Tag: Uncategorized

On the Broadcast Treaty In the Information Society Context

by on Feb.25, 2015, under Uncategorized

———- Forwarded message ———-

From: Seth Johnson <[protected]>
Date: Wed, Feb 25, 2015 at 4:43 PM
Subject: Important Followup on the Broadcasters Treaty — Fwd: Question for today’s debrief on the SCCR
To: “Johns, Richard B (Geneva)” <[protected]>, “Perlmutter, Shira” <[protected]>, “Schlegelmilch, Kristine (Geneva)” <[protected]>, “Zoller, Julie N” <[protected]>
Cc: Manon Anne Ress <[protected]>, Jamie Love <[protected]>, “Reves, Todd” <[protected]>, “Shapiro, Michael” <[protected]>, “Gordon, Marian R” <[protected]>, “Holiday, Cecily C” <[protected]>, Doreen McGirr <[protected]>, Justin Hughes <[protected]>

 

Hello Richard,

I am forwarding your note to me with the following reply to Shira Perlmutter and others who were originally included in this query, now adding Julie Zoller and other contacts at the State Department.  I am also cc’ing Justin Hughes, who coordinated an informal Round Table discussion on the broadcasters treaty at the US PTO some time back.

I apologize for the duration of time you will need to read this.  As I state below, I have tried to be succinct.  I am drawing some very important connections among several elements that are presently moving into place at the same time.

Your comments are stated in general terms regarding the CSTD/ECOSOC WSIS+10 and Internet Governance Forum (IGF) proceedings, and they are not responsive to the concerns I raised with Shira, which have to do specifically with the broadcasters treaty, and international copyright-related policymaking as it affects the Internet in general, particularly in relation to the WSIS+10 Review and the intergovernmental framework for the Information Society being deliberated at the United Nations this year.

Will we have the opportunity to engage on the topic of the broadcasters treaty and retransmission consent, by an open and participatory process, before the UN General Assembly’s intergovernmental negotiations addressing the status and future of the Information Society project in the latter half of this year?

To my recollection, Shira’s note to me of December 10 is the first mention I have seen of the US using retransmission consent as a regulatory “national implementing legislation” basis for the broadcaster’s treaty.  Has this specific notion, of applying retransmission consent under the Communications Act to the Internet and using that as the implementing legislation for the broadcaster’s treaty, been subject to any kind of appropriate public disclosure and discussion?  I believe there would have been far more concern expressed if this had been the case, and the connection had been explicitly understood.

When we see the connection between retransmission consent, applied to the Internet domestically, and the broadcaster’s treaty, to be established internationally, we see that this arrangement reflects a separation between content creation and telecommunications that is built into the Information Society project’s foundations. This separates copyright established by international processes from aspects of domestic telecommunications policy that have assured that online innovation would not be impaired by liability for copyright.

This is a very different relationship to copyright than we have long had on the Internet, hooked to an international framework that may more readily support the types of processes we have already long seen pursuing the enactment of excessive modes of copyright policy in numerous international fora.

As you know, under the DMCA in the United States, anybody can become a peer on the network of networks, without liability for transmitting packets that happen to make up copyrighted works, so long as they comply with the DMCA’s notice and takedown provisions.

The broadcasters treaty proposes to establish a limited right related only to signals retransmission (Shira calls this a “single-right approach” in her email below), and retransmission consent establishes liability only for retransmitting broadcasts.  Each of these is hard to address on its own, and indeed they are hard to fully understand when they are taken in isolation.

However, we see the overall schema clearly when we examine the framework being set up by the Information Society project, and the approach the US is presently promoting in relation to the network.

Among the rationales we have regularly heard voiced in the policy discussions surrounding the Information Society project is a stance opposing regulation of content — typically phrased to identify this stance with an opposition to regulating the Internet.  However, the Internet is already separated from content creation in the foundational elements of the Information Society project.  The Internet is a subcategory of telecom and explicitly separated from content creation in the performance measures the project uses to measure its progress, and in the industry categories that underly the Technical Barriers to Trade Agreement, the international instrument that is to serve as the basis for the conformance and interoperability assessment regime being set up as a key function within the Information Society.  These definitions are foundational, underlying all aspects of the project.

