We now know more about what led to the impasse at the WCIT, and the scope of the fissure that it created. It is clear that nations will split 2 to 1 in favor of signing the ITR treaty. The majority of the signatories are the developing countries in Africa, Asia (including China), the Middle East, Latin America, and of course Russia. The refuseniks are primarily developed, western economies; they are concentrated in North America, Europe and Japan, although they were joined by India and some other developing countries. Though smaller in number, refuseniks account for probably two-thirds of the telecommunications and Internet economy. Politically, this is a troublesome bifurcation, although its implications for internet governance may not be all that bad. (We will blog about the long-term implications later).
What triggered the split? More is known about this, too, but in the aftermath of WCIT facts are taking a back seat to spin. This blog post asks you to discount both the happy talk coming from the ITU and the ridiculous claims from the US and its allies that the ITR revisions constituted an aggressive new push into Internet regulation by states. Below, we cut through the spin and explain how a phenomenon we will call ITU-phobia contributes to the polarization of Internet governance.
This much is clear: the real crux of the US-led objectors was not the substance of the ITRs. There are a few strident, increasingly strained attempts to find demons in the ITR language, and to come up with ever more outlandish scenarios regarding the potential for trouble in the future. But these scenarios, as we shall see, lack plausibility. In reality, rejectionism was fueled by the debate over Resolution #3 and the decision by the ITU to rely on voting rather than consensus.
Wolfgang Kleinwachter’s recent article summarizes this debate well. Members of the anti-ITR coalition complain bitterly that ITU Director-General Hamadoun Toure did not keep his promise to rely on consensus at the meeting, but instead resorted to voting on a one-country, one-vote basis. Toure did keep his promise to rely on consensus in the ITR modifications; the problem was his handling of controversial Resolution #3, “Fostering an Enabling Environment for the Internet.” It contains wording that encourages member states to use the ITU to formulate positions on Internet-related issues. It therefore provides the ITU with some kind of mandate, however tenuous, for continued discussion of the issue. That resolution could never have gained consensus, and the use of straw polls and actual votes in its development is what drove the final nail in the coffin of WCIT consensus.
But Resolution #3 is not part of the ITR treaty, and thus does not really bind any country to anything legally. Its ability to shape the future of Internet governance is minimal. All it means is that a bare majority of states in the ITU want to continue to discuss Internet governance in the ITU. This should surprise no one. To present this as a “Trojan Horse” that significantly empowers states such as Russia and China to influence the Internet free-states who do not agree with their approach is a huge exaggeration.
An inconsistent US strategy
The strong reaction engendered by a well-known, unsurprising fact (namely that Russia, China and the Arab states would like for the Internet to be governed by an intergovernmental regime), hints at a contradiction at the heart of the US position. The US statement explaining why they refused to sign the ITRs is reasonable and well-written. But if the US and its supporters really believed that the ITR revision process could be used to “take over the Internet,” or that the use of the ITU as a forum for discussing Internet matters constitutes a substantial long-term threat to the Internet’s freedom, it should have blocked or refused to participate in the process of updating the ITRs. It could have insisted, as this writer has, that the ITRs are no longer needed in a globally liberalized telecommunication industry. It could have pointed to the World Trade Organization’s Basic Telecommunications Agreement and general trade principles as a substitute framework for interconnecting and interoperating both telecommunications and Internet. There are sources who tell us that the Europeans shared the view that the ITRs were no longer needed. Thus, had the US cooperated with the Europeans 4 or 5 years ago it could have stopped the movement to revise the ITRs at the outset. The US could have taken a positive, forward-looking leadership position – advancing Internet governance based on free trade principles – rather than precipitating a divisive split.
Instead, the US declared in March 2008 that revision of the ITRs was important and necessary. It entered into the WCIT negotiations as if it were a believer and participant in the ITU regime. It worked out a fairly detailed position as to what the revision of the ITRs should and should not do. It went into the negotiations declaring that it fully intended to come out with an agreement. And through hard work, principled actions, and an impressive multistakeholder mobilization, it succeeded in keeping out of the amended ITRs virtually everything that it wanted to keep out. The word “Internet” does not appear anywhere in the amended ITRs. There is not the faintest whiff of the dreaded ETNO proposal or “sender-pays” pricing. Article 9 is unchanged. There is no remnant of any attempt to take over the Internet’s naming and numbering resources, as the CEO of ICANN publicly confirmed. The many ‘cybersecurity’ proposals have disappeared. Two new additions, 5A and 5B, make references to network security and “unsolicited bulk electronic communications.” While the US did not want these provisions in, it is impossible to make a plausible case that they could ever be used authorize a major change in Internet governance (more on this later).
