From 3 to 14 December 2012, the governments of the world will meet in Dubai, at the World Conference on International Telecommunications (WCIT), to review the International Telecommunication Regulations (ITRs). Why should this be of concern to Internet activists? This briefing paper, authored by Rishab Bailey, answers the most frequently asked questions (FAQ) on why the ITU and the ITRs matter to the future of the Internet, and what the significance of current developments at the ITU could be for the Internet in a developing country like India.
The International Telecommunication Union (ITU) was founded in 1865, as the International Telegraph Union. It is an intergovernmental body responsible for the facilitation and development of interconnection of telecommunication networks across countries. Through standard setting in the form of recommendations, the ITU establishes a system of global regulation through which it seeks to foster the growth of worldwide communications and improve access thereto.
As the world’s oldest intergovernmental body, the ITU comprises over 190member states. The ITU is placed under the supervision of the Economic and Social Council in the United Nations.
In addition to member states, the ITU is also comprised of various private sector members, who pay an annual subscription fee. Private sector members include network operators, service providers, equipment manufacturers, scientific, technical and development organisations. These organisations do not have the same rights and privileges as the primary constituents of the ITU — i.e. the member states — but lend specific technical and other expertise to the study groups/advisory groups where the brunt of the ITUs work is done. In that sense, they assist with the process of creation of globally acceptable regulation.
Such regulation under the ITU frequently takes the form of standards for telecommunications services, known as recommendations. This is done in numerous sectors, ranging from regulating the use of radio frequency spectrum to the coordinated use of geostationary-satellite orbits.
The ITUs main activities include:
Standardising telecommunications technologies, services and operations, including tariffs and numbering plans;
Allocating radio frequency bands to different services and coordinating and registering frequency assignments and satellite orbital positions so as to avoid harmful interference;
Promoting the development of telecommunications infrastructure and services, regulatory institutions, and human resources in developing countries;
Providing information on global telecommunications trends and developments.
Importantly, it is also under the aegis of the ITU that member states derive legitimacy for imposition of public interest regulation such as universal service obligations, common carrier conditions, carrier of last resort, etc. These ensure that the primary aims of the ITU — namely improving accessibility to telecommunications, ensuring appropriate interconnection of all part of the globe and equitable development of telecommunications systems — are met.
(a) A Plenipotentiary Conference: which is the governing body of the ITU. It meets every four years to review the Constitution and Convention of the ITU. The Plenipotentiary Conference has overall charge of the ITU and elects the secretary-general, the deputy secretary-general and the directors of the three separate departments of the ITU.
(b) The Council: is composed of a maximum of twenty five of the ITU Member States. This body acts on behalf of the Plenipotentiary Conference and meets annually to consider broad telecommunication policy issues.
The ITU does its more substantive work (for instance, the setting of standards) through three specialised bodies or bureaus, each of which deals with a particular aspect of telecommunications, namely, the Radio-communication Sector (ITU‑R), the Telecommunication Standardisation Sector (ITU‑T) and the Telecommunications Development Sector (ITU‑D). Each of these bureaus comprises advisory boards and study groups which do most of the substantive standard setting work of the organisation. The membership of the advisory boards and study groups is drawn from all the members of the ITU, not just the member states.
How does the ITU function? Is the functioning of the ITU transparent and inclusive? #
The framework for the composition and functioning of the ITU is found in the ITU Constitution and Convention. The other two crucial documents that establish the present global telecommunication system are the Radio Regulations and the International Telecommunication Regulations (ITRs). All these documents are international treaties – signed and ratified by members states and enforceable against one another in international law.
While the ITU is an inter-governmental organisation, in view of the nature of the telecommunications sector, and as mentioned above, the ITU includes various private sector members in its membership. The current ITU Constitution provides for three distinct classes of membership: member states, sector members, and associates. Each has differing rights and obligations. Private sector participation is largely restricted to the study groups and advisory boards that lay down standards/make sector specific recommendations. Decision making powers at the ITU lie exclusively with member states.
The ITU has often been criticised for its methods of functioning, which ensure that secrecy is maintained regarding policy proposals and other crucial documentation. One caveat: it is often the member states of the ITU that resist attempts at openness and transparency rather than any mandatory provisions to this effect in the ITUs constituting documents.
Whatever the cause, the ITU does not always put its documents into the public domain for scrutiny, and this has lead to fears amongst various stakeholders in Internet governance regarding the openness of governance procedures in particular when it comes to the Internet (the Internet is presently not regulated or governed solely by member states but rather through a variety of intergovernmental and private sector organisations, broadly leading to a multistakeholder model of governance.
In addition, and crucially, events such as the WCIT do not allow public participation (i.e. inputs into decision making which is the sole preserve of member states) and in fact do not even have to be open to civil society observers.