This separation means that within the framework for the Information Society, international processes for copyright policy are freed up to be pursued independently of telecom and the Internet.

This framework is also consistent with the approach the US is taking to domestic policy, set to be revealed by the FCC tomorrow morning — which is to all accounts focused on interconnection policy, particularly with edge providers such as Netflix, and not on reestablishing under Title II the permissionless and flexible platform for innovation that originally arose within a context enabling anybody to become a peer in the network of networks and interoperate freely among themselves based on an open physical layer — and protection from liability for copyright under the DMCA.

What this separation means in practical terms is that despite the Information Society’s frequent appeals to convergence as the dynamic that drives our need to engage in international policy processes for the Internet, it is not a dynamic that will apply to copyright.  At a time when many have been struggling for years to get policymakers to adapt copyright to the Internet, the broadcaster’s treaty, when considered in light of the Information Society project and the present approach to the network being promoted by the United States, is apparently about adapting the Internet to international copyright in all of the outlandish forms it has taken on.

The United States’ legal tradition has long been founded on a basic understanding that post-Enlightenment, democratic society is an expression of the power of published information.   Thomas Jefferson described this perfectly in his famous letter to Isaac McPherson on August 13, 1813, which applies just as much to copyright as it does to the patent policy he discusses: http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

The US telecommunications tradition understands that the airwaves are free.  The US tradition understands that factual elements of published, copyrighted works are free for the taking. There’s a reason why the US understood the need to empower independent providers and end users to take part in the new online medium of the Internet with the protections of the DMCA, and it has to do with how the US tradition understands how shared information promotes the advancement of humankind, by its very nature.

This is why Aereo thought its model made sense.  This is why Grokster (and many others) thought that the long-honored Betamax ruling would empower us to innovate online and create new decentralized, collaborative and interconnected modes of using and sharing information, that we would adapt copyright to the Internet and not the
other way around.  Instead of adapting copyright to the new capacities brought by the Internet, instead of working to making Aereo possible, and instead of correcting the corrosive force of new conceptions, including new theories of secondary liability or of the supposed necessity for ridiculous copyright terms, or the instituting of anti-circumvention policies that allow others to assert a kind of private right of prior restraint on our own devices, and many others that have arisen in response to the profoundly dynamic platform the Internet has brought to all of us — and which actively dishonor the greatest traditions of enlightened copyright policy — we appear to be recalibrating our tradition to render it subject to a new international framework that empowers the very types of processes we have already seen repeatedly attempting to exploit the unique nature of the international policymaking arena to empower the enactment of misguided conceptions of copyright.

Aside from that last bit on the US tradition, I have tried to draw these concerns somewhat briefly to focus the commentary properly, and have provided no clarifying citations.  I trust that I will be able to clarify and support these points in follow-up.

I ask that you please address my concerns so that we can take up the implications of the broadcaster’s treaty prior to the fulfillment of the WSIS+10 Review, in light of the Information Society framework, and in light of the redefinition of the network and of how copyright applies there as well as in the approach to the network that the US is promoting both domestically and abroad.  The broadcaster’s treaty should be taken up fully and frankly, with all the pieces before us, especially at this stage of international processes related to the Internet.

These matters should be taken up preferably before ECOSOC’s mid-year meeting, at which it will hand off their final WSIS+10 Review outputs for the UN General Assembly’s intergovernmental negotiations in the latter half of the year.

If you are willing to take up these concerns at the Internet Governance Forum in September, that would imply that the implementation of the broadcaster’s treaty on the basis of retransmission consent will not be a conclusion already built into the framework for the Information Society prior to that point, and so that would certainly be deeply appreciated.  However, if we address it “in form,” based on what the WSIS+10 Review supposedly represents in a process of which the US is apparently in support, then the appropriate period for the question in relation to the Information Society would be prior to ECOSOC’s final contributions from the WSIS+10 Review in July.