And yet, this massive victory is now being construed as a failure. By the USA!
So how did the US snatch division and defeat out of the jaws of victory? In this writer’s opinion, the root of the problem lies in a paranoid view of the ITU, a view concentrated in Internet industry figures such as Google’s Vint Cerf. These critics adhere to a view of the ITU that grossly exaggerates its significance and power. I call this ITU-phobia and describe it at length below. But before understanding the pathologies of ITU phobia, one must first have a clear understanding of what the ITU really is. ITU phobia, in other words, can be recognized only after one articulates a realistic view of the ITU.
The realist view of the ITU is that it is a weak and declining intergovernmental organization (IGO). The industry on which it is based, circuit-switched telephony, is everywhere in decline. The ITU is a traditional intergovernmental institution, yet information and communication technologies and industries are driven by transnational standards, private sector organizations and businesses. Even within its own industry, the ITU was cuckolded during the 1990s by the World Trade Organization, which redefined telecommunications as trade in services and bypassed the ITU to create new global rules liberalizing the telecommunications industry.
The ITU is an organization with no enforcement powers of its own; it is entirely dependent on its member states to enforce its rules. Unlike ICANN or WIPO, which thrive and fatten on fees generated by the industries they oversee, the ITU’s financial model is in trouble. In a world of open standards and open access to information its budget depends heavily on hefty membership fees that give state and industry (sector) members privileged access to closed standards documents. Aside from that, it relies heavily on donations from states like other UN organizations, donations that can easily be withdrawn if it behaves too badly.
The ITU realist knows that ITU’s centrality as a technical standard developer has been in decline since the 1980s. It has not been in the lead on any widely adopted networking standard since the rise of the Internet. Its role in standardizing other telecommunication procedures or communication equipment has been largely displaced by smaller, more specialized private sector standards forums. As this process of attrition progresses, the level of technical expertise resident in the ITU and its subcommittees keeps shrinking. Only in international radio coordination (ITU-R) does the ITU play a significant role.
Most importantly, the ITU has a very tenuous nexus to the Internet and very few prospects of enlarging that nexus. It does not control Internet standards, routing processes, naming resources or numbering resources, and it never will. Unlike IETF, ICANN, the RIRs or Internet service providers, it has no leverage over how the Internet actually works. People who speak of an ITU takeover or major ITU threat can only do so by refusing to acknowledge this basic and irreversible fact.
Regarding process, the ITU functions pretty much like any other intergovernmental organization: it is neither uniquely good nor uniquely bad in that regard. Of course, like any UN organization it is highly bureaucratic and full of intergovernmental politics. As a formal treaty-based organization, however, it does function in a more predictable and stable way than, say, ICANN. And it did modify its processes slightly in response to public pressure during WCIT.
Realists do see a latent threat in the ITU, however. ITU realists recognize that nation-states who view the Internet as under US hegemony logically gravitate to the ITU as a counter-hegemonic vehicle for collective action. A one-state, one-vote governance regime, if it could be established over the Internet, would be a disaster for communicative freedom. But ITU realists also recognize that it is the nation-states, not the ITU per se, that is the root cause of that problem and that nation-states act in many channels, not just the ITU. They also recognize that the counter-hegemonic states gravitated around the ITU lack critical mass in the Internet economy and, because most of them are authoritarian, have little popular appeal even in their own territories. Thus, to an ITU realist the solution to the problem of intergovernmental control of the Internet is to persuade the rest of the world of the virtues of an alternative, civil society-based, non-sovereigntist distributed governance model. Realists also realize that if the alternative governance model really does promote the growth and health of communications and information industries, then countries which rely on the new modes of governance have an inbuilt competitive advantage and will play a stronger role in shaping the future of the internet than those who try to drag it back into the old intergovernmental, territorial-sovereignty regime.
Now contrast the ITU realism described above with what I call ITU-phobia. ITU phobia is a feverish, diseased way of thinking about the ITU’s role in Internet governance. It seems to be communicable, with outbreaks in Dubai spreading from the US delegation to Canada, the UK and parts of Europe.
To the phobic, the ITU constitutes a special, persistent and enormously powerful threat to the Internet and its freedom. In their view the ITU is not weak, it is very, very strong. This menace is seen (incorrectly) as a feature of “the ITU” itself, not as a function of the member states that participate in it. Nor is the menace a problem with inter-governmentalism, or governmental control in general. Apparently, only the ITU poses this danger. To the ITU phobic, the mere presence of words related to the Internet in the ITRs will inexorably lead to governments somehow gaining control of Internet content, standards, routing, and identifier resources. We are, according to those with the phobia, in constant danger of the ITU taking control of the Internet despite the fact that control of standards, identifiers and operations are already firmly in the hands of other strong, healthy and wealthy institutions. If an ITU resolution so much as contains the word ‘cybersecurity,’ for example, we must live in fear of the ITU seizing control of the entire distributed, transnational ecosystem of standards, equipment, software, services and networks that affect cybersecurity. We must fear this despite the fact that not a single case of ITU-generated control of anything relevant to computers, information security, or data networks has occurred in the last 30 years. Those stricken by ITU-phobia also labor under the belief that it is uniquely closed and exclusive in its membership.
