Internet Governance in the Age of Surveillance

If the Internet international archives will register 2013 as the year of Edward Snowden and the disclosure of National Security Agency (NSA) surveillance programs by the media, 2012 was all about the mobilization against a United Nations (U.N.) attempt to take over the Internet. This post recaps the legal and policy debate around the negotiation of the International Telecommunications Regulations (ITRs) by the World Conference on International Telecommunications 2012 (WCIT-12) and offers some prediction on the Internet Governance (IG) agenda of 2014.

International Telecommunication Union

Based in Geneva, Switzerland, the International Telecommunications Union (ITU) dates back to the first agreements on international telegraph interconnections in the mid-nineteenth century, making it the oldest body of the U.N. system. Its main functions today include allocation of global radio spectrum and satellite orbits, development of technical standards for networks and technologies interconnection, and improvement of access to telecommunications worldwide. These activities are primarily led by its broad membership, which encompasses 193 Member States and over 700 private-sector companies and academic institutions that engage in consensus-based negotiations at the technical Study Groups of its Radiocommunication, Standardization and Development Sectors.

The ITU legal framework encompasses four international treaty-level instruments: Constitution, Convention, Radio Regulations, and International Telecommunication Regulations. The Plenipotentiary Conference, the Council, the General Secretariat and other four world conferences are the top political bodies that ultimately supervise ITU’s organic structure. Each one of them holds specific mandates in determining ITU’s general policies, evaluating its global activities and eventually amending the treaties.

ITU and Internet Governance

For several years, the ITU has been pushing for a more central role in international Internet-related public policy matters. Following a Tunisian proposal at the Plenipotentiary Conference 1998 (PP-98), the U.N. General Assembly approved the establishment of a two-phased World Summit on Information Society (WSIS), in 2003 and 2005.

The Summit was led by the ITU in cooperation with other several U.N. bodies, and gave birth to a series of non-legally binding international political outcomes, with the purpose of bridging the global digital divide. However, the underlying goal for many countries at WSIS was the distribution of the United States power in the process of Internet Governance policymaking.

In the international law vernacular, WSIS ultimately led to (i) the recognition of the need for enhanced cooperation in the future in international public policy issues pertaining to the Internet, (ii) the recognition that the process towards enhanced cooperation should proceed as quickly as possible consistent with legal process, and (iii) the creation of the Internet Governance Forum (Paragraphs 69, 71 and 72 of the 2005 Tunis Agenda for the Information Society).

Nevertheless, it is ITU’s moves towards the more narrow issues of Domain Names System (DNS) management, Internet Protocol (IP) numbering distribution and allocation, Internet root server system, cybersecurity and Internet service regulation that raise economic and political concerns to (mostly U.S.-based) Internet incumbent organizations. Among others, the Department of Commerce (DoC), the Internet Assigned Numbers Authority (IANA), the Internet Corporation for Assigned Names and Numbers (ICANN), the Internet Society (ISOC), the Internet Engineering Task Force (IETF), the World Wide Web Consortium (W3C) and the large Internet companies, who manage some key Internet infrastructure resources, in a multistakeholder environment.

Pre-WCIT Media Storm

The WCIT-12 negotiation phase received much attention from the media. Articles from Forbes, Vanity Fair, FoxNews, CNET, TechCrunch, Techdirt, CircleID addressed the treaty revision, along with statements by U.S. Ambassador David Gross, Commissioner Robert McDowell of the Federal Communications Commission (FCC), Google’s Vint Cerf. According to the latter, Russia, China, Syria, Saudi Arabia and other repressive regimes were interested in intervening and obtaining further governmental control of the Internet. He also highlighted his surprise with some Brazilian and Indian proposals, countries who are not traditionally on US watch list, but who had demonstrated interest in more regulation in international telecommunication markets, such as roaming and data traffic. Google’s Patrick Ryan stated that some ITU proposals made the Stop Online Piracy Act (SOPA) look like the equivalent of a bad hair day, and that the ITU is not fit to enter Internet Governance and regulation, due to the open nature of the Internet, which contrasts to ITU’s non-transparent state-run systems.

Online manifestos from the Center for Democracy and Technology, Electronic Frontier Foundation, Internet Society, Technology Liberation Front, AccessNow demanded more transparency and inclusion, advocating against the risks of government control and censorship that could result from a behind-closed-doors process. If approved, the new ITRs would undermine the security, stability, and innovative potential of networks worldwide.