 

Regards,

Seth Johnson

———- Forwarded message ———-
From: “Johns, Richard B (Geneva)” <[protected]>
Date: Thu, Dec 11, 2014 at 7:00 AM
Subject: RE: Question for today’s debrief on the SCCR
To: “[protected]” <[protected]>
Cc: “Schlegelmilch, Kristine (Geneva)” <[protected]>

Hi Mr. Johnson,

Kristine Schlegelmilch forwarded your email to me, as I am responsible
for the U.S. Mission’s participation at IGF and CSTD, and general
Internet governance engagement.  I wanted to provide a response to
your question about whether the U.S. Government will “be taking part
in these forums to provide the opportunity for broader
multistakeholder discussion of and engagement on the US’s
activities…prior to the conclusion of the Information Society
project’s 10-year review.”   The U.S. Government has been extremely
active in engaging in all of the meetings that you mentioned.  In
fact, at the most recent IGF meeting in Istanbul, we had approximately
40 U.S. Government participants engaged in the discussions, including
the State Department Undersecretary of Economic Affairs and two U.S.
Ambassadors.  We plan on being similarly engaged at the 2015 IGF in
Brazil.

We have also been active participants in the CSTD WSIS 10-year review.
The U.S. held the CSTD Chairmanship last year and holds a
Vice-Chairmanship this year.  The Intercessional was held in Geneva
two weeks ago, where the 200 page WSIS Review document was presented
and discussed.  Yesterday, we held a broad, multistakeholder meeting
to discuss our collective input into the WSIS Review report.  We
highly value and strongly encourage contributions to these processes
from the private sector, academia, individuals, and NGSOs and look
forward to continuing these discussions in the lead up to the
High-level WSIS meeting which will be held in New York next year.
While Kristine is our specialist in IPR issues, don’t hesitate to
contact me if you have any specific concerns that you would like to
raise or questions about our engagement related to the World Summit on
the Information Society, CSTD or IGF.

Best regards,

Richard

Richard Johns
Economic and Science Affairs
U.S. Mission to the United Nations
+41 (0)22 749 4647 Office
+41 (0)22 749 4883 Fax

—–Original Message—–
From: Seth Johnson [mailto:[protected]]
Sent: Thursday, December 11, 2014 2:56 AM
To: Perlmutter, Shira
Cc: Jamie Love; Manon Anne Ress; Schlegelmilch, Kristine (Geneva);
Reves, Todd; Shapiro, Michael
Subject: Re: Question for today’s debrief on the SCCR

Thank you Shira, I will await further word.

