'Non Accession to the ITRs Considered Harmful'
Author(s): Richard Hill
One of the treaties administered by the International Telecommunications Union is the International Telecommunications Regulations (ITRs), whose purpose is to promote the development of telecommunication services. The 1988 version of the ITRs opened the way for privatisation, liberalization,...
General Area R. Hill Internet-Draft Hill & Associates Intended status: Informational Expires: December 25, 2013 June 25, 2013 "Non Accession to the ITRs Considered Harmful" draft-hill-itr-non-accession-harmful-00.txt Status of this Memo This Internet-Draft is submitted to IETF in full conformance with the provisions of BCP 78 and BCP 79. Internet-Drafts are working documents of the Internet Engineering Task Force (IETF), its areas, and its working groups. Note that other groups may also distribute working documents as Internet- Drafts. Internet-Drafts are draft documents valid for a maximum of six months and may be updated, replaced, or obsoleted by other documents at any time. It is inappropriate to use Internet-Drafts as reference material or to cite them other than as "work in progress." The list of current Internet-Drafts can be accessed at http://www.ietf.org/ietf/1id-abstracts.txt. The list of Internet-Draft Shadow Directories can be accessed at http://www.ietf.org/shadow.html. This Internet-Draft will expire on December 25, 2013. Copyright Notice Copyright (c) 2013 IETF Trust and the persons identified as the document authors. All rights reserved. This document is based on a more detailed legal analysis [Hill-2013] and the author wishes to acknowledge Oxford University Press for their permission to publish this summarized version. The full version is at http://ijlit.oxfordjournals.org/content/early/2013/06/ 10/ijlit.eat008.full?ijkey=otqkCXVOAelJUPy&keytype=ref This document is subject to BCP 78 and the IETF Trust's Legal Provisions Relating to IETF Documents (http://trustee.ietf.org/license-info) in effect on the date of publication of this document. Please review these documents carefully, as they describe your rights and restrictions with respect to this document. Code Components extracted from this document must include Simplified BSD License text as described in Section 4.e of the Trust Legal Provisions and are provided without warranty as described in the Simplified BSD License. Hill Expires December 25, 2013 [Page 1] Internet-Draft Non Accession Harmful June 2013 Abstract One of the treaties administered by the International Telecommunications Union is the International Telecommunications Regulations (ITRs), whose purpose is to promote the development of telecommunication services. The 1988 version of the ITRs opened the way for privatisation, liberalization, and the growth of the Internet and mobile networks. Given the subsequent significant structure and technological changes, the ITU membership agreed to meet in 2012 to revise the ITRs. While consensus was found on an overwhelming majority of the treaty text, some provisions proved to be controversial, leading to a split in the membership and sharp criticism of selected provisions. As a result, some ITU Member States did not sign the treaty. This document analyses that criticism and attempts to place it in context; it identifies problems that may arise if states to not accede to the treaty, and suggests a way forward, concluding that not acceding may have undesirable results for the citizens of non-signatory countries and for interoperability in general. Hill Expires December 25, 2013 [Page 2] Internet-Draft Non Accession Harmful June 2013 Table of Contents 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. The 2012 ITRs . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Criticism of the 2012 ITRs . . . . . . . . . . . . . . . . . 5 4. Analysis of the Criticism . . . . . . . . . . . . . . . . . . 5 4.1. Analysis of Criticism of Specific Provisions . . . . . . . 6 5. A Way Forward? . . . . . . . . . . . . . . . . . . . 7 6. IANA considerations . . . . . . . . . . . . . . . . . . . . . 8 7. Security considerations . . . . . . . . . . . . . . . . . . . 8 8. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . 8 9. Informative references . . . . . . . . . . . . . . . . . . . . 9 Authors' Addresses . . . . . . . . . . . . . . . . . . . . . . . . 