Hey ITU Member States: No More Secrecy, Release the Treaty Proposals
The International Telecommunication Union (ITU) will hold the World Conference on International Telecommunications (WCIT-12) in December in Dubai, an all-important treaty-writing event where ITU Member States will discuss the proposed revisions to the International Telecommunication Regulations (ITR). The ITU is a United Nations agency responsible for international telecom regulation, a bureaucratic, slow-moving, closed regulatory organization that issues treaty-level provisions for international telecommunication networks and services. The ITR, a legally binding international treaty signed by 178 countries, defines the boundaries of ITU’s regulatory authority and provides "general principles" on international telecommunications. However, media reports indicate that some proposed amendments to the ITR—a negotiation that is already well underway—could potentially expand the ITU’s mandate to encompass the Internet.
In similar fashion to the secrecy surrounding ACTA and TPP, the ITR proposals are being negotiated in secret, with high barriers preventing access to any negotiating document. While aspiring to be a venue for Internet policy-making, the ITU Member States do not appear to be very open to the idea of allowing all stakeholders (including civil society) to participate. The framework under which the ITU operates does not allow for any form of open participation. Mere access to documents and decision-makers is sold by the ITU to corporate “associate” members at prohibitively high rates. Indeed, the ITU’s business model appears to depend on revenue generation from those seeking to ‘participate’ in its policy-making processes. This revenue-based principle of policy-making is deeply troubling in and of itself, as the objective of policy making should be to reach the best possible outcome.
Release the documents
The ITU Member States should urgently lift restrictions on sharing the preparatory materials and ITR amendments, and release the documents. The current preparatory process lacks the transparency, openness of process, and inclusiveness of all relevant stakeholders that is the hallmark of Internet policy-making. A truly multi-stakeholder participation model requires equal footing for each relevant stakeholders including civil society, the private sector, the technical community, and participating governments. These principles are the minimum that one could expect following commitments made at the World Summit on Information Society (WSIS). The ITU Secretary-General Dr. Hamadoun I. Touré reiterated these commitments last year at the Internet Governance Forum in Kenya:
In its own words, the "ITU remains firmly committed to the WSIS process," and it considers itself to have "made considerable progress in many areas in advancing the implementation of the WSIS outcomes."
And in practice? Not likely. This is why EFF, European Digital Rights, CIPPIC and CDT and a coalition of civil society organizations from around the world are demanding that the ITU Secretary General, the WCIT-12 Council Working Group, and ITU Member States open up the WCIT-12 and the Council working group negotiations, by immediately releasing all the preparatory materials and Treaty proposals. If it affects the digital rights of citizens across the globe, the public needs to know what is going on and deserves to have a say. The Council Working Group is responsible for the preparatory work towards WCIT-12, setting the agenda for and consolidating input from participating governments and Sector Members.
We demand full and meaningful participation for civil society in its own right, and without cost, at the Council Working Group meetings and the WCIT on equal footing with all other stakeholders, including participating governments. A transparent, open process that is inclusive of civil society at every stage is crucial to creating sound policy.
Respect the multi-stakeholder process
Civil society has good reason to be concerned regarding an expanded ITU policy-making role. To begin with, the institution does not appear to have high regard for the distributed multi-stakeholder decision making model that has been integral to the development of an innovative, successful and open Internet. In spite of commitments at WSIS to ensure Internet policy is based on input from all relevant stakeholders, the ITU has consistently put the interests of one stakeholder—Governments—above all others. This is discouraging, as some government interests are inconsistent with an open, innovative network. Indeed, the conditions which have made the Internet the powerful tool it is today emerged in an environment where the interests of all stakeholders are given equal footing, and existing Internet policy-making institutions at least aspire, with varying success, to emulate this equal footing. This formula is enshrined in the Tunis Agenda, which was committed to at WSIS in 2005:
83. Building an inclusive development-oriented Information Society will require unremitting multi-stakeholder effort. We thus commit ourselves to remain fully engaged—nationally, regionally and internationally—to ensure sustainable implementation and follow-up of the outcomes and commitments reached during the WSIS process and its Geneva and Tunis phases of the Summit. Taking into account the multifaceted nature of building the Information Society, effective cooperation among governments, private sector, civil society and the United Nations and other international organizations, according to their different roles and responsibilities and leveraging on their expertise, is essential.
84. Governments and other stakeholders should identify those areas where further effort and resources are required, and jointly identify, and where appropriate develop, implementation strategies, mechanisms and processes for WSIS outcomes at international, regional, national and local levels, paying particular attention to people and groups that are still marginalized in their access to, and utilization of, ICTs.