Seth

On Wed, Dec 10, 2014 at 6:55 AM, Perlmutter, Shira
<[protected]> wrote:
> Thanks Seth.  Within the USG, the State Dept has the lead on this.  I’m copying Kristine, who can give you more information on this.  But please be assured that the positions we are taking at WIPO, including on the proposed broadcast treaty, are the product of extensive interagency discussion, including the State Dept.  And our single-right approach is intended to be consistent with existing US law, primarily through the retransmission consent provisions of the Communications Act.   In our view, it would not require any new form of government regulation.
>
> Best,
> Shira
>
> ________________________________________
> From: Seth Johnson <[protected]>
> Sent: Wednesday, December 10, 2014 12:33:47 PM
> To: Perlmutter, Shira
> Cc: James Love; Manon Ress
> Subject: Question for today’s debrief on the SCCR
>
> Dear Ms. Perlmutter:
>
> You are doubtless aware of the activities presently underway taking up
> numerous policy areas related to the Internet and developing of some
> form of “Internet Governance” in relation to the Information Society
> project, represented most prominently by the outcomes of the 2003 and
> 2005 Geneva and Tunis World Summits for the Information Society
> (WSIS).
>
> The US has generally promoted a multistakeholder approach and avoided
> a predominantly intergovernmental approach to Internet-related policy
> areas in these processes.
>
> The US has also generally asserted an opposition to expanding the
> ITU’s scope to the Internet through proposals that would amount to
> regulating of content, rather than telecommunications as such.  We
> might see this distinction reflected in the Information Society
> project’s performance measures, which are based on ISIC (International
> Standard Industrial Classification) categories which distinguish
> content-related industries from telecommunications.
>
> However, while the project’s performance measures do not include
> content creation, policies that the US is pursuing related to
> copyright, including the broadcasters right, are intergovernmental
> policies related to content that can easily affect the nature of the
> Internet platform.
>
> The Information Society project will be completing a 10-year
> assessment of its progress in 2015, beginning with a review by the
> Commission on Science and Technology in Development in the first half
> of the year, followed by an intergovernmental process conducted by the
> President of the General Assembly to determine the project’s status
> and how it will proceed after 2015.  This period of review of
> implementation and followup represents the last opportunity before the
> UN GA’s intergovernmental negotiations to address how well the project
> is addressing the relationship between the project and the Internet.
> The Internet Governance Forum will also provide a forum for
> multistakeholder engagement in Internet-related policy.
>
> Will the US be taking part in these forums to provide the opportunity
> for broader multistakeholder discussion of and engagement on the US’s
> activities on copyright and other related exclusive rights policies,
> prior to the conclusion of the Information Society project’s 10-year
> review?
>
>
> Sincerely,
>
> Seth Johnson

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Letter to FCC on Net Neutrality in Information Society Context

by on Nov.09, 2014, under Uncategorized

(Statement also posted here)

November 8, 2014

c/o Marlene H. Dortch, Secretary
Federal Communications Commission
445 Twelfth Street, SW
Washington, DC 20554

Comments on Network Neutrality in the Context of the International Information Society Project

Dear Commissioners:

In the following open letter, filed ex parte in the FCC’s Open Internet proceeding and addressed to the global Internet community, we address the issue of network neutrality in relation to the international Information Society project.

By addressing this relationship, we hope to amplify our call for the FCC to support the policy environment that originally gave us the open and neutral Internet. This was the policy environment that existed in the US until just prior to the Information Society project.

Our chief concerns are for elements of the Information Society project’s underlying design which support vertically integrated telecommunications environments, without clearly providing for policy environments that support open and competitive access by independent providers at the physical layer, and for the project’s effects on the universal general purpose interoperability of the Internet as we know it.

The Internet’s design to support general purpose interoperability among autonomous networks in the network of networks is the original basis for the neutrality of the Internet, and competitive access at the physical layer is the policy environment that originally established the network of independent and interoperating networks that gave us the open Internet.

The FCC’s overall approach to telecommunications policy over the last decade based on vertical integration, and recent FCC initiatives such as the IP transition, reflect these areas of concern in the Information Society project, and US State Department initiatives also intersect with the Information Society project’s system of international decisions enacted within the UN system and other international agencies.

Network Neutrality and Vertical Integration

In his recent viral commentary, John Oliver describes network neutrality as the reason why the Internet is “a weirdly level playing field.” This result may be produced in a couple of different ways, based on two conceptions of network neutrality.

Network neutrality can denote either 1) the application of a rule requiring networks to treat packets equally within themselves; or 2) the technical principle whereby interoperability among autonomous networks is enabled by transmitting packets between them without regard for application.