10 Hill Expires December 25, 2013 [Page 3] Internet-Draft Non Accession Harmful June 2013 1. Introduction The World Conference on International Telecommunications (WCIT-12) was convened in December 2012 at the request of the ITU members in order to revise the International Telecommunication Regulations (ITRs), which had been agreed in 1988 and which opened the way for the privatisation and liberalization that has since characterized the telecommunications sector, paving the way for the growth of the Internet. [WCIT-12] The purpose of the ITRs is to establish general principles which relate 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. And this with a view to attaining the purposes of the International Telecommunication Union in promoting the development of telecommunication services and their most efficient operation while harmonizing the development of facilities for worldwide telecommunications. It was felt necessary to revise the ITRs in light of the significant changes structural and technological changes that have taken place since 1988, in particular privatisation, liberalization, and the growth of mobile and IP-based networks. Unlike previous ITU conference, the ITU membership failed to reach consensus, with the result that the treaty agreed at WCIT was not signed by all the states present and having the right to sign: 89 signed and 55 did not. Countries that did not sign the ITR may accede to them at any time. A refusal by some countries to accede to the new ITRs could deprive their citizens of certain benefits (such as transparency of roaming prices, prevention of numbering misuse, transmission of calling party identification, improved accessibility for people with disabilities, and best practices regarding energy efficiency and e-waste). Further, non-uniform implementation could create difficulties for companies operating worldwide, if different regulatory regimes emerge. In the limit, refusal to implement the new ITRs might result in the development of non-harmonized national practices which might lead to an undesired fragmentation of the Internet. These undesirable consequences can be avoided if all countries accede to the ITRs with the understanding that the controversial clauses do not in fact have the negative effects which have been attributed to them by some commentators. Hill Expires December 25, 2013 [Page 4] Internet-Draft Non Accession Harmful June 2013 2. The 2012 ITRs Much of the 1988 ITRs were retained with some editorial revisions to bring them up to date. In particular, the article on charging and accounting was significantly streamlined and brought into alignment with modern practices. In addition, new provisions were added to prevent misuse of telephone numbers, to ensure transmission of calling line identification, to ensure transparency of international roaming prices, to improve network security, to combat spam, to improve energy-efficiency and reduce e-waste, and to facilitate use of telecommunications by people with disabilities. [WCIT-12] Most of the treaty text was not controversial, but certain specific provisions of the treaty were controversial. Those provisions are contained in 6 paragraphs out of a total of 77 paragraphs that comprise the main text of the treaty. One Resolution adopted by WCIT was also controversial. If that is included, then the controversial text comprises less than 2 pages out of the total 24 pages approved at the conference. [Hill-2013] 3. Criticism of the 2012 ITRs It has been said that the WCIT outcomes establish a new international regulatory regime for the Internet and give new powers to the ITU. This new regime threatens the current multi-stakeholder model for Internet governance which has proven its worth, and it threatens economic growth and freedom of speech around the world. [EC-2012], [US-2013], [New-2013] In particular a provision in the Preamble of the ITRs creates new rights for states (which threaten established individual rights); new articles on security and spam invite governments to take content-based action which could result in regulation of speech on the Internet; a new Resolution represents a direct extension of ITU's role and scope into the Internet and shifts the emphasis from community and consensus to centralization through government action. 4. Analysis of the Criticism The criticism of the 2012 ITRs appears to be based on a superficial and out-of-context reading of the provisions in question. When analysed correctly from the legal point of view, it can be seen that the new provision in the Preamble does not conflict with existing rights of individuals or of states; that the new provisions on security and spam cannot be understood to related to content; and that the new Resolution does not in any way expand ITU's role and scope, while it does recognize the multi-stakeholder model agreed at the World Summit on the Information Society (WSIS). [Hill-2013] Hill Expires December 25, 2013 [Page 5] Internet-Draft Non Accession Harmful June 2013 Thus it is incorrect to conclude that the WCIT outcomes establish a new international regulatory regime for the Internet and give new powers to the ITU. Nor do they threaten the current multi-stakeholder model for Internet governance or free speech. 