What are the ITRs and what makes them so important? #
As mentioned above, the ITRs together with the Radio Regulations form the basis for global telecommunications regulation. The ITRs are a treaty signed in 1988 at the World Administrative Telegraph and Telephone Conference in Melbourne, Australia, and lay down general principles to ensure that networks in different countries connect to each other and that telecommunications services are offered to the public in a fair and efficient manner.
The ITRs contain provisions pertaining to:
international settlement of accounts (to set out methods for payments to be exchanged between countries and operators to ensure efficient and transparent use of global telecommunications systems);
priority of emergency communications (which ensures access to emergency service numbers as a matter of right, and as a priority over general communications);
general principles pertaining to interconnection (which form the basis of global interconnectivity of networks and are the reason you can seamlessly make calls to foreign countries);
Importantly, the ITRs also specify that governments should make a wide range of telecommunication services generally accessible to the public. The ITRs require all signatories to comply, to the greatest extent possible, with the recommendations of the ITU apropos of application of the principles contained therein.
As the ITRs were signed in 1988 (and came into force in 1990), a need has been felt to update them through a process of amendment, in order to bring them in line with changing technology as well as a different geopolitical ecosystem.
For example, at the time the ITRs were decided, only six countries in the world had privatised telecommunications systems; today, most countries have privatised telecommunications services, in addition to which the use of mobile technology is ubiquitous. The advent and unprecedented growth of the Internet, and in more technical terms a change from switching systems to packet systems of communication, have also been identified as important evolutions.
The body with the powers to amend the ITRs is the WCIT and this conference meets in Dubai from the 3rd of December onwards in order to consider various proposals put forward by member states for review and amendment of the regulations.
Why is there so much controversy surrounding the WCIT2012? #
Broadly speaking there are two macro issues that arise out of the amendment of the ITRs:
first, whether a governmental oversight of the Internet is required, and what are the best ways of achieving this in order to ensure global problems related to the Internet can be resolved appropriately (without changing the character and basic architecture of the Internet),
and second, the more specific problem of whether the ITU is the most appropriate forum to deal with such issues, and the nature of the content of the amendments suggested by various member states.
The Internet is presently governed in a somewhat haphazard way, reflecting its growth as a largely private endeavour, with many different global bodies having jurisdiction over different domains. While these institutions can be criticised on a fair few grounds, a common strength is that they all tend to be multi-stakeholder in composition and therefore more participatory and transparent in their functioning. This is largely due to the historical development of the Internet through a unique (and decentralised) private-public partnership model. Thus, you have bodies such as
ICANN, which is a corporation registered in the United States of America that governs the naming and addressing system on the world wide web;
the IGF, a conference organised under the aegis of the UN but which includes industry bodies and non-government organisations, that acts as a venue for dialogue on public policy related to Internet governance issues, such as the Internet’s sustainability, robustness, security, stability and development;
the World Wide Web Consortium (W3C), a multi-stakeholder body which develops web standards;
There is a growing debate about whether or not a global intergovernmental body needs to be set up in order to regulate the Internet, in particular with respect to issues such as cyber security, fraud, spam, IP interconnection, etc. Many countries from the Global South, including India, have voiced their displeasure with present systems of governance of the Internet and to this effect India has in fact submitted a proposal to the United Nations for the setting up of an organisation exclusively to govern the Internet (UN-CIRP). While it now appears that India’s proposal titled UN-CIRP is no longer on the table, India has recently suggested to establish a Working Group on Enhanced Cooperation to discuss the establishment of a ‘consultative’, ‘evolutionary’, ‘accountable’ and ‘inclusive’ paradigm for the governance of cyberspace.
Where the ITU is concerned, the debate is particularly piquant given that likely technological changes in the next few decades will see global telecommunications systems move further away from traditional telephony and switching systems towards data systems using IP interconnection, possibly to the extent of rendering the ITU useless if its mandate is restricted to purely traditional telephony and the radio. This would not necessarily be a positive evolution: in the event that telecommunication companies are able to successfully switch to Internet protocol addressing, this would, for instance, remove such services from the scope of ITU public interest regulation that is presently responsible for ensuring equitable access (both in terms of physical access as well as in terms of content).
What are the broad contours of the pro and anti regulation debate? #
Both those arguing for and against public regulation of the telecommunication space have convincing arguments to support their stance. For instance, it is argued that private regulation has the flexibility and competence that is needed to deal with a constantly evolving structure such as the Internet. Moreover, the Internet has become a formidable ally of democracy, often against the will of repressive governments. Placing it under government control might lead at once to inefficiencies and enhanced risk of political censorship. These arguments generally follow the line of ‘if it isn’t broken, why fix it?’.
