Threat analysis of WCIT part 2: Telecommunications vs. Internet

To understand what is really happening at the International Telecommunication Union’s WCIT, one must return to an old question: is the Internet “telecommunications” or is it something else? That seemingly obscure definitional question has been at the center of communication and information policy since the mid-1960s and it – not a “UN takeover of the Internet” – should be the point of departure for understanding WCIT.

More than 50 years ago, the U.S. Federal Communications Commission decided that basic telecommunications (which in the 1960s-70s was dominated by the AT&T monopoly) needed to be strictly regulated, while “enhanced” services (i.e., the emerging networked computer services industry that relied on the public telephone network) needed to be opened up and deregulated. To facilitate this policy goal, the FCC created a regulatory distinction between “basic” and “enhanced” services. Telecommunication was straight transmission of signals while “enhanced service” added some “information processing” to telecommunications transmission.

At that time traditional telecommunication (layers 1 physical and 2 data link of the OSI model of data communications), was provided by highly restrictive, protected and usually state-owned monopolies known as PTTs (postal, telephone and telegraph monopolies). By placing information services in a separate regulatory/legal category, information service providers could (when other countries agreed) ride unmolested on that telecommunications infrastructure, without being subject to all the entry restrictions and gatekeeping regulations of the telephone companies and/or their governments. During the 1980s and 1990s, many countries were more than happy to open up that tiny “information services” market a bit in exchange for continued protection of their gigantic voice telephony markets from foreign competition.

The separation of “telecommunications” and “information services” paved the way for an open, economically and politically free Internet. Internet protocol was basically software, and thus could be considered an “information processing” or “enhanced” service. And so when the Internet went viral in the early 1990s, it spread like rhizomes into the global path cleared for it by the international deregulation of information services.

From the 1980s on, layer 1-2 telecommunications services were liberalized as well. New competitors were allowed to enter the market worldwide. The public infrastructure became more diverse. State-owned PTTs were privatized. Many prices and features were deregulated. Mobile networks became substitutes for fixed networks. As the industry became more diverse and competitive, maintaining a clear, simple distinction between telecommunications and information services became complicated. The combination of Moore’s law and expanding bandwidth allowed the application layer to provide services “over the top” that were substitutes for the offerings of traditional telecommunications and broadcasting networks, such as Internet telephony (VoIP), video streaming, or instant messaging. Instead of a single monopoly platform hosting thousands of services, we got multiple telecom platforms with multiple services. It was difficult if not impossible to keep the service providers out of telecom platforms – and vice-versa.

The ensuing debate between those favoring a free market, contractually-based, deregulated Internet model and those who wanted regulators to preserve the Internet of the 1990s by treating ISPs as regulated common carriers turned – once again – on the telecommunications-information distinction. The distinction was reaffirmed in 2005, when the U.S. Supreme Court upheld the Powell FCC’s classification of cable modem Internet as an “information service.” Net neutrality advocates in the U.S. hated that decision, because classifying ISPs as “information services” instead of “telecommunications” released them from common carrier-style regulation. But it did keep network operators exempt from many potentially debilitating forms of political and regulatory intervention, especially around interconnection arrangements.

So what does all this have to do with the WCIT and the ITRs? It is this: the ITU’s attempt to update the International Telecommunication Regulations (ITRs) is a new attempt to negotiate the boundaries between telecommunications and information services. Just as in the Brand X case, if certain things are defined as telecommunication they can be subject to certain (in this case, weak) forms of control under international regulations designed to support traditional telecommunications. The targets of most ITR amendments are the interconnection arrangements among ISPs. Because it comes from the ITU, this effort is driven in large part by the interests of foreign telecommunication incumbents and by developing country administrations who feel bypassed or marginalized by the burgeoning Internet economy at layer 4 and above. In that respect, it is somewhat reactionary and threatening.

But it would be wrong, and a bit silly, to talk about the ITU “taking over” the Internet. It is, rather, the Internet that is taking over the world of telecommunications, setting more and more of the terms and conditions under which the ITU and its operating entities function. The Internet-based services’ growth in revenue has far outstripped that of the telecommunication operators. A fabulous new economy has emerged on top of the telecommunications platform.

The issue is primarily the economics of interconnection; i.e., the revenue sharing (or lack thereof) involved in taking and sending traffic. It is not in the slightest about taking over the IETF, ICANN or IP address registration. WCIT is also a clash between a transnational regime based largely on privately negotiated contracts and the permissionless service provision created by a globally interoperable, distance-insensitive Internet protocol, and the nation-state system of hierarchical regulation and bordered gatekeeping which was built up around telephone companies. The most important battleground in the WCIT is not censorship or security, but interconnection and the flows of funds among carriers attendant upon interconnection agreements. If you want national regulatory authorities to have more collective control over ISPs generally, and American ISPs and Internet services specifically, you should support the WCIT effort.

