Subject: ARTICLE 19's Legal Analysis of the Future ITRs
Date: Wed, 31 Oct 2012 16:38:03 +0000
Accept-language: en-GB, en-US
The following is ARTICLE 19's legal analysis of the draft future ITRs. The
analysis is also available online on our website.
ARTICLE 19 - DRAFT OF THE FUTURE INTERNATIONAL TELECOMMUNICATIONS REGULATIONS
- LEGAL ANALYSIS
Introduction
In December, the World Conference on International Communications (WCIT 2012)
will be taking place in Dubai. The stated purpose of the conference is to
review the International Telecommunications Regulations (ITRs) for the first
time since 1988 under the aegis of the International Telecommunications Union
(ITU).[i]
The ITU is the UN-specialised agency that has traditionally been tasked with
standardization and spectrum
management.[ii]
Since 1992, its main sectors of activities have been known to
includeTelecommunication Standardization (ITU-T), Radiocommunication (ITU-R)
and Telecommunication Development
(ITU-D).[iii]
Furthermore, the basic provisions of its Constitution highlight the largely
promotional nature of the ITU’s
activities.[iv]
Nonetheless, 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)’. Indeed, its overview page emphasises that ‘ICTs underpin everything
we
do’.[v]
As the basic texts of the ITU, and the ITRs in particular, were adopted in
the pre-digital age, the question has become whether or not ‘ICTs’ or the
Internet should fall within the scope of the ITRs, and indeed what the role
of the ITU and governments in this new ‘ecosystem’ might be. This has led to
fears in civil society circles 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.[vi]
At the same time, 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.[vii]
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.[viii]
In this analysis, ARTICLE 19 examines the key proposals to amend the ITRs
which are most likely to have a negative impact on Internet
freedoms.[ix]
We conclude that whilst concerns of the ITU overtaking the Internet might
be
overstated,[x]
some of the proposals that have been made give no ground for complacency on
the part of those who want to preserve Internet
freedoms.[xi]
In particular, we recommend that: (i) every effort should be made to oppose
the inclusion of the terms ‘ICTs’ or ‘Internet’ in the ITRs; (ii) proposals
touching on substantive Internet policy issues (as opposed to purely
technical issues) should be strongly resisted; (iii) the European Telecoms
Network Operators (ETNO) proposal should be rejected as undermining the net
neutrality principle.
Our legal analysis focuses on four key issues. First, we review the question
of definitions and scope of the ITRs. Second, we examine proposals that would
give greater control to the ITU over content-related aspects of Internet
policy. Third, we review the ETNO proposal on new IP interconnection pricing
scheme and its impact on net neutrality. Fourth, we highlight a number of
factors mitigating fears that the ITU might be overtaking the Internet. Our
recommendations on how these issues should be addressed are included at the
end of the analysis.
1.
1. Definitions and scope of the ITRs: maintain the status quo
Purpose and scope
The ITRs were adopted in Melbourne, Australia in 1988. Article 1 deals with
the purpose and scope of the ITRs. Under clause 1.1 , this includes the
adoption of general principles relating to ‘the provision and operation of
international telecommunication services offered to the public’ as well as to
‘the underlying international telecommunication transport means used to
provide such
services’.[xii]
Clause 1.3 further provides that the ITRs are established with a view to
‘facilitating interconnection and interoperability of telecommunication
facilities’ and ‘to promoting the harmonious development and efficient
operation of technical facilities, as well as the efficiency, usefulness and
availability to the public of international telecommunication services’.
A number of clauses of Article 1 are concerned with the non-binding nature of
ITU recommendations, which are meant to flesh out the general principles laid
down in the ITRs. By contrast, it should be noted that under Article 4.3 of
the ITU Constitution, the ITRs themselves are binding. However, thanks to
their generally loose wording, states have traditionally enjoyed great
latitude in their implementation.
According to the draft of the future ITRs, no significant changes are
proposed to Article 1 save for the use of language suggesting stricter
compliance with the ITRs (‘shall provide’). Given the possibility that ‘ICTs’
or ‘the Internet’ might be included in the definitions of the ITRs and the
potential implications for Internet freedoms (see further below), ARTICLE 19
generally recommends the use of non-prescriptive language in Article 1 and
throughout the ITRs. In our view, compliance with ITU standards should remain
voluntary in nature; i.e. maintain the status quo with 'ITU recommendations'
rather than requirements.
