ARTICLE 19 encourages not to change ITRs and leave internet free
In December 2012 the World Conference on International Communications will be taking place in Dubai with a view to reconsider the International Telecommunications Regulations (ITRs) for the first time since 1988 under the aegis of the International Telecommunications Union. One of the key questions that will be examined at the Conference is whether or not the Internet should fall within the scope of the ITRs.
Sunday, 21 October 2012, by HRH London, based on Article 19 legal analysis.
The International Telecommunication Union (ITU) is the specialised agency of the United Nations which is responsible for information and communication technologies. The agency has traditionally been tasked with standardisation and spectrum management.
Since 1992, its main sectors of activities have been known to include Telecommunication Standardisation (ITU-T), Radiocommunication (ITU-R) and Telecommunication Development (ITU-D).
With the development of new technologies and ways of communicating, the ITU has shifted its focus, now presenting itself as the ‘United Nations specialised agency for information communication technologies (ICTs)’.
Potential threat to multi-stakeholder internet governance
ARTICLE 19 explains that the ITU has traditionally operated under a very closed-up, top-down decision-making process.
As the basic texts of the ITU, and the ITRs in particular, were adopted in the pre-digital age, civil society groups are concerned whether or not ‘ICTs’ or the Internet should fall within the scope of the ITRs, and what the role of the ITU and governments in this new ‘ecosystem’ might be.
This has led to fears that the ITR review process might be used to fundamentally change the multi-stakeholder model which has been the hallmark of Internet governance so far and that it may have a detrimental impact on the open Internet, freedom of expression and access to information.
At the same time, ARTICLE 19 says, it is important not to forget that this process is also very much about the relationship between telecom operators and information service providers and the economics of interconnections. All these issues will be at the heart of WCIT 2012, where the 193 member states of the ITU will discuss various proposals to adapt the ITRs to the new ICT environment.
ARTICLE 19's analysis and recommendations
Ahead of December‘s conference in Dubai, ARTICLE 19 has prepaired a legal analysis of the proposed changes to ITRs.
The analysis focuses on four key issues. First, the question of definitions and scope of the ITRs is reviewed. Second, proposals that would give greater control to the ITU over content-related aspects of Internet policy are examined. Third, the proposal of the European Telecoms Network Operators (ETNO) on new IP interconnection pricing scheme and its impact on net neutrality is reviewed. Fourth, a number of factors mitigating fears that the ITU might be overtaking the Internet are highlighted.
Recommendations on how these issues should be addressed are included throughout the analysis.
Definitions: reference to Internet to be avoided
The key issue is whether or not the revised ITRs should include a definition or explicit reference to ‘ICTs’ or the Internet, which are currently missing.
Broadly speaking, three types of proposals have been put forward: (1) maintain the status quo; (2) replace ‘telecommunication’ with ‘ICTs’ but maintain the current definition of telecommunication; (3) include a broad definition of ‘ICTs’ that would either expressly or impliedly include the Internet.
ARTICLE 19 strongly opposes the inclusion of the Internet in the definitions of or indeed throughout the ITRs for two main reasons:
– Firstly, the organisation believes that this would unduly broaden the mandate of the ITU, which is illequipped to deal with broader Internet-policy and fundamental rights issues.
– Secondly, it seems undesirable from an economic perspective to bring the Internet – and hence information services – within the ambit of the ITRs since this, in practice, would mean greater regulation of those services in relation to interconnection arrangements.
Similarly, ARTICLE 19 urges member states to resist the introduction of the term 'ICTs' in the ITRs. In our view, ‘ICTs’ is a broad term, which clearly includes the Internet. The inclusion of the terms ‘data processing’, ‘data transmission’, ‘Internet traffic’, ‘Internet protocol’, 'IP interconnection' or words to that effect should also be avoided in the ITRs.
Content-related control has no place in the ITRs
Several proposals have been made to add references to 'spam', 'cyber-crime', 'cyber-security', 'data preservation, retention, protection', 'protection of personal information, privacy and data', 'information and network security' and 'fraud' to Article 5A and Article 5B to deal with 'confidence and security of telecommunications/ICTs'.
ARTICLE 19 opposes the inclusion of such terms and related proposals, which would legitimise at the international level both greater control by Member States over content on the Internet and potentially sweeping surveillance practices.
The NGO recognises, however, that the practical impact of some of these proposals may be limited to the extent that their wording is generic and confined to encouraging cooperation - which may already be existing - in the field of cyber-security and related areas.
Nonetheless, ARTICLE 19 remains of the view that these issues, insofar as they are content-related - have no place in the ITRs, which should remain confined to high level principles on technical standards relating to the infrastructure on which the Internet runs.
ETNO proposal would undermine net neutrality
ARTICLE 19 considers that the most serious threat to the very functioning of the Internet and the free flow of information comes from the proposals of the European Telecommunications Network Operators association (ETNO). They believe that if these proposals were accepted, the net neutrality principle would be seriously undermined.
The ETNO proposal therefore seeks to do three things:
(1) introduce a new pricing scheme under which sending networks are required to pay to interconnect with incumbent telcos; in the same vein, the ETNO proposal refers to 'fair compensation for carried traffic';
(2) push for new interconnection models providing for end-to-end Quality of Service (QoS) delivery to information service at a premium; and
(3) ensure that Member States will allow all of the above to be negotiated between telcos and information services rather than being imposed by governments.
ARTICLE 19 finds the ETNO proposal problematic for several reasons:
– The idea that QoS will be guaranteed at a premium (or differentiated QoS) is at odds with the net neutrality principle which essentially posits that there should be no discrimination in the treatment of Internet traffic, based on the device, content, author, or the origin and/or destination of the content, service or application.
– The ‘sending party networks pay’ proposal is essentially an attempt to apply the international telephone regime to IP interconnections, something which would be both overly expensive and out of sync with the settlement-free peering interconnection system that has allowed the Internet to flourish.
– Other possible repercussions of the ‘sending networks pay’ proposal could include reduced access to the Internet in less developed countries as information service providers may decide that there is no business case for routing traffic to certain countries.
– Finally, the ETNO proposal would run the risk of covering information service providers under the term ‘operating agencies’ as opposed to ‘recognised operating agencies’, which has traditionally covered telecommunication service providers licensed by government at the infrastructure layer. In other words, this would seemingly bring information service providers under the more tightly regulated model of traditional telecommunication services, including licensing.
The analysis concludes that whilst the ITU might not be overtaking the Internet just yet, some of the proposals that have been made give no ground for complacency on the part of civil society, governments and businesses who want to preserve our Internet freedoms.
ARTICLE 19 underlines that the importance of both the ITU and the ITRs should not be overstated for a number of reasons:
(1) First of all, it seems doubtful that a rather technical treaty about telecommunications - which was relatively unknown until now - would have a significant impact on Internet policy in ITU Member States.
(2) Secondly, the ITU has a mixed record on expanding its mandate in respect of ICTs, even though the potential seriousness of an expanded mandate should not be dismissed.
(3) Thirdly, the ITU does not have enforcement powers.
(4) Fourthly, the ITRs would have to be read consistently with Member States’ other treaty obligations in any event.
(5) Fifthly, under international law, States may make reservations to clauses which they find objectionable; and finally, Member States could always denounce or withdraw from the ITU Convention, and hence the ITRs.
HRH London, based on Article 19 legal analysis.