The ITU and its members are, as usual, in reaction mode, a step behind. The current ITRs were defined in 1988, before the public internet as we know it even existed. They have numerous archaic references. They still talk about telex, for example. If you think there should be ITRs at all, it is absurd not to update them. But that raises an interesting question that no one else seems to be asking: should there be ITRs at all? Why do we need them?

The existence of treaty-based telecommunication regulations administered by an intergovernmental organization made sense in a world where telecommunications were provided by state-owned monopolies. Negotiating telecommunication interconnection across national authorities was very much like negotiating a mutual passport/visa recognition agreement. Also, many governments had their own incompatible technical standards and a single, national telecommunication standards body as well, so having an intergovernmental organization around to negotiate international compatibility made sense.

The world of the Internet is very different. It is a world of liberalized trade in services, of transnational services and corporation, of dozens if not hundreds of private-sector voluntary technical standards forums, a world of multiple, competing private network operating entities, most of them no longer state-owned, and millions of Internet-based services riding on and crossing over those multiple platforms. So why are we treating governance of this sector as something that should be happening through treaty negotiations among governments?

Why do we need a special set of international telecom regulations at all? Every country has its own national regulations regarding interconnection, privacy, antitrust, consumer protection, and so on; compatibility across platforms and services is much easier technically than it was in 1930 and tends to get worked out in the market. International telecommunications is a form of trade in services, and the WTO agreements already provide a sufficient regulatory basis for foreign or multinational providers to enter national markets with different regulatory regimes, and to offer transnational services.

Another missing fact from the debate is exactly how weak the ITRs and the ITU are. If you don’t follow a duly passed FCC regulation, you can get fined or you can get your license pulled and put out of business. The ITU doesn’t have any police. The ITRs are just a bunch of verbal commitments from “member states” that they will agree to do something. If the member state doesn’t agree, or chooses not to enforce what it agreed to, the words are meaningless.

I hope this re-framing of the WCIT helps observers to understand better what the general context is. In the next post, we look at the specific language of proposed ITR revisions and explain the degree to which they do or do not create a threat to Internet freedom.


27 comments

  1. HaroldFeld

    Milton.
     
    I think you underestimate the impact the ITU-Rs potentially have on developing international norms of communications and on future negotiations among member states. This is not a “how many divisions does the Pope have” issue. Consider, for example, that it is not at present considered a violation of international law to route around government censorship blocks, and that jurisdictions that care about such thing (such as the International Criminal Court or the EU Court on human Rights) are much more likely to find an emerging norm with regard to the free flow of information. Adoption of proposed ITU-R Mod 9, which recognizes the right of member states to control traffic routing, would directly contradict the emerging international norm on freedom of information flows.
     
    To give his practical meaning, the U.S. State Department currently funds projects to circumvent censorship online. This violates national law of the target nation, but is justifiable internationally as in conformance with the right of free flow of information. If the ITU-R Mod 9 were adopted, the current state department projects would be in direct contravention of our treaty obligations. That is a significant point for state actors and non-state actors even in the absence of any direct *ITU* enforcement mechanism.
     
    Second example: The ITU-R will consider whether other bi-lateral or multilateral agreements can supercede ITU Regulations adopted at WCIT. If the ITU-R is coequal with other treaty obligations, it makes negotiations of multi-lateral agreements (such as the TPP) more complicated. Two countries may agree to ignore an ITU-R regulation, but will a dozen? If nothing else, it will become a sticking point in these multilateral negotiations.
     
    There are other examples on can provide. Certainly you are right that the current panic over the ITU descending with black helicopters to carry off the rootservers and force every registrar to pay a $5 name tax is overblown. But it would not do to underestimate the long term impact of the  proposed modifiactions either.

    • Milton Mueller

      Harold:
      Given my views on freedom of information, if I thought the WCIT had the slightest chance of becoming a major push for Internet censorship, I would be screaming louder than Vint Cerf and former Ambassador Gross combined. But I have read TD-64 and the proposed modifications, and the idea that the WCIT is fundamentally about censorship is a scare story with little foundation.

      You say, “it is not at present considered a violation of international law to route around government censorship blocks.” This is factually incorrect. Have you read the existing ITU Constitution? Here is Article 34, section 2:

      “Member States also reserve the right to cut off, in accordance with their national law, any other private telecommunications which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency.”

      Have you read Article 35?

      “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.” Sounds like the old kill switch, eh?