Definitions
Article 2 of the ITRs defines a number of terms, including
‘telecommunication’ (clause 2.1) and ‘international telecommunication
service’ (clause 2.2). 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 (e.g. CWG/4/53).
ARTICLE 19 strongly opposes the inclusion of the Internet in the definitions
of or indeed throughout the ITRs for two main reasons:
• Firstly, we believe that this would unduly broaden the mandate of
the ITU, which is ill-equipped to deal with broader Internet-policy and
fundamental rights issues. In particular, the ITU has maintained a relatively
closed and non-transparent decision-making process in contrast to the open,
decentralised, multi-stakeholder model that has allowed the Internet to
flourish.[xiii]
• 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 (see also Part III about the ETNO
proposal
below).[xiv]
Similarly, we urge 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.[xv]
The term ‘ICTs’ has been used for some years to refer to the convergence of
audiovisual and telephone networks with computer
networks.[xvi]
It is now increasingly used in common parlance in relation to Internet
policy matters, especially online content regulation. By contrast,
‘telecommunication’ has traditionally assumed a narrower, more technical,
definition. Given the dynamic evolution of the term 'ICTs' as a matter of
practice, we believe that it would be artificial to seek to confine the
definition of 'ICTs' to that of 'telecommunication'. For this reason, we are
not convinced by proposition 2 outlined above and generally favour the status
quo.
Finally, and in the same vein, we reject the inclusion in definitions or
elsewhere in the draft of the future ITRs of the terms ‘data processing’,
‘data transmission’, ‘Internet traffic’, ‘Internet protocol’, 'IP
interconnection' or words to that effect. We also caution against the use of
these terms disjunctively, such as the term ‘traffic’ where it might be
understood as encompassing ‘Internet traffic’ or ‘data traffic’ (e.g.
‘traffic termination services’). Definitions which effectively refer to
‘VoIP’ should equally be rejected (see Part III below).
2. Proposals to include cyber-security and related issues should be rejected
Several proposals have been made in the Draft of the Future ITRs to add an
Article 5A and Article 5B to deal with 'confidence and security of
telecommunications/ICTs'. Among other things, the proposed amendments include
references to 'spam', 'cyber-crime', 'cyber-security', 'data preservation,
retention, protection', 'protection of personal information, privacy and
data', 'information and network security' and 'fraud'.
ARTICLE 19 generally 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. We recognise, 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, e.g.
'Member States should cooperate to take action to counter spam'. Moreover, as
Milton Mueller points out, some proposed amendments go no further than what
some States are already doing, e.g. most States already have legislation in
place to counter spam or protect privacy to some
degree.[xvii]
Equally, it is unclear that the draft ITRs authorise action or measures
that States cannot already take nationally, e.g. 'prevent, detect and respond
to
cyber-crime'.[xviii]
Nonetheless, we remain 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. We reiterate that the ITU is ill-suited as a
forum for broader Internet policy issues for the reasons outlined above. Some
proposals clearly illustrate this point. For example, the mere suggestion
that States should be required to cooperate to harmonize their laws on data
retention (presumably under the auspices of the ITU) seems to ignore the
difficulties and controversies surrounding the implementation of the EU Data
Retention
Directive.[xix]
Moreover, the ITU would be duplicating the work of other international
organisations such as the Council of Europe (COE) or the OSCE which have
worked on some of these issues for many years but are far more open and have
expertise of their human rights implications, e.g. the COE Cybercrime
Convention.
Several other proposals are a matter of concern, although the number of
alternative proposals on cyber-security (chiefly laid down in new Article 5A)
seems to indicate a lack of consensus on these issues. In this regard, one
can cite, for example, the requirement to identify subscribers (CWG/4/228,
Article 5A.8) or the lack of unrestricted access to international
telecommunications services where they are used for the purposes of
'interfering with the internal affairs or undermining the sovereignty,
national security, territorial integrity and public safety of other States'
or 'to divulge information of a sensitive nature' (ibid, Article
5A.4).[xx]
While these proposals may not prove to pose much of a threat to the extent
that they do not garner sufficient political support - which seems plausible
- they remain fundamentally at odds with the open Internet and Internet
freedoms. Ultimately, however, the key issue is for ICTs, the Internet and
cyber-security to be removed from the ambit of the ITRs altogether.