4.1. Analysis of Criticism of Specific Provisions Regarding criticism of specific provisions [Hill-2013]: * The new provision in the Preamble does not create any additional rights or obligations, it merely recognizes the rights and obligations that already existed under the Constitution, see in particular its Article 35. * New language in Article 1 regarding "authorized operating agencies" merely aligns the ITRs with the ITU Constitution (which has precedence over the ITRs) and thus does not extend the scope of the ITRs. * Article 5A on security and 5B on spam must be interpreted in light of Article 1, which defines the scope of the treaty and states that it does not address the content-related aspects of telecommunications. Since the ITRs do not address content, those articles cannot be seen to be addressing content. Thus, those articles are about measures that do not depend on content. There are such security measures and such measures to combat spam. * Those who argue, in the alternative, that there are no possible non-content-related measures regarding security and spam are in effect arguing that the two articles are inoperative, because Article 1 (Purpose and Scope) excludes content-related aspects and prevails over Articles 5A and 5B. The usual approach to such a situation would be to sign the treaty with a reservation of the form "we will not apply Article 5B because we believe that it is inconsistent with the Purpose and Scope". * In any case, by virtue of the "no content" provision of Article 1, no country could invoke the ITRs as justification for imposing content-filtering. That is, since content is outside the scope of the ITRs, so is content-filtering. Of course a country might impose content-filtering, but it could not invoke the ITRs as a legal basis for doing so. That is, the "necessary measures" referred to in Article 5B cannot be understood to include content-filtering. * Paradoxically, those who refuse to implement Article 5B on the grounds that it is related to content are in effect arguing against limitations on measures to counter spam. Indeed at present there aren't (to the author's knowledge) any international treaties that limit what states can do regarding spam, apart from obligations relating to human rights. If it is understood that Article 5B does not relate to content, then that article puts an obligation on states not to deal with the content-related aspects of spam. That is a significant restriction. Those who state that Article 5B applies to content are in effect denying the restriction and opting for the status quo, where there are no restrictions (apart from human rights) regarding how to deal with spam. And they are in Hill Expires December 25, 2013 [Page 6] Internet-Draft Non Accession Harmful June 2013 effect creating a situation where there is no basis in international law (apart from human rights) to complain regarding anti-spam measures. Similar considerations apply regarding Article 5A on security: refusal to accept this article is tantamount to refusing to accept restrictions on security measures (apart from those arising out of human rights obligations). * Articles 5A and 5B call for cooperation amongst ITU Member States, a call which also appears in WTSA Resolutions 50 and 52. Many countries have initiatives regarding security and spam. Presumably it would be desirable for countries to cooperate to adopt "best practices" in these area. That is, practices that clearly do not impinge on human rights and that respect due process. So it would appear that the call for cooperation is positive, because it should make it less likely that some country would (perhaps unwittingly) adopt inappropriate measures. That is, the call for cooperation appears to make it more likely that security measures would follow the best-practices models that are generally agreed. * The operative part of Resolution 3 invites ITU Member States to discuss Internet-related technical, development and public-policy issues within the mandate of ITU at various ITU forums; to engage with all their stakeholders in this regard. And it instructs the Secretary-General of ITU to continue to take the necessary steps for ITU to play an active and constructive role in the development of broadband and the multi-stakeholder model of the Internet as expressed in paragraph 35 of the Tunis Agenda; and to support the participation of Member States and all other stakeholders, as appropriate, in the activities of ITU in this regard. The Resolution cannot (and does not) expand ITU's role and scope, and it cannot (and does not) modify the WSIS outcomes. It does not shift the emphasis from the multi-stakeholder model towards top-down government action, on the contrary, it promotes multi-stakeholder consultations. 