ITU and Internet Regulations: a fine mess

A few weeks ago, we published a post examining what to expect from the ITU WCIT conference in Dubai, which was set up to re-write the ITRs (International Telecoms Regulations) for the first time since 1988. We foresaw quite a lot of trouble, especially around the ITU's proposed new role of regulating the Internet, in terms of both governance and business models.

If anything, the final outcome was even more dramatic than we expected. After two weeks of mostly plodding bureaucracy and behind-closed-doors horsetrading, the final result was an almighty row, a lot of uncertainty and ill-feeling - and perhaps a reduction in the ITU's credibility. [Ed. We'll be looking at market issues at the Silicon Valley Brainstorm, 19-20 March, San Francisco, and also at the EMEA Brainstorm in London, 5-6 June, and welcome your comments in the meantime.]

Despite the intention by the ITU Secretary General to avoid divisive votes and find "consensus", in the end the outcome was decided by a numerical majority of countries supporting the new ITRs, and the distinct possibility of the globe's telecoms regulations splitting (roughly) down authoritarian/libertarian lines into two domains.

Of the 144 states present and eligible to vote at the event in Dubai, 89 countries signed up at the time for the revised ITRs (final version here) - primarily developing-world nations from Africa, Asia, Latin America & Arabia. But 55 states did not, mostly developed economies from European, North America and the Pacific Rim, plus a few extras like India, Kenya and Chile. Another 50-odd countries either were not present, or couldn't vote for technical reasons such as unpaid membership fees. While some signatories may not ratify the signed agreements in their parliaments, and some others may decide to sign up later after more consideration, it is clear that "consensus" is certainly not the outcome.

Represented graphically, the OECD+extras vs. Asia & Africa picture becomes more clear: http://www.ipv.sx/wcit/

The US and other countries stuck to their original stance that the ITU must not attempt to regulate the Internet. Although a lot of the proposals were watered-down or cut out entirely, the final document included a non-binding "resolution" about the Internet, which was essentially the core sticking point. Although worded vaguely, it signalled ITU's intent to continue trying to become involved with the Internet domain, contrary to the Secretary General's comments at the beginning of the event. We were a little surprised by the sheer intransigence of delegates on this issue (the resolution seems fairly "harmless" to us at first sight), but then we're business people not diplomatic and political analysts, and we can understand the desire of the US and its peers to avoid re-hashing the whole debate at a later event.

When we singled out Russia and China as the key potential "protagonists" vs. OECD countries in our earlier post, we were mostly-right, although China was rather less vociferous than the Russians, perhaps because it already exerts a lot of control over its domestic Internet market. Interestingly, many of the Arab and African states also followed suit, with Internet governance being particularly high on the agendas of the Gulf countries. The Iranian delegate was a frequent and (perhaps unsurprisingly) antagonistic speaker, while the UAE (as host country, and also the nationality of the chair) well-represented and forthright in the plenary discussions too.

When looking at the final voting, the battle lines were less-clear than we might have expected. A lot of countries perhaps looked beyond the Internet issue to focus on other ITR topics directly affecting them, such as access to fibre for landlocked countries and small islands, or even just declarations of telecoms as a human right. South Korea has previously voted against Net Neutrality domestically, and supported the ITRs, while Belarus (a very authoritarian state) has not supported them for some reason. India, Chile, Peru, Israel and the Phillippines were against the ITRs, while Singapore and Mexico were in favour.

When we wrote "A lot of important - possibly world-changing - detail and nuance is couched in vague and verbose diplomatic phraseology" we hadn't realised just how correct we were. Much of the webcasts of the plenary sessions focused on minuscule and often tedious semantic detail ("should" vs. "shall", for example, or qualifying rules with "endeavour to") or even punctuation. On one occasion, two equally-ungrammatical suggestions for changing the wording cancelled each other out, with the resulting sentence actually making sense despite the worst efforts of the two countries involved. For those unaccustomed to watching standards-type work, the spectacle of hundreds of politicised officials trying to group-edit a telecoms legal document line-by-line, via interpreters and hand-held signalling paddles, appeared bizarre and, mostly, deathly boring.

But then, after hours spent deliberating vocabulary, the WCIT event would suddenly leap over (i.e. ignore) major contentious issues or leap to unexpected conclusions and add in (or strike out) large swathes of important text. Much of the so-called "consensus" was simple: focus on the irrelevant detail, and forget about the herd of elephants stampeding through the room. Another tactic was to use phrasing so obviously vague, that it was clearly hoping to hide "a multitude of sins", and perhaps leave open avenues for legal interpretation aligning with the more disagreeable proposals at a later date. As with any event of this nature, it was also clear that a lot was going on "off-camera" in frequent meetings over "lunch" and "coffee".