3. The ETNO proposal would seriously undermine net neutrality
Should the Internet or ICT fall within the ambit of the ITRs 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). We believe
that if these proposals were accepted, the net neutrality principle would be
seriously undermined.
It is worth remembering at the outset that telecom operators ('telcos') and
information services have historically evolved under very different
regulatory regimes. While telcos were usually chiefly concerned with the
infrastructure layer to provide telecommunication services and were tightly
regulated (e.g. licensing requirements), information services, by contrast,
evolved in a separate category, largely free from regulation, riding on top
of that infrastructure (the application layer). Over time, however, telcos
became increasingly deregulated and the old state-owned monopolies were
dismantled. At the same time, evolving new technologies allowed the
application layer to provide services 'over the top' that offer cheaper
alternatives to traditional telecommunications services and broadcasting
networks, e.g. VoIP (skype) or video streaming.
Unsurprisingly, telcos have been deeply dissatisfied with the current
regulatory and pricing regime under which over-the-top (OTT) application
services have been able to use their infrastructure to send growing Internet
data traffic and make money from it with no return for them.
The ETNO proposal therefore seeks to do three things:
* introduce a new pricing scheme under which sending networks, i.e.
content providers, OTT services and other application services, are required
to pay to interconnect with incumbent telcos ('sending party network pays'
principle); in the same vein, the ETNO proposal refers to 'fair compensation
for carried traffic';
* push for new interconnection models providing for end-to-end Quality of
Service (QoS) delivery to information service at a premium; and
* 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 deeply problematic for several
reasons:[xxi]
* 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. By the same token, it is also in breach of
international standards of freedom of
expression.[xxii]
In practice, this proposal should be rejected by those countries which have
already guaranteed net neutrality in their legislation such as the
Netherlands or Chile. We also believe that this proposal will undermine
efforts towards the adoption of EU rules explicitly protecting net
neutrality.[xxiii]
* 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[xxiv]
and out of sync with the settlement-free peering interconnection system that
has allowed the Internet to flourish.
[xxv]
It is also worth remembering at this stage that those on the receiving end,
i.e. Internet users, already pay to get access to the
Internet.[xxvi]
* 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. This in turn would have an impact on
the realisation of other rights, meaningful democratic participation and
economic
development.[xxvii]
* 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 and the ‘sending networks
pay’ interconnection regime, in contrast to the more competitive environment
in which the Internet has become so successful.
4. Impact of WCIT
There is no doubt that some of the proposals that will be on the table at
WCIT 12 are deeply disturbing and at odds with both the way in which the
Internet operates and digital freedoms generally. These proposals should be
strongly resisted.
At the same, it appears that the importance of both the ITU and the ITRs
should not be overstated for a number of reasons. 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. Secondly, the ITU has a mixed record on
expanding its mandate in respect of
ICTs,[xxviii]
even though the potential seriousness of an expanded mandate should not be
dismissed. Thirdly, the ITU does not have enforcement
powers.[xxix]
Fourthly, the ITRs would have to be read consistently with Member States’
other treaty obligations in any
event.[xxx]
Fifthly, under international law, States may make reservations to clauses
which they find
objectionable;[xxxi]
and finally, Member States could always denounce or withdraw from the ITU
Convention, and hence the
ITRs.[xxxii]
V. Recommendations
1. Every effort should be made to oppose the inclusion of the terms ‘ICTs’,
‘Internet’ or ‘IP Protocol’ in the ITRs;
2. References to 'spam', 'cyber-crime', 'cyber-security', 'data preservation,
retention, protection', 'protection of personal information, privacy and
data', 'information and network security', 'fraud' and other similar wording
should be rejected;
3. The proposal of European Telecoms Network Operators should be resisted as
seriously undermining the net neutrality principle;
4. As a matter of international law, States should make a reservation to
those clauses that fail to comply with international standards on freedom of
expression and the right to privacy on the Internet;
5. Should the revised ITRs fall well below the international standards on
freedom of expression and privacy, States should not sign the revised ITRs;
6. The ITU should open-up its decision-making processes and make its
reports and other documentation available free-of-charge.
