mechanisms. What this basically boils down to is the argument that there should be a more equitable split of revenue between content providers who provided value-added services over the Internet, and the telecommunications network operators who don't see any direct revenue from those services.
 
That sounds like a strange thing to ask for, until you realize that the ITU members consider this normal, since that's how the telephone network worked. When you place a voice call, the revenue from that call is shared between the initiating phone network and the receiving network. With the demise of voice traffic as a significant revenue source, they feel entitled to a share of Internet content revenue to plug the gap.
 
DNA: What other issues are in play?
 
Malcolm: Aside from that, there are also rumblings from governments which want to use the ITU to regulate content, security, etc.  Some of these are the kind of governments (like the Russian Federation and Arab governments) which want these powers for exactly the kinds of reasons you might fear. And almost nobody else wants to see them get it.

So the simplistic answer is to agree that it would be bad for the ITU to make any significant changes to the ITRs, because it is dominated by governments and large telecommunications companies which would make any such changes in their own interests only.
 
DNA: But?
 
Malcolm: Firstly, there is little chance that any of these changes will make it through, because the ITU operates by consensus. If any government objects to changes that another government proposes, they will not succeed. In theory the ITU can resort to voting if consensus can't be reached, but in all its history that has never happened before, and is unlikely to happen now.
 
So the huge and well-funded anti-ITU campaign is more about slapping the ITU back into its cage, rather than in fear that any of the bad proposals will actually be accepted.
 
Secondly, the proposed changes are mostly symbolic anyway. Whether the ITRs say that Russia can regulate Internet security or not, Russia is going to do it. For that matter, so is the USA. The ITRs are very high level documents which have little impact on what governments actually do.
 
Thirdly, all this wailing about how bad it would be to give the ITU more power over the Internet is obscuring the fact that there really are problems with the Internet governance status quo. Sure, handing unresolved issues such as content regulation, security and privacy to the ITU is not the answer. 
 
DNA: In your opinion, what is the answer?
 
Malcolm: What is needed is a third way whereby globally-applicable public policies on these issues can be negotiated in a multi-stakeholder forum in which all stakeholders, not just governments and big business, have a say.
 
This was one of the objectives behind the formation of an Internet Governance Forum (IGF). Formed at the World Summit on the Information Society (WSIS) in 2005, it had a mandate to do a dozen things, and some of them it has already done well, like providing a discussion forum.

But that was really window dressing anyway. 
 
The core disagreement at WSIS was not about whether to create a new annual Internet conference, it was about how to create a more globally democratic way of developing Internet-related public policies (and assessing existing policy development processes to the same standard).
 
So this involves functions like making recommendations, interfacing with intergovernmental and other international organizations at an executive level, and assessing the embodiment of the WSIS principles in other Internet governance institutions.
 
None of that has been done.
 
The other outcome of WSIS was a process called "enhanced cooperation" of which the IGF is a part. Everyone agreed that there should be an IGF which would discuss and make non-binding policy-recommendations, but they could not agree on a higher level process between governments.

That was left deliberately vague, and they called it a "process towards enhanced cooperation on Internet-related public policy issues."  The IGF was only one part of that broader plan for enhanced cooperation, which would involve governments exercising their policy authority in consultation with other stakeholders. Since WSIS, nothing was done to advance this, because of obstruction by the USA, the private sector, and the Internet technical community.
 
DNA: Why is there a need for this? What is broken about the status quo? 
 
Malcolm: It boils down to the fact that the Internet is inherently transnational. Whilst the Internet can be, and inevitably is, regulated on a national level, the effects of such regulation are not confined within national borders. The effects of those laws "leak out" across borders -- for example, the American Digital Millennium Copyright Act (DMCA) applies across the world even to content created and uploaded by those with no link to the US.
 
Conversely, the behavior that laws are directed to cannot be confined within national borders -- for example, it's illegal to offer gambling services or pharmaceuticals to US citizens from outside the US, but that behavior effectively can't be controlled by US law.
 
So you need to have a transnational approach to these issues if regulations affecting the Internet are to have any coherency. This doesn't necessarily mean that there needs to be uniformity. But it does mean that the stakeholders affected by regulations at the national level are more than just a country's own citizens.
 
So the democratic legitimacy of such regulation depends on those broader stakeholders having been consulted through some globalized process.
 
The IGF and the (yet to be specified) enhanced cooperation mechanism would provide such a process.
 
DNA: What else took place during this year’s IGF?
 
Malcolm: So the most interesting thing that happened at the IGF this year was that the bad proposals at the ITU were used as a bargaining chip against the US Government, which (until now) had been most resistant to any changes to the Internet governance status quo, and would not even agree to the formation of a working group to discuss mechanisms for enhanced cooperation.
 
Suddenly, at the IGF this month, they agreed to do so. What was behind this sudden and surprising change of heart?  It was because countries like India agreed not to push hardline positions at the ITU, if the US would allow India's concerns to be raised in another, more multi-stakeholder, enhanced cooperation process.

India is not an authoritarian government, and neither are many of the other governments such as Brazil that are pushing for change, so what are their concerns that the USA has been so strongly resisting, that has forced them to resort to the ITU? 
 
Some of these concerns are over the fact that the US Government has unilateral control of the root of the DNS system, through ICANN (The Internet Corporation for Assigned Names and Numbers) which is a California-registered corporation.
 
When the ITU says that it has no plans to gain more control over "Internet governance", this is what it is denying -- it is using a very narrow definition of Internet governance. But there is a much broader definition of Internet governance that was accepted at WSIS, which includes everything from freedom of expression, security, cybercrime to privacy, and so the ITU is at best being deceptive when it says that it doesn't plan to take any more control over Internet governance, as many of these issues (particularly security) are the subject of proposals for revisions to the ITRs.
 
The ideal situation would be if control over Internet names and numbers stayed at ICANN but that it was somehow globalized so that it was no longer a US-based corporation; [but] where the ITU remained in control over its very narrow existing area of technical standards for telecommunications networks (but not Internet content), and a new multi-stakeholder forum (perhaps within the IGF) emerged to deal with all of the other border-crossing Internet governance issues that fall within the cracks.
 
This would fulfill the Tunis Agenda's mandate for an enhanced cooperation process, and satisfying democratic countries like India and Brazil, as well as less-democratic countries like Russia, that have been causing most of the fuss at the ITU due to the US Government's intransigence.
 
DNA: So in your view, what is the likely outcome of all this? 
 
Malcolm: My guess is that the changes to the ITRs will be minimal, the ITU will be somewhat chastened by the whole thing, and the countries that have been calling for reform will shift their attention to the new working group on enhanced cooperation that the US recently agreed to accept.
 
Not many people know that, but now you're one of those who do.

Previous Installment: Debate over Internet’s fate to light up in Dubai