Indeed, the ITU’s current vision of Internet policy-making is less one of distributed decision-making, and more one of ‘taking control.’ For example, in an interview conducted last June with ITU Secretary General Hamadoun Touré, Russian Prime Minister Vladimir Putin raised the suggestion that the union might take control of the Internet: “We are thankful to you for the ideas that you have proposed for discussion,” Putin told Touré in that conversation. “One of them is establishing international control over the Internet using the monitoring and supervisory capabilities of the International Telecommunication Union (ITU).”
Perhaps of greater concern are views espoused by the ITU regarding the nature of the Internet. Yesterday, at the World Summit of Information Society Forum, Mr. Alexander Ntoko, head of the Corporate Strategy Division of the ITU, explained the proposals made during the preparatory process for the WCIT, outlining a broad set of topics that can seriously impact people's rights. The categories include "security," "interoperability" and "quality of services," and the possibility that ITU recommendations and regulations will be not only binding on the world’s nations, but enforced.
In this sense, it is somewhat concerning that the ITU appears to draw its inspiration for Internet reform from the earliest days of the network. For example, earlier this year, Ntoko zeroed in on online anonymity, which EFF has fought to protect in the past. Citing the early days of ARPAnet, when the Internet consisted of a number of academic institutions who could identify each other by IP address, Ntoko has expressed his view regarding the anonymous nature of the Internet as: "[it] wasn't always that way, and shouldn't be in the future."
Rights to online expression are unlikely to fare much better than privacy under an ITU model. During last year’s IGF in Kenya, a voluntary code of conduct was issued to further restrict free expression online. A group of nations (including China, the Russian Federation, Tajikistan and Uzbekistan) released a Resolution for the UN General Assembly titled, “International Code of Conduct for Information Security.” The Code seems to be designed to preserve and protect national powers in information and communication. In it, governments pledge to curb “the dissemination of information that incites terrorism, secessionism or extremism or that undermines other countries’ political, economic and social stability, as well as their spiritual and cultural environment.” This overly broad provision accords any state the right to censor or block international communications, for almost any reason.
Promote openness and transparency
Currently, there are several organizations dealing with Internet Policy at the global and regional level. The Committee of Ministers of the Council of Europe issued guidance on Internet governance in a Declaration on Internet Governance Principles. It emphasizes the need for openness and transparency:
The development and implementation of Internet governance arrangements should ensure, in an open, transparent and accountable manner, the full participation of governments, the private sector, civil society, the technical community and users, taking into account their specific roles and responsibilities. The development of international Internet-related public policies and Internet governance arrangements should enable full and equal participation of all stakeholders from all countries.
The decentralised nature of the responsibility for the day-to-day management of the Internet should be preserved. The bodies responsible for the technical and management aspects of the Internet, as well as the private sector should retain their leading role in technical and operational matters while ensuring transparency and being accountable to the global community for those actions which have an impact on public policy.
There are some factors in place that may, perhaps, insulate strong democracies such as the United States from the more harmful elements of the ITU proposal. As with all international policy-making venues, ITU outputs will not become law until enacted domestically by Member States such as the United States, Canada o Sweden. This means that any ITU policies antithetical to a free and democratic society might not necessarily make it into domestic law. Central to this will be the legitimacy of the institution, and the United States government, for example, has already stated that the ITU’s lack of adherence to multi-stakeholder principles is deeply problematic and a barrier to the institution’s legitimacy.
In spite of this, a closed and expanded ITU policy-making role remains a threat to an already fragile public interest. Several governments have continuously sought to launder unpopular measures through international intergovernmental venues that would subvert democratic Internet principles or hard-won international human rights law protections. The Council of Europe’s Cybercrime Treaty is a good example of policy laundering at an international level. Similarly, multi-lateral or pluri-lateral agreements, like ACTA and TPP, are a way to bypass national and global inter-governmental institutions that are more transparent and open to civil society participation as well as democratic checks and balances.
The ITU proposal will establish an ongoing source of international policy that does not have the interests and rights of Internet users in mind. Further, unlike other venues which recognize the importance of ongoing flexibility in Internet policy-making, the ITRs are a treaty, legally binding on its signatories. While the ITU’s refusal to commit to a multi-stakeholder model may act to safeguard strong democracies from its more harmful policy outputs, democratic countries with weaker internal checks and balances will find it more difficult to provide such insulation. Even countries with well-entrenched safeguards for human rights may be tempted to adopt laws that conflict with human rights where these align with powerful domestic interests, as was demonstrated by recent attempts to pass SOPA/PIPA and CISPA in the United States.
We urge the ITU Secretary General et al to ensure that the outcomes of the WCIT and its preparatory process truly represent the common interests of all who hold a stake in the future of our information society. If your government is a member of ITU, demand transparency and tell them to open the process and disclose the WCIT preparatory documents and Treaty amendments.
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