________________________________
[i]
See ITU webpage about WCIT 2012.
[ii]
See ITU history available on the ITU website.
[iii]
Ibid.
[iv]
See Article 1 of Chapter 1 of the ITU Constitution available on the ITU
website. One exception to this is Article 1 (2) (a), which provides that the
ITU “shall effect allocation of bands of the radio-frequency spectrum, the
allotment of radio frequencies and the registration of radio-frequency
assignments and, for space services, of any associated orbital position in
the geostationary-satellite orbit or of any associated characteristics of
satellites in other orbits, in order to avoid harmful interference between
radio stations of different countries.”
[v]
See ITU overview webpage.
[vi]
See joint civil society letter of 17 May 2012 on ARTICLE 19's website.
[vii]
See in particular Milton Mueller’s analysis of the economic implications of
the ITR review process, available on the internetgovernance.org website.
[viii]
See several background briefings prepared by the ITU, available on the ITU
website.
[ix]
Our analysis is based on the document made available on the ITU website.
However, we have had sight of more detailed proposals as part of the UK
working group on WCIT (restricted access) and the wictleaks website.
[x]
See Milton Mueller’s analysis cited above at note 7.
[xi]
ARTICLE 19 will take part in the official UK delegation to WCIT. This paper
represents our views alone.
[xii]
Article 1.1 of the ITRs.
[xiii]
See civil society joint letter of 6 September 2012, available on the Centre
for Democracy and Technology's (CDT) website.
[xiv]
See Milton Mueller, supra note 7.
[xv]
See for example, UNCTAD, ICT Development Indices, 2003, p 3, available on
the UNCTAD website.
[xvi]
E.g. Jan Herzoff, The ICT Convergence Discourse in Information Systems
Literature, 2009, available on the London School of Economics website.
[xvii]
See Milton Mueller, Threat Analysis WCIT part 4:the ITU and Cybersecurity,
21 June 2012, available on the internetgovernance.org website.
[xviii]
Ibid.
[xix]
For more details on the implications of the data retention proposals, see
CDT's analysis, available on CDT's website.
[xx]
For a more contextual analysis of these provisions, see Milton Mueller,
cited above at n17 and Dwayne Winseck, The ITU and the Real Threats to the
Internet, Part IV: the Triumph of State Security and Proposed Changes to the
ITRs, 19 June 2012.
[xxi]
The proposal has been criticised, among others, by Milton Mueller in Threat
Analysis of WCIT Part 3: Charging you, charging me, 9 June 2012, available on
the internetgovernance.org website.
[xxii]
See Four Special Mandates on Freedom of Expression, Joint Declaration on
Freedom of Expression and the Internet, June 2011, available on ARTICLE 19's
website.
[xxiii]
On the EU implications of the ETNO proposal, see La Quadrature du Net,
Dominant Telcos Tryt to End Net Neutrality Through ITU, 13 September 2012,
available on La Quadrature du Net's website.
[xxiv]
One need only think of already exorbitant international roaming charges for
mobile communications. See EDRi, ENDitorial: The ETNO's WCIT proposals are
not as bad as some say, 10 October 2012.
[xxv]
For more details see Centre for Democracy and Technology, ITU proposal
threatens to impair access to open, global Internet, 21 June 2012, available
on CDT's website.
[xxvi]
See EDRI, supra note 24.
[xxvii]
See CDT, supra note 25.
[xxviii]
See Milton Mueller, Threat Analysis of ITU’s WCIT Part I: Historical
Context, 24 May 2012, available on the internetgovernance.org website.
[xxix]
See Milton Mueller, supra note 7.
[xxx]
Under Article 31 (3) (c) of the Vienna Convention on the Law of Treaties,
treaties should be interpreted taking into account any relevant rules of
international law applicable in the relations between the parties.
[xxxi]
Article 19 of the Vienna Convention on the Law of Treaties; more
specifically, see Article 10.3 of the Draft of the Future ITRs.
[xxxii]
See Article 57 of the Constitution of the ITU.
ARTICLE 19's Legal Analysis of the Future ITRs, Gabrielle Guillemin, 10/31/2012