Renewed concerns for network neutrality in the first sense have arisen in the US and globally in response to the FCC’s plan to make provisions for fast lanes in its Open Internet policy, and in the wake of Comcast’s and Verizon’s recent moves to initiate interconnection deals directly with the edge application provider Netflix rather than accepting the data their users request from Netflix via backbone intermediaries.  We note that these developments reflect the circumstances of the present policy approach in the United States, which is characterized by a few incumbent network providers who have been allowed to treat physical infrastructure as assets nearly solely under their private control (i.e., the physical infrastructure is “vertically integrated,” treated as a supply that has been acquired as part of a private production process).  In this environment, network neutrality cannot help but be approached in the first sense, as a rule addressing paid prioritization, to be imposed within the networks of a few dominant providers that exercise a controlling role in the telecommunications space, rather than in the second sense, as the kind of policy relevant to a network of autonomous, competing networks.

In point of fact, however, the Internet was originally unleashed in the United States under a policy approach that assured competition at the physical layer, creating an environment that enabled thousands of independent network providers to readily enter the network of networks and interoperate among themselves, in accordance with network neutrality in the second sense.  The Internet was designed to solve the problem that arose in this context, of how to interoperate among numerous autonomous networks, and this was the original basis of the openness of the Internet.  The policy approach that enabled this dynamic to arise was the official position of the US at least until 2000, when the FCC recommended open access as the policy that would best support the Internet in Europe (see FCC Press Release, United States Urges EU to Continue Progress in Opening Communications Market To Competition, 2000 FCC LEXIS 1383 (2000), available at: http://www.fcc.gov/Bureaus/International/News_Releases/2000/nrin0005.doc).

However, roughly concurrently with the beginning of the Information Society project – which might be designated by the 2003 Geneva and 2005 Tunis World Summit for the Information Society (WSIS) events – the FCC has implemented a federal telecommunications policy that not only deregulates Internet information services, but also the physical infrastructure carrying telecommunications data.  This enables the incumbents to treat the infrastructure as one would a private asset in any other type of market, and thereby neutralizes the legal foundations of the Communications Act in public franchise law and common carrier obligations, which up until then had assured competitive access to right of way infrastructure by independent Internet providers.

For whatever reason, the underlying premises of the Information Society project currently reflect this change in the policy environment which we have seen in the US.  The ITU’s definitions for the performance measures used to measure the progress of the Information Society draw no distinction between individual networks that may implement specialized services through more specialized treatment of packets within themselves, and open Internet connectivity, constituted of a network of autonomous network providers interoperating among themselves.  The measures are based on telecommunications industry categories as defined in the International Standard Industrial Classification (ISIC), Rev. 4, which reference the Internet solely in relation to a vertically integrated context (“provision of Internet access by the operator of the wired infrastructure”) and not in relation to shared physical infrastructure (“purchasing access and network capacity from owners and operators of networks and providing telecommunications services using this capacity”).

Current FCC Commissioner Tom Wheeler appears to advocate an approach to policy consistent with vertical integration, and with the framework articulated by Joseph Farrell and Philip J. Weiser in 2003, wherein the efficiency advantage of a vertically integrated network platform is weighed against impacts that the platform provider’s practices may have on application markets dependent on their platform. In Ensuring an Open Internet Now and for the Future, Wheeler states that there are likely to be a few broadband networks serving to support essential services for society, and that this condition means they are likely to exercise market power.  He characterizes net neutrality in terms of balancing concerns of producers and consumers within this type of context, such as that network operators may make moves that undermine the value of the network, or that regulation by the FCC might cause economic harm to network operators or inhibit their ability to offer improved service.

Network Neutrality and Universal General Purpose Interoperability

Conformance and Interoperability:

The neutrality of the Internet’s design is based on the way it supports a maximally flexible platform between and across independent networks. Its neutrality is sustained by the need to interoperate across autonomous networks and to connect end users in whatever they may be doing.  With its Conformance and Interoperability program, the US and the Information Society project are effectively pursuing a conception of interoperability that may supplant this notion of universal general purpose interoperability – which the Internet is already designed to support – replacing it with a notion of interoperability as conformance with policy.

This program is a key part of the intergovernmentally-endorsed program of action issued by the ITU at the 2010 Plenipotentiary Conference, now being updated at the 2014 Conference, and is geared to support the WTO’s Technical Barriers to Trade Agreement (TBTA).