5. A Way Forward? A refusal by some countries to implement the new ITRs could deprive their citizens of certain benefits (such as transparency of roaming prices, prevention of numbering misuse, transmission of calling party identification, improved accessibility for people with disabilities, and best practices regarding energy efficiency and e-waste). [Hill-2013] Further, non-uniform implementation could create difficulties for companies operating worldwide, if different regulatory regimes emerge. In the limit, refusal to implement the new ITRs might result in the development on non-harmonized national practices which might lead to an undesired fragmentation of the Internet. [LS-2013] Hill Expires December 25, 2013 [Page 7] Internet-Draft Non Accession Harmful June 2013 There are various scenarios regarding what could happen in the future: * Most countries agree to be bound by the ITRs * Most countries do not agree to be bound by the ITRs * Most countries implement the ITRs in a non-controversial manner: - Recognize that Preamble does not prevent suspension of services or otherwise modify existing rights and obligations - Recognize that there is no extension of the covered entities or of the scope - Recognize that the security and spam provisions do not relate to content - Recognize that Resolution 3 does not change the mandate of the ITU Implementation of the 2012 ITRs in a non-controversial manner might appear to be the solution that is most consistent with a legal analysis of the treaty and the solution that is most likely to avoid undesirable consequences. [Hill-2013] 6. IANA considerations There are no requests for IANA allocation of code-points in this document, nor are any other IANA actions required. 7. Security considerations The uncoordinated development of networks poses a risk of harm to the Internet. A persisting split between signatories and non- signatories of the ITRs could pose such a risk. Indeed, the recently revealed United States PRISM program [Savage-2013] is an example of unilateral surveillance of foreign Internet communications that some [ISOC-2013] consider inappropriate. And surely most would consider the Iranian control of Internet [Musil-2013] to be inappropriate. 8. Acknowledgments This document is based on a more detailed legal analysis [Hill-2013] and the author wishes to acknowledge Oxford University Press for their permission to publish this summarized version. This summarized version was presented at the GiGaNet workshop in Geneva on "The global governance of the Internet: Intergovernmentalism, multistakeholderism and networks", 17-18 May 2013. Hill Expires December 25, 2013 [Page 8] Internet-Draft Non Accession Harmful June 2013 9. Informative references [EC-2012] European Commission, "No change to telecoms and internet governance - EU Member States amongst dozens not signing proposed new International Telecommunications Regulations (ITR) Treaty, remain 100% committed to open internet" (memo 12/992 of 14/12/2012), http://europa.eu/rapid/ press-release_MEMO-12-991_en.htm [Hill-2013] Richard Hill, "WCIT: failure or success, impasse or way forward", International Journal of Law and Information Technology (forthcoming) DOI:10.1093/ijlit/eat008, http://ijlit.oxfordjournals.org/content/early/2013/06/ 10/ijlit.eat008.full?ijkey=otqkCXVOAelJUPy&keytype=ref [ISOC-2013] Internet Society, "Statement on the Importance of Open Global Dialogue Regarding Online Privacy", 12 June 2013, http://www.internetsociety.org/news/internet-society- statement-importance-open-global-dialogue-regarding- online-privacy [LS-2013] L.S., "Internet Regulation: A digital cold war?", The Economist, http://www.economist.com/blogs/babbage/2012/ 12/internet-regulation [Musil-2013] Steven Musil, "Iran develops software to control social networks", 6 January 2013, CNET, http://news.cnet.com/8301 -1023_3-57562295-93/iran-develops-software-to-control- access-to-social-networks/ [New-2013] William New, "European Commission VP Kroes Urges Open Internet, Prods Copyright Owners", Intellectual Property Watch, 21 March 2013, <http://www.ip-watch.org/2013/03/21/ european-commission-vp-kroes-urges-open-internet-prods- copyright-owners [Savage-2013] Charlie Savage, Edward Wyatt, and Peter Baker, "U.S. Confirms that it Gathers Online Data Overseas", The New York Times, June 6, 2013, http://www.nytimes.com/2013/06/ 07/us/nsa-verizon-calls.html?_r=0 Hill Expires December 25, 2013 [Page 9] Internet-Draft Non Accession Harmful June 2013 [US-2013] Witness statements made at the 5 February 2013 Hearing "Fighting for Internet Freedom, Dubai and Beyond", U.S. House of Representatives Committee on Energy and Commerce's Subcommittee on Communications and Technology http://energycommerce.house.gov/hearing/fighting-for-internet -freedom-dubai-and-beyond [WCIT-12] ITU "World Conference on International Telecommunications" http://www.itu.int/wcit. See in particular the presentation http://www.itu.int/en/wcit-12/Documents/ wcit-myth-buster-en.pptx Authors' Addresses Richard Hill Hill & Associates Geneva, Switzerland Phone: Fax: Email: firstname.lastname@example.org URI: www.hill-a.ch Hill Expires December 25, 2013 [Page 10]