However, the tactic of dodging the key issues eventually caught up with the chair and organisers - the last 48 hours were fraught, fractious and arguably ended in humiliating failure. Rather than reaching consensus, a sizeable number of countries refused to sign the final document, despite various of the more "aggressive" elements being watered-down significantly.

The pivotal non-vote

The most polarising moment was at the end of the penultimate day's discussions (actually well into the night, around 2am), when the Chairman of the event "took the temperature of the room" through a show of hands, about the inclusion of a resolution about the Internet. Resolutions are basically appendices to the treaty, rather than the being in the main text, and are non-binding. The article in question included some fairly vague and woolly comments about ITU member states "fostering growth of the Internet". (Full title: "To Foster an Enabling Environment for the Greater Growth of the Internet").

However, this was still hugely contentious, as the ITU Secretary General had previously promised to avoid any matters of Internet Governance, and also to avoid "votes". In some ways, Toure had been cleverly diplomatic, carving out the contentious Internet texts from the main treaty into a fairly-weak annex, hoping that this would mediate between the two groups of protagonists. Possibly it might have succeeded - but the confusing "vote that wasn't a vote" route for the event's chairman to adopt this approach unilaterally, was done very clumsily and right at the end of a long evening. A second attempt the following day to "take the temperature" again as an unofficial form of voting was shouted down. From an external point of view, this "non-vote" vote fiasco undermined the credibility of the proceedings, and almost certainly hardened opinions among some delegates who felt they were being "steam-rollered" and that there were "hidden agendas" at play. A forensic analysis of the resolution text does little to assuage these doubts.

One of the things that we didn't quite foresee was the level of public scrutiny that was placed on the WCIT process. Twitter was ablaze with real-time commentary of the video feeds from the plenary sessions, while dozens of blogs and news outlets covered proceedings in considerable detail each night. Organisations such as WCITleaks.org tried to offer insight into the closed-door "working groups", while lawyers, analysts and lobbyists of all colours scrutinised every move and tried to get the "word on the street" via onsite contacts. While online views were (unsurprisingly) open-Internet centric, there were others who were lobbying against perceived US hegemony over the Internet.

In our view, the openness and public debate - even if some was shrill and arguably scaremongering - was perhaps the most encouraging aspect of the whole saga. It is shame, however, that additional input from what the ITU calls "civil society" (ie non-governmental bodies, individuals and companies) did not feature more fully in the upfront discussions before the event took place.

The key debates

We highlighted four areas in our original "warm-up" post:

  • 1. Proposals to move international IP / Internet interconnect towards a contractual basis, with the option for QoS and new charging mechanisms, potentially on a "sender-pays" basis, stemming from the proposals from ETNO.
  • 2. Proposals to allow governments to control and secure (or "monitor and censor", from another perspective) Internet traffic, especially for "cybersecurity" but also for management of spam - and perhaps pirated content.
  • 3. Examination of mobile roaming regimes - and, potentially, the instigation of international pricing controls and regulation
  • 4. A general extension of ITU's remit from telecoms to ICT (information & communication technologies)

All of these were indeed points of significant contention.

The ETNO proposals for a sender-pays model for the Internet appear to have been one of the clear "losers" in the whole process, with most of what it suggested being excised from the final ITRs. While the final Internet resolution has some general references to network quality and (implicitly) business models, the original and quite specific concept has been rejected. As stated before, we at Telco 2.0 welcome new approaches to data and Internet charging models, but we were unconvinced that the ETNO proposals were well thought-through, nor that the ITU ITRs was the right venue to pursue them.

However, we notice that Neelie Kroes, the EU Commissioner concerned with telecoms and the "digital Europe" landscape, still appears to be receptive to alternative business models, despite the European Parliament recently backing the concept of Net Neutrality.
The cybersecurity and anti-spam issues were murkier, and it became rather difficult to unpick exactly what the new ITRs cover and what is excluded. While it is made clear that "content" is excluded, it becomes difficult to assess how to describe certain forms of marketing if not as content. The US objected on the grounds of freedom of expression, fearing that "it inevitably opens the door to regulation of other forms of content, including political and cultural speech". On security, the objections were more around the vagueness of the terminology and the concern that the rules could be interpreted in a fashion that was onerous but of little real value to network safety.