The TBTA aims at ensuring that technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to international trade. It encourages Member States to base these matters on international standards and develop conformity assessment procedures to generate confidence that products conform with applicable technical regulations or standards.

Among our concerns here is the fact that Conformance and Interoperability testing might become a basis for enabling government or privileged providers to promote new types of networks by appealing to intergovernmental standards, without distinguishing them from the way the Internet operates or recognizing the tradeoffs these types of networks bring as compared to open internetworking between independent networks.

We see the Conformance and Interoperability program represented in the US’s submission to the WTDC for a Study Question on Conformance Testing, and as part of its program for the Plenipotentiary Conference.

WTSA Resolution 76, issued at the 2012 World Telecommunications/ICTs Standards Assembly (WTSA), articulates the relationship of conformity assessment to the Technical Barriers to Trade AgreementITU-T Recommendations X.290-X.296, on ISO conformance testing, Plenipotentiary Resolution 177 and WTDC Resolution 47, on Conformance and Interoperability, and WTSA Resolutions 17 and 44 and Plenipotentiary Resolution 123, on bridging the standardization gap.

As already noted in connection with vertical integration, the indicators by which the Information Society project’s progress is being measured are based on the same ISIC definitions that underly the Technical Barriers to Trade Agreement, linking them to both vertically integrated networks and a new conception of interoperability.

Identifiers Infrastructure:

ITU processes have also issued numerous resolutions articulating pieces of an inter-governmentally endorsed technical infrastructure for identifiers that may support the validation or enforcement of various kinds of policy.

Significant pieces of this framework were issued as resolutions by the 2012 WTSA.  They were characterized there as “merely technical” and thereby appropriately within the scope of the WTSA and ITU’s Standardization Sector (ITU-T).  However, they have been supplemented this year with more substantive enactments issued by the recent WTDC under ITU’s Development Sector (ITU-D), and like the Conformance and Interoperability program, these WTSA and WTDC resolutions fulfill directives from the 2010 ITU Plenipotentiary Conference, and therefore enjoy an intergovernmentally endorsed status.

If we do not examine how well the framework enacted by the ITU’s Plenipotentiary Resolutions actually represents the nature of the Internet, governments, including the US, will easily appeal to this framework as representing basic functions to be treated as a foundation for international connectivity, and they may thereby make it difficult to reclaim the original sense of interoperability of the Internet as they claim their new conception under the name of Internet Governance.

Depending on how they are applied, these resolutions providing technical support for identifiers may affect not only open, general purpose technical interoperability, but also the free flow of information, the flexibility of the platform, and its support for interactive and collaborative uses of information published online.

Our concern here is that before these provisions should be treated as components built into the design of international connectivity, their presence and the implications they may have for the nature of the Internet, as they may be used to build support for policy into networks, should be noted and given full opportunity for review prior to being treated as established elements of international networks.

In the US, we see work underway on identifiers policy at the FCC, presented as the technology behind the IP Transition, currently articulated largely in relation to policies applicable to phone numbers. In the US Congress, bills such as the anti-spoofing bills HR 3670 and S 2787 may well serve as a part of a national implementation to support this international system of identifiers.

The most direct provisions for identifiers are in WTSA outputs. WTSA 20, on allocating and managing of international numbering, naming, addressing and identification resources (NNAI), references the integrity and misuse of numbering resources, procedures for allocating and managing international NNAI articulated in ITU-T E-F-Q- and X-series Recommendations, and a call to assure Member State sovereignty in relation to country code NNAI plans and ITU-T E.164 (ENUM).  Resolutions on alternate calling procedures such as WTSA Resolution 29WTDC Resolution 22, and Plenipotentiary Resolution 21 address concerns for origin identification and misuse of resources.

WTSA Resolutions 474849 and 64 deal with addressing-related concerns (ccTLDs, IDNs, ENUM and IPv6). Along with WