When the European Parliament rejected the Anti-Counterfeiting Trade Agreement after hundreds of thousands of Europeans took to the streets in protest, it signaled disappointment in some of the extreme IP policies encouraged by ACTA that threatened the functioning of the Internet. But at the same time, the protests reflected a sweeping rejection of the secretive, government-directed process that spawned the agreement in the first place. The world’s Internet users showed that they are no longer willing to accept outdated and counterproductive policies born out of closeted discussions that fail to take into account the interests of ordinary people.
Trade agreements including ACTA, TPP and free trade agreements between the United States and its trading partners (FTAs), tend to be bad news for international policy. Trade agreements are typically premised on high stakes tradeoffs and competing government agendas. Trade agreements impose mandatory obligations that require signatories to transfer provisions into domestic law. This global obligation-based system can have the effect of binding governments to inflexible, long-term rules that manifest as a drag on the fast-paced environment of online innovation. For instance, since 2002 the U.S. has signed several bilateral free trade agreements compelling trading partners to rewrite their IP laws based on the flawed U.S. Digital Millennium Copyright Act. As a result, U.S. trading partners, including many developing nations, have adopted lopsided legal copyright regimes that do not serve the best interests of their citizens. While business interests usually feature prominently into trade negotiations, the interests of Internet users and many developing nations are rarely granted the same level of consideration. In the case of ACTA, both civil society and many developing nations were intentionally excluded from these negotiations.
Trade agreements, however, aren’t the only kind of international deal making that consistently sells users short. Similar problems can play out in established intergovernmental organizations, too. A primary example of this is the International Telecommunications Union (ITU), a bureaucratic agency made up of 193 member states and corporate “associate” members that include some of the world’s most powerful telecommunications companies. When it hashes out treaties, the ITU epitomizes many of the worst traits of Internet policymaking -- it is an exclusive, government-directed process that is hostile to the distributed decision-making model that has fostered the Internet’s growth.
Outdated Telephone Regulations Don't Translate to the Internet
For a number of years now, a few ITU Member States have sought to expand the agency’s regulatory scope to encompass some Internet-related issues. Yet the ITU appears stuck in the same outmoded mindset that was applied to regulating global telephone networks. Rules and rule-making that made sense for the smooth functioning of global telephone systems such as numbering do not transfer well to the Internet environment. While telephone number may have played a central role in individual’s day-to-day lives, its capacity for societal harm is limited. Those old ITU technical policies don’t translate well to the complex and transformative medium that is the Internet, but a few ITU Member States, nevertheless, have been pushing for expanding its mission beyond its original goals.
One dangerously problematic provision in the ITU Constitution, or example, includes a State’s "right" to stop or suspend access to telecommunications services in order to address any communication that is dangerous to state security. In other words, the ITU Constitution permits “kill switches”— it allows governments to cut off the lifeline of communications networks in times of political protest, as the world witnessed states doing during the recent event in Egypt and Libya.
In an effort to remain relevant, the ITU has already issued a number of technical standards (ITU-T) and reports relating to various aspects of Internet policy, including on cybersecurity and cybercrime. However, these have not been binding, nor have they witnessed broad adoption or been elevated to the level of international regulations.
This coming December, the ITU’s underlying core regulatory instrument, the International Telecommunication Regulations (ITRs), will be revised at a gathering of global governments known as the World Conference on International Telecommunications (WCIT). This meeting is particularly significant because it’s the first time the treaty will be revised since the Internet was widely adopted. And given concerns about the problematic Internet-related provisions already in place, considerable attention has been directed at the ITU’s upcoming meeting in December, when its 193 member states intend to vote on whether to regulate certain aspects of Internet policy at an international level.
Just as with other international treaties or trade agreements, the International Telecommunication Regulations (ITRs) are legally binding on all the ITU’s Member States. This means that while it’s still up to lawmakers to decide whether, or to what extent, they should implement the updated ITRs into domestic law, democratic countries, including those with weak democratic institutions or a lack of robust advocacy organizations will be more likely to adopt any flawed provisions that make their way into the treaty.
Since the mid-1800s, the ITU has been tasked with international regulation of telecommunications services, regulating areas such as public switched networks, spectrum management, basic telecommunications, and voluntary standards, all of which are agreed upon by its 193 member states. It continues to exert international regulatory control over many elements of traditional telecommunications. Yet while the UN agency was once highly influential on the global stage, its relevance on a number of issues has been in a state of decline since the rise of the Internet as the primary mode of international communication. Attempts to bring certain aspects of Internet regulation into the ITU’s purview have been interpreted by some as an attempt to regain that former position of global economic power.
Solutions Needed Across the Board
An expanded ITU role in Internet governance is far from ideal. Some countries appear to be using the ITU as a venue to try and push forward policy agendas that are hostile to an open Internet, such as Russia’s apparent failed attempt to put through a cybersecurity treaty for some time. Large European telecoms appear to be using the forum in an attempt to gain a business advantage over foreign competitors (at great potential cost for online innovation).
That’s not to say that everything the ITU does is bad. To this day, the ITU continues to educate governments on best practices for telecommunication and act as a resource center for countries, especially developing nations. Most importantly, the organization provides technology to aid development on the premise that efficient communications systems further a society's growth.
At the end of the day, however, global Internet users would once again find themselves on the losing end if ITU Member States manage to insert provisions into its treaty that deals with the global Internet. While some level of international coordination is necessary to avoid a fragmented network and to ensure policies are useful across varied jurisdictions, the nature of the ITU policy-making makes it inherently ill suited as an institution to deal with the Internet. There may be many legitimate concerns surrounding existing Internet governance arrangements, particularly for developing countries. It is no longer acceptable to ignore those problems. Nevertheless, the ITU is not the answer to those problems.