The roaming provision sounds bland but could help drive down international telecoms costs, depending upon how national or regional bodies interpret and act upon the new rule: "endeavour to promote competition in the provision of international roaming services and are encouraged to develop policies that foster competitive roaming prices for the benefit of end users". That may mean that the type of scheme Europe is proposing (de-coupling users' domestic MNO from a separate roaming contract) may become a broader trend.

The term "ICT" was removed from the main treaty text for being too vague (and including a range of companies completely distinct from telecoms, such as the whole IT and Internet industry), but appeared in some of the appendix resolutions such as those dealing with small islands and landlocked countries.

In addition, a few other "hot potatoes" also captured a lot of attention:

  • Internet "governance" - specifically, who gets to control things like Internet names and domains, and whether the UN should prohibit one country from stopping another from having Internet access. This was a "red line" for the US, which both invented the Internet, and essentially controls it through various bodies like ICANN. A sub-theme here was around whether governments get the last say in (global) Internet rulemaking, or whether the model is a "multi-stakeholder" one. Expect this to rear its head again at upcoming policy and Internet governance events in 2013.
  • Whether access to communications services should be considered a "human right", and whether that should be included in the preamble text of the ITRs. This led to interminable wrangling which to us seemed mere window-dressing - the ITU seemed to think naively that invoking human rights would placate the world's (Internet-friendly) media, while in fact in just irritated countries that found the wording either objectionable or more appropriate for the main UN, rather than one of its agencies.
  • A seemingly arcane distinction about whether the ITRs apply to "operating agencies" or "recognised operating agencies", or in later versions "authorised operating agencies" was pivotally important. Essentially, this translates into a discussion of whether the rules (which include stuff like interconnect mechanisms) apply just to telcos or to a broader set of companies such as Internet firms, as well as government and corporate networks. While obviously another attempt aimed at trying to entangle Google and others in the ITU's remit, poor wording also meant that the original proposals also effectively meant international networks run by corporations, or even bodies like NATO or Interpol, might be subjected to the same rules.
  • Whether the ITRs should explicitly include reference to combating spam - which seems a worthy goal, but again relates to the Internet - and the need to peer into traffic to determine what is unwanted bulk traffic. It also raises numerous grey areas, for example around legitimate marketing or even charity requests from friends. (Or, seasonally enough, electronic Xmas cards).

In addition, there were some other less contentious rules and resolutions, such as provisions for helping small islands, landlocked countries and other developing economies get better access to international fibre, and a statement of intent to work on a single unified global emergency number.

Conclusions

The first thing to note is that nothing substantive is really likely to happen until 2015 anyway, which is when the new ITRs take effect. Before that point, they also need to be ratified by the various signatory states - something that is perhaps not always going to be straightforward, especially in open and democratic countries with loud "open Internet" lobbies, or those with upcoming elections for which this might be a policy differentiator for challenger parties. In any case, ITU doesn't have an enforcement role, so any actions need to be devolved to regional or national bodies.

The second thing to note is that the conference was about international telecoms regulation. Countries like China and UAE already filter their domestic Internet access, and that won't be changed by the lack of an ITU rule sanctioning it "officially". Even in the UK, the Prime Minister is pushing forward proposals for a national "opt-in" approach to adult content, blocking access by default in order to protect children from viewing undesirable material.

There is also a valid question about how any of the rules or recommendations actually get implemented or enforced.

The ITU has been desperately trying to downplay the collapse of the talks. Its pressured spokespeople - already working overtime to cope with the unanticipated deluge of attention - have tried to variously claim either outright success or even irrelevance. (Techweek quoted one as saying ""ITU has no international enforcement mechanism. It is more a gentlemen's agreement"). Conversely, others have been spinning that the resolution is a Trojan Horse.

In the final analysis, our view is that the US and Europe (mostly) won the day. Even if the ITRs are enacted in their current form, much of the more (to them) objectionable proposals were rejected. That makes it less easy to see why they voted down the overall package, especially as the offending appendix is so weak. But for the US and most other OECD countries, the resolution on Internet involvement means that they will have to continue fighting this battle in future. The ITU "Internet or not" circus will carry on - in May 2013, for example, there is another event called the World Telecommunication/ICT Policy Forum, while the next Internet Governance Forum is in Bali in November next year.

The US representative to WCIT perhaps best summed up the event with this dismissal: "A bad agreement that does nobody any favours and makes nobody happy".