American House of Representatives and industry associations argued that the ITU was not a truly multistakeholder environment, that repressive governments would take the opportunity to gain more control over critical Internet resources and develop fiercer regulation to artificially transfer revenues from Internet to telecommunication companies.

The WCIT-12 even resulted in its own WCITleaks webpage, where password-protected ITU documents were published to the general public, a Google Take Action against the ITU and a Mozilla kit of tools and resources to inform and mobilize the Internet community.

Several months before the conference started, it was evident that an “attention backbone” in online mobilization was formed, with larger websites amplifying the voices of less visible stakeholders.

World Conference on International Telecommunications 2012

When the WCIT-12 finally took place, on 3–14 December 2012, in Dubai, 1630 participants from 151 countries, private sector, civil society and academia met to negotiate the International Telecommunications Regulations, under the lead of Member States’ governmental representatives. And neither the ITU, ICANN, newspapers nor academia were able to change the climate of a digital cold war.

The 253-page initial working document not only contained IG-related provisions, but also proposals on human right of access to communications, security in the use of ICTs, protection of critical national resources, international regulatory frameworks, charging and accounting, taxation, interconnection and interoperability, quality of service, network neutrality, convergence, international mobile roaming and environment and climate change.

Many proposals were dropped and reshaped during WCIT-12, and the conference approved the final version of the ITRs without consensus on the wording and interpretation of key provisions related to:

  • the meaning of a right of access of Member States to international telecommunication services;
  • whether the ITRs apply only to telecommunication companies or also to Internet Service Providers;
  • whether it was sufficiently clear that the ITRs do not apply to content-related aspects of telecommunications;
  • the establishment of regional telecommunication traffic exchange points and how they distinguish from Internet exchange points;
  • the effectiveness of determining that security measures be implemented, as well as the risk of placing restrictions content carried by the Internet;
  • the role of the ITU in the narrow Internet Governance.

The conference resulted in some achievements: the active participation of various regions of the world, the broad agreement in 90% of the treaty text, the identification and discussion of key issues, and a plan for continued discussions. According to a former ITU senior official Richard Hill, however, some provisions proved to be controversial, leading to a split in the membership and sharp criticism of selected provisions. In the end, 89 Member States signed the treaty, while 55 did not, including the United States. Nevertheless, the treaty could survive and be properly implemented if the legal analysis is favored over political and economical considerations.

In his personal blog, PayPal’s Bill Smith largely disagrees with Hill’s analysis. According to Smith, Article 32 of the Vienna Convention on the Law of Treaties disfavors any interpretation that the treaty is not targeted to regulating Internet Governance matters. He seconds U.S. government concerns that even though the word “Internet” is never mentioned in the document, there are possible implications to content and free speech control, for example, in the provision that requests Member States to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services  (a long term used to avoid the Internet-related word “spam”).

Ways forward

Since Dubai, new facts and world policy events have started to show possible ways forward. The ITU takeover of the Internet did not occur, and the World Telecommunication/ICT Policy Forum 2013 (WTPF-13) amplified the message that many developing and developed countries are interested in the redistribution of Internet Governance.

The Snowden and NSA episodes pose new challenges to the U.S. government and companies in negotiating Internet Governance matters in the international scenario. Because much of U.S. criticism to the WCIT-12 process relied on the value of freedom of speech and protection of privacy online, its position has now lost some credibility. In response, other countries may be expected to act protectively, in both economic and security measures.

Brazil’s President Dilma Rousseff, after having her personal communications spied by the NSA, opened the 2013 U.N. General Assembly by stating that the United Nations should play the leading role in regulating the conduct of states in a way to respect human rights online. She also called for the establishment of new international framework to govern the Internet, inspired by piece of legislation that has been under fierce negotiation in the country (Marco Civil da Internet). Whereas Rousseff never mentioned that the ITU is the proper venue for those negotiations, back in 2009, former Brazilian President Luiz Inácio Lula da Silva suggested that the ITU should lead international cybersecurity coordination and be part other IG initiatives, such as the IGF.