One notable feature of ITU phobia is that it takes the alternative internet institutions off the hook. They are inherently good – good by definition – because they are not the ITU. The ITU-phobic do not care whether alternative governance institutions perform well, and they cast a blind eye on the actions of states that are part of the anti-ITU cause. If the threat to the internet comes from the ITU, and not from a world of nation-states seeking more power for themselves, one needn’t worry about such things as ICANN’s Governmental Advisory Committee, the US CyberCommand, Israeli cyberweapons, the British Cleanfeed system, data retention and graduated response in the European Union, the Wikileaks financial boycott, and so on.
We have some vivid displays of ITU-phobia on record regarding ITR sections 5A and 5B. Here is section 5A of the new ITRs: “Member States shall individually and collectively endeavour to ensure the security and robustness of international telecommunication networks in order to achieve effective use thereof and avoidance of technical harm thereto, as well as the harmonious development of international telecommunication services offered to the public.” That’s it.
Now watch ITU-phobia turn these drab words into a fearsome threat. A commentator on our blog who was in Dubai as part of the UK delegation writes: “5A needs to be read along with ITU Standard Y.2770 which makes it mandatory to implement deep packet inspection…to all ‘next generation networks’ which could be easily interpreted as the IPv6 network. As a standard it is far from mandatory. But 5A and 5B bring this much closer to make it mandatory – and you’ll notice that the language in Y.2770 is very close to the language of 5A and 5B.”
There are so many irrational leaps of logic in this statement it is hard to know where to begin. The author of that comment is implying that ITR section 5A must be read in conjunction with an ITU-T standard that he has picked arbitrarily out of the air, a standard not mentioned anywhere in the ITRs and not mentioned in any of the discussions of 5A. The section 5A does not mention the Internet, IPv6, NGNs or DPI, yet this person believes that it could be “easily interpreted” to REQUIRE the use of DPI in IPv6 networks. And when one points out this huge gap between what is actually in the ITRs and what they are contending it would do, the response is filled with dark warnings about “the power of general language” and how the evil demons at the ITU will be able to stretch whatever language is in their to suit their purposes.
The amazing thing about these statements is not just the stretched interpretation, but the fact that they attribute such unbelievable power to the ITU. Apparently, the only thing standing between the ITU and total world domination is the presence or absence of a few indirect references to spam or security in the ITRs. Apparently, the Geneva Secretariat, which has no enforcement or monitoring powers, will send demand notices to UK network operators ordering them to install specific pieces of equipment or functionalities, and if they don’t the British police will break into their facilities waving copies of the ITRs to enforce compliance. The only thing missing from this fantasy is the idea that the Chinese and Russians will be the ones defining the DPI signatures for UK networks and listening in to the reports generated by alerts. Does this sound plausible to you?
I engaged in a few Twitter exchanges with an ITU-phobic, who asserted that section 5B of the revised ITRs authorized surveillance of all internet messages to examine their content. When it was pointed out to her that 5B did not contain the words “Internet,” “surveillance” or “content,” but merely a vague recommendation that “member States should endeavour to take necessary measures to prevent the propagation of unsolicited bulk electronic communications…” she was unmoved. She was also unmoved by the fact that states already can and do engage in surveillance, for practically any reason. The threat of state surveillance was transferred to the ITU. She claimed that because 5B did not specifically prohibit such surveillance, therefore it would happen. So, unless the ITRs explicitly prohibit the spread of flesh-eating zombies, then signing on just might result in the planet’s takeover by flesh-eating zombies.
In sum, ITU phobics seem to substitute the word “ITU” for each and every threat the Internet faces, and believe that if they can keep the ITU away from the Internet it will be free. They therefore look forward to continuing this paranoid dialogue next year, in the World Telecommunication Policy Forum (WTPF). Unless ITU phobia is treated, we are in for several more years of needless paranoia and conflict.
Let’s keep our eye on the ball. Internet freedom requires the construction of effective new, open transnational governance institutions and globally applicable legal principles that regulate and limit the power of states and private sector actors to abuse users. It requires liberalized communication industries and free trade in information services; multinational, multistakeholder pressure against censorship and surveillance. Those are tall orders. Obsessing over the ITU isn’t going to get us there.