Others, however, point to the excellent work of the ITU in encouraging the spread of development of traditional telecommunications systems and believe that a similar role could be played even in the context of the Internet. The argument goes that the Internet is far from perfect even if it isn’t broken, and that challenges are emerging with growing frequency which cannot be dealt with appropriately through present methods of regulation. Issues such as intellectual property enforcement, privacy and security are believed (rightly or wrongly) to have gained prominence in policy debates due to a perceived lack of adequate legal tools and coordination mechanisms.
Proponents of this view additionally note that regulation also assists in holding corporations and service providers accountable to the public, and such public interest regulation can only be laid down by governments (through universal service obligations, common carrier conditions, carrier of last resort conditions, etc). Further, it is argued, governments are the most representative entities for the public, as they are appointed by the people, and they are responsible for the development of public policy within their territories. It therefore follows that governments must also be responsible for the setting of international public policy. The private sector and civil society cannot take the place of governments in undertaking this role.
These arguments are broadly similar to other pro-regulation/anti-regulation debates and naturally each set of arguments has its backers, with industry (in particular the giant American telecom companies Verizon and AT&T) vocal in its backing of greater deregulation, and governments (in particular those with questionable or indifferent human rights records, such as China and Russia) pushing for greater government control over the Internet.
We believe that the answer lies somewhere in the middle. We recognise the need for adoption of public interest regulation of the kind mentioned above as well as a need to ensure appropriate global interconnectivity. In these areas, state assistance is undoubtedly required. However, there are genuine concerns with overarching and all-pervasive government regulation of the Internet, in particular where such regulation affects the content and application layers of the Internet. Apart from being new to the realm of the Internet, such regulation could result in a Balkanisation or sterilisation of the Internet, the latter through adoption of the lowest common standard. Further, there are certain aspects of Internet governance, such as various standard setting mechanisms, that do not require governments to intervene in order to function successfully or be successfully implemented.
What are the problems with the proposals for amendment to the ITRs? #
There has been much agitation in the media over the last couple of months about the effect that many of the proposals put forth by member states may have on the openness of and exercise of civil liberties on the Internet. Various proposals for amendment of the ITRs are seen as a way for governments to seek control over the Internet through the means of a UN organisation. In fact, the European Parliament and American Senate have (again rightly or wrongly) expressed their misgivings with many of the proposed amendments, including on the grounds that they would destroy the present architecture of the Internet.
For instance, certain countries have proposed adoption of a new Article 5A in the ITRs (pertaining to cyber security) that would give member states the right and responsibility to provide unrestricted access to telecommunications systems ‘except in cases where such international telecommunication services are used for the purpose of interfering in the internal affairs or undermining the sovereignty, national security, territorial integrity and public safety of other States, or to divulge information of a sensitive nature’. Similar proposals also give member states the right to prevent propagation of spam and to ensure that numbering, naming, addressing and identification resources in international telecommunication networks are used ‘appropriately’.
These proposals would allow member states, including those with poor human rights records, to police the Internet and deny access/service to the general populace on the basis of broad and ill-defined terms such as ‘interfering in internal affairs’, ‘undermining national security’, etc. The scope for censorship of content is therefore increased drastically under such a regulatory system.
The proposed amendments also contain various provisions which, if applied, could lead to the decline of net neutrality principles and increase costs of service, which could particularly affect users in developing countries. For instance, provisions suggesting imposition of cost-oriented pricing could impact the scope for state subsidy of telecommunications systems, important to improve access in countries such as India. In another example, provisions allowing service providers to enter into commercial arrangements to provide differentiated quality of service could lead to service providers entering into tie-ups with content providers to privilege certain services, thereby leading to creation of an unequal marketplace. Imagine it would cost you more to view videos on Youtube, as opposed to Vimeo, purely because your service provider has entered into an arrangement with the latter to provide higher quality services for Vimeo-related Internet traffic.
But it would be short sighted to argue that none of the Internet-related proposals for the amended ITRs would fall within the ITU’s ambit and be valuable. As explained above, there are undoubtedly certain issues pertaining to public interest regulation of the Internet where it may be beneficial and necessary to have some form of regulation over telecommunication service providers. And these include both altogether new issues — such as network neutrality — and issues that have in any case been considered part of the core competence and mandate of the ITU for long — such as mandating interconnection of networks/ensuring appropriate interconnection of the physical infrastructure, which is as crucial for the Internet to operate as it is for telephony services.
What is the likely outcome of WCIT? Is this the end of the Internet as we know it? #
As delineated above, there are numerous complex issues that need to be resolved before we will reach consensus on a method of governing the Internet that is acceptable to all. The upcoming WCIT is unlikely to see any final resolution to the matter as decisions therein have to be taken by consensus (as in any international treaty – the treaty is only as strong as the number of countries that agree to abide by it). With various western countries, such as the United States and members of the European Union, threatening to walk out of the conference over any perceived ‘governmental take-over of the Internet’ it appears that this battle to determine the overarching governing structure for telecommunications systems worldwide is just beginning to warm up.