When I stopped monitoring the WCIT process around 5:30 pm (CET) December 13, it appeared that the delegations were attempting to finalize something very close to a consensus document. The almost-final draft of the ITRs that I reviewed at that time did not mention the Internet by name at all – a victory for Internet defenders. The all-important Article 9, under which most international Internet interconnections are made, had not been significantly altered. There was no language about cybersecurity. There may have been a few subtleties here or there that were not perfect, but on the whole this was a set of ITRs that could have been passed.
The only downside was a plenary resolution entitled “To foster an enabling environment for the greater growth of the Internet.” This resolution, which (contrary to some inaccurate reporting) was not part of the ITR treaty and thus not a legally binding outcome, was a sop to the states that want the ITU to have a foothold in Internet governance. It reiterated some of the more statist aspects of the WSIS Tunis Agenda and resolved that the ITU SG should:
…continue to take the necessary steps for ITU to play an active and constructive role in the multi-stakeholder model of the Internet as expressed in § 35 of the Tunis Agenda;
…support the participation of Member States and all other stakeholders, as applicable, in the activities of the ITU in this regard.
While western delegations opposed this resolution and there were some legitimate concerns about the process by which it was or was not passed, it could be seen as a pretty clever, diplomatic way of resolving the basic conflict afflicting WCIT: keep the pro-ITU states happy with some minor concessions related to the ITU role in Internet governance, but couch it in vague terms about “fostering an enabling environment” and put it all in a nonbinding plenary resolution where it can’t do any real damage. It looked like the final outcome would rest on that bargain.
When I returned from a late dinner around 11:00 pm, however, I was greeted by several hundred tweets and dozens of news reports that the WCIT negotiations had “collapsed.” Not one of them that I examined really explained why. US delegation members, despite all the talk about openness and participation in Internet governance, were forced to remain mum.
So what happened?
It took some digging, but one possible reason for the “collapse” has emerged. A group of African nations attempted to insert words about the the rights of member states to access telecommunications networks (T09-WTSA 12-C-0064). Opposition was expressed. A vote was held. The amendment passed by a vote of vote 77 for, 33 against, 8 abstentions. Western media have presented this language as “an unambiguous attempt to open the ITRs up to governance and content regulation.”
But was it? This is a more troublesome and complex issue than it might appear. In essence, countries such as Sudan have been complaining about the ability of the US govt to impose sanctions on them that include denial of Internet services. ITU Resolution 69, first passed in 2008, invoked again at the 2010 Plenipot, and dusted off for the WCIT negotiations, invoked “human rights” to argue for “non-discriminatory access to modern telecommunication/ information and communication technology facilities, services and applications.” The real target of these resolutions are sanctions imposed by the U.S. on nations that are deemed bad actors. These sanctions mean that people in those countries – not just the government, mind you, but everyone, innocent and guilty alike – are denied access to Internet services such as Google, Sourceforge, domain name registrars such as GoDaddy, software and services from Oracle, Windows Live Messenger, etc. See this attached document for a catalogue of Sudan’s complaints: Res69incidentsSudan.
I can understand why major Internet application, content and service providers would oppose a claim to a right to access Internet services. It would allow the ITRs to be used to compel them to serve particular organizations or territories when they might choose (privately) not to. However, most of the sanctions at issue are US government-imposed, not private decisions by service providers. Moreover, there is a legitimate case to be made that the importance of maintaining open lines of international communication and of keeping international institutions neutral outweighs any human rights gains that might be achieved through sanctions.
Don’t agree? Suppose that the US decided to deny domain name root zone resolution to Iran because of its bad human rights record. Suppose it ordered Verisign to remove .IR from the DNS root and make it nonfunctional. Make no mistake about it: the Iranian government is about as bad as it gets with respect to human rights. But would we want ICANN/the Internet governance regime to be used as a political/strategic tool to reform Iran? What happens to global interoperability when the core infrastructure gets used in that way?
Or suppose that ICANN decided to exclude Syria from the GAC. Certainly Syria is a criminal regime. But do we want ICANN to be a neutral meeting ground for all parties or not?
No simple answer; serious issues are at stake here. It is unfortunate that the entire ITR revision process seems to have foundered on this problem, and on the misrepresentation of this issue as an attempt to bring Internet content regulation into the ITRs.
Not that I think we really need new ITRs. The world can live without a revised treaty; it can rely on WTO or bilateral trade agreements and free trade principles to govern Internet and telecommunication interconnection. But this incident does show that one must always be skeptical of mainstream accounts of international negotiations, and be attuned to the weird, ironic and hypocritical nature of the process: it is the pro-Internet freedom nations that are insisting on using denial of access to internet services and infrastructure as a form of policy leverage, and the anti-human rights nations that are claiming a universal right of internet access.