      The U.S. is a party to that treaty. Nothing WCIT does or doesn’t do could make those provisions any worse than they are now, from an international free flow of information perspective. Yet to what extent does the existence of those provisions affect U.S. Internet policy and practice? Not at all, as far as I can tell. Moreover, any provision of the new ITRs that would severely restrict the ability of the U.S. and other supporters of an open, liberal international communication regime from doing what they wanted to do regarding censorship circumvention simply wouldn’t be ratified in those countries. The U.S. and others would take a reservation. Or are you seriously arguing that the world’s liberal democracies are going to suddenly start cooperating with the Chinese Communist Party’s information policy because of a vote in an ITU meeting?

      You have to look at what is actually in the ITRs and what the actual proposals for change are. As the blog post said, the real issue here is the relevance and perhaps even the existence of a set of international “regulations” focused on telecommunications in a liberalized, Internet world. Insofar as the ITU will succeed in asserting a role for itself over some aspects of the Internet, it will do so by getting governments to agree to regulate internet interconnection arrangements and the flow of funds associated with it. Please concentrate your formidable analytical powers on that issue, something you are well-equipped for, and stop looking for UN armies installing Chinese and Russian censors under your bed.

    • Milton Mueller

       @HaroldFeld Harold: Given my views on freedom of information, if I thought the WCIT had the slightest chance of becoming a major push for Internet censorship, I would be screaming louder than Vint Cerf and former Ambassador Gross combined. But I have read TD-64 and the proposed modifications, and the idea that the WCIT is fundamentally about censorship is a scare story with little foundation.
       
      You say, “it is not at present considered a violation of international law to route around government censorship blocks.” This is factually incorrect. Have you read the <strong>existing</strong> ITU Constitution? Here is Article 34, section 2:
       
      “Member States also reserve the right to cut off, in accordance with their national law, any other private telecommunications which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency.”
       
      Have you read Article 35?
       
      “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.” Sounds like the old kill switch, eh?
       
      The U.S. is a party to that treaty. Nothing WCIT does or doesn’t do could make those provisions any worse than they are now, from an international free flow of information perspective. Yet to what extent does the existence of those provisions affect U.S. Internet policy and practice? Not at all, as far as I can tell. Moreover, any provision of the new ITRs that would severely restrict the ability of the U.S. and other supporters of an open, liberal international communication regime from doing what they wanted to do regarding censorship circumvention simply wouldn’t be ratified in those countries. The U.S. and others would take a reservation. Or are you seriously arguing that the world’s liberal democracies are going to suddenly start cooperating with the Chinese Communist Party’s information policy because of a vote in an ITU meeting?
       
      You have to look at what is actually in the ITRs and what the actual proposals for change are. As the blog post said, the real issue here is the relevance and perhaps even the existence of a set of international “regulations” focused on telecommunications in a liberalized, Internet world.
       
      Insofar as the ITU will succeed in asserting a role for itself over some aspects of the Internet, it will do so by getting governments to agree to regulate internet interconnection arrangements and the flow of funds associated with it. Please concentrate your formidable analytical powers on that issue, something you are well-equipped for, and stop looking for UN armies installing Chinese and Russian censors under your bed.

      • HaroldFeld

         @Milton Mueller This is getting sufficiently complicated that I will move it over to my blog for a more detailed response. I will point out, however, that the critical difference between what is proposed and what already exists is that the current ITU jurisdiction does not extend to the free flow of information over the Internet.
         
        I agree that the ITU is not going to sweep in and scoop up ICANN, vote the .il cc:TLD out of the root, or otherwise do anything as dramatic as some fear. But I believe you are underweighting the potential overall impact on free expression as well as the concerns wrt international settlement agreements. International agreements influence each other and the development of international norms is complicated, and civil society needs to engage. Too often, civil society has become engaged too late, because apparently unrelated precursor events and agreements laid the foundation for subsequent bad outcomes.

        • Milton Mueller

           @HaroldFeld YOU are telling ME that “civil society needs to engage?” We are engaged, and have been consistently for years, not just when some US companies provide funding for it. And how on earth can you believe that I am u”nderweighting the concerns with respect to international settlement agreements” when that is precisely what I am asking everyone to focus on (as opposed to the bogus concerns about “extending ITU jurisdiction to the free flow of information over the Internet.” I am really having trouble making sense of your responses.

        • AnonyOdinn

           @Milton Mueller << Milton needs to listen to Harold Feld. End of story.

    • Milton Mueller

       @AdamPeake Adam, the ETNO proposal is about interconnection and funding flows, which is exactly what I’ve been telling people we need to pay attention to. And note that it comes not from Russian and Chinese demons, but from European telecom incumbents.

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