Fadi Chehade, ICANN CEO, quickly reacted to Rousseff’s statement at the U.N. and suggested Brazil should host an Internet Governance world summit, in April 2014, where the internationalization of ICANN and a global framework for IG are expected to be the main themes. It is a clear effort to detract international attention from ITU’s World Telecommunication Development Conference 2014 (WTDC-14) and WSIS+10 High Level Event, which will also take place in April 2014, in Egypt. It adds another key step in the long way of Internet Governance processes towards the WSIS Review Process (WSIS+10).

The ITU will be hosting its Plenipotentiary Conference 2014 (PP-14), in October, in Korea, to review its Constitution and Convention, the international treaties that govern the entirety of the ITU, and very likely new controversial proposals by the Member States. In particular, ITU Membership will be negotiating a New Stable Constitution, the definition of the term ICT (which ultimately can determine the market that can be affected by its regulatory apparatus), the role of ITU in cybersecurity. All these factors combined can revive some countries’ impetus to expand ITU’s mandate over Internet matters.

United States alternatives

Amid the uncertainties of present IG times, some groups have advocated for a “defund the ITU” movement. As soon as Dubai was over, the North American Network Operators’ Group started a petition at the White House demanding the U.S. government to cease financial contributions to the ITU. Last September, Republicans FCC Commissioner Ajit Pai and Representative Greg Walden brought back the possibility of pulling funds from the ITU as a resource against U.N.’s Internet regulation, and Eli Dourado detailed how to do it. If this proposal gains momentum, the Internet might witness a new online mobilization campaign against the ITU.

In early October, ICANN and several major Internet organizations responsible for coordination of the Internet technical infrastructure issued a Declaration calling for the “acceleration of the globalization” of the functions carried out by ICANN and IANA due to the “strong concern over the undermining of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance.” Commentators interpreted this move as an attempt to shift control away from U.S., which may lead to the balkanization of the Internet. ICANN may thus provide more governments a means to exert greater control over Internet communications, perhaps with the argument that the U.S. government has proven itself less than trustworthy in these matters. This development poses a serious concern whether the Internet will remain the vibrant place it has been with little centralized oversight.

Cite as: Sergio Alves Jr, Internet Governance in the Age of Surveillance, Berkeley Tech. L.J. Bolt (October 21, 2013), http://btlj.org/?p=3066.
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6 Responses to Internet Governance in the Age of Surveillance

  1. Richard Hill says:

    Thank you for the reference to my work, but please note that my analysis of the ITRs was published in a very reputable, peer-reviewed law journal, the Oxford University International Journal of Law and Information Technology. My analysis shows that the objections to the ITRs are not valid from the legal point of view. In contrast, Bill Smith’s blog is just that, a personal blog, not peer-reviewed, and not published in a law journal. I urge interested parties to read my analysis and then make up their own minds regarding the validity of critcism of the ITRs.
    Richard Hill

  2. Erika Mann says:

    Well written, researched, observed and presented. Thanks!
    Erika Mann
    ICANN Board Member

  3. Sergio Alves Jr says:

    Dear Mr. Hill,

    I thank you very much for your comment. I also strongly recommend readers to go through your paper.

    Your article inspires some great deal of the WCIT analysis here, including the pinpointing of the controversial issues of the ITRs. It is the main persuasive authority for those interested in the legal matters arising from the ITRs. In particular, I appreciate your “intertextual and logical interpretation” of the treaty, it certainly facilitates the application and adoption of the ITRs by countries who desire to do so.

    As per Smith’s reference, although less academically persuasive, it is also very relevant, since it summarizes some of the arguments that U.S. and opponents to the ITRs/ITU used throughout the WCIT process. Furthermore, I also agree with him that the historical interpretation of the treaty, including the preparatory work of the conference, is a relevant tool of international law in this case.

    Abraços,
    Sérgio Alves Jr

  4. Sergio Alves Jr says:

    Dear Mrs. Mann,

    Thanks!

    Would you shed some light on what ICANN expects to achieve at the summit in Brazil 2014, please?

    Abraços,
    Sérgio Alves Jr

  5. Emilio Loures says:

    Congrats, well balanced and informative. We are yet to see the end of it. Important events to come.

  6. Sérgio Alves Jr says:

    Thanks, Emilio.

    You’re also very familiar with these matters.
    We’re all curious of the following steps.

    Abraços,
    Sérgio

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