This year, at the World Conference on International Telecommunications (WCIT-12), the International Telecommunications Regulations (ITR)s will be renegotiated. The ITRs are set of regulations set by the International Telecommunications Union (ITU), a United Nations entity tasked with overseeing, well, international telecommunications standards. It has been widely rumored for some time now that the upcoming WCIT-12 will see a vote to amend the ITRs to expand their scope so as to more clearly include matters of Internet governance. An amendment of this nature would potentially create a new venue for international Internet law — one that operates very differently from existing venues such as the OECD, ICANN (and its Canadian counterpart, CIRA), the Council of Europe, the Internet Governance Forum and the various standards-making bodies such as the Internet Engineering Task Force and the World Wide Web Consortium.
In the past few months, statements of concern over the ‘impending ITU takeover of the Internet’ have steadily increased in magnitude and scope. The cries of concern over the secrecy and potential scope of the endeavour have come from industry, the technical community, civil society, and even national regulators.
This is by no means the first time the specter of an ‘Internet takeover’ has been bandied around. Also, to date, it has not been clear precisely what the scope of the ‘threat’ is. The ITU is capable of passing binding, treaty-level instruments. It also appears to prefer secretive and prohibitive processes that prevent key stakeholders from participating fully. Key ITU members have also issued public statements that may raise eyebrows for those concerned with civil liberties online (ITU Head of Corporate Strategy Division, Mr. Alexander Ntoko, for example, has expressed general hostility to the concept of online anonymity). This, in and of itself, does not bode well for the future of Internet policy if this venue gains legitimacy as a source of Internet policy.
However, given the secrecy of the process, to date it was not clear precisely what changes to the ITRs were being contemplated. Efforts to open up this secrecy are now bearing fruit, and the Internet Governance Project has released what appears to be an early WCIT-12 preparatory document (TD-64) that shows some of the proposed changes to the ITRs. The document, though somewhat dated, provides insight into the some of the proposals, which might expand the ITU’s mandate to include: anti-spam initiatives, consumer privacy protection, cybersecurity, standards of lawful access to online interactions, etc.
Some more specific provisions of potential interest include CWG/54/7.10, which would add the following provision:
55D 7.6 Suspension of services 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, outgoing, incoming or in transit, provided that it immediately notifies such action to each of the other Member States through the Secretary-General.
If ‘telecommunications service’ is expanded to include ‘the Internet’, this is reminiscent of early U.S. cybersecurity proposals to put in place an Internet ‘kill switch‘. While the United States has long ago (and rightfully) dropped this proposal, other ITU member governments have, in recent times, found the ability to ‘suspend’ Internet activity quite useful as a tool of addressing domestic political upheaval. This provision is also interesting in that it appears to conflict more or less directly with the U.N.’s own Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, who has issued an opinion that such cut-offs are likely inconsistent with the right to free expression enshrined in the Universal Declaration of Human Rights (A/HRC/17.27):
The Special Rapporteur is also concerned by the emerging trend of timed (or “justintime”) blocking to prevent users from accessing or disseminating information at key political moments, such as elections, times of social unrest, or anniversaries of politically or historically significant events. During such times, websites of opposition parties, independent media, and social networking platforms such as Twitter and Facebook are blocked, as witnessed in the context of recent protests across the Middle East and North African region. In Egypt, users were disconnected entirely from Internet access.
The document also seeks to weigh in on net neutrality by potentially exploring minimal quality of service obligations (CWG/54/3.2):
It was noted that reliance only on market forces according to competition mechanism to improve QoS offered to the users has not worked in many instances, but in the contrary, there exist agility in offering low quality services that makes the consumer more often prone to be a victim for such deteriorated services, in particular those based on VoIP. Assuring a level of QoS above a minimum set by the relevant ITU-T Recommendation shall help to a great extent to preserve users’ rights.
There are additional provisions, focused on traditional telephone exchanges, that might have somewhat dire consequences for online privacy if applied to the ‘Internet’ (CWG/54/3.34):
31B 3.6 Member States or Operating Agencies involved in a communication route – and in particular in transit nodes – shall ensure, to the greatest extent practicable, the provision, transport and forward of international calling party number delivery, calling line identification and/or origination identification, and its integrity end-to-end, in accordance with the relevant ITU-T Recommendations. Member States may provide for data privacy and data protection by authorizing the masking of information other than the country and operating agency identification codes or equivalent originating identifiers, but that masked information shall be made available to duly authorized law enforcement agencies.
Other provisions might be positive, such as proposals mandating states to ensure roaming rates are purely cost-based, not market-based (CWG/54/6.41A), proposals that would require transparency “with respect to retail and wholesale prices, costs, and quality of service” (CWG/54/6.42A) and even ‘cost-oriented pricing’ in telecommunications services (CWG/54/6.44A):
6.15 Member States shall promote cost-oriented pricing. Regulatory measures may be imposed to the extent that this cannot be achieved through market mechanisms and to the extent that such measures do not hinder competition.
As the documents are now public for the first time, more detailed substantive analyses of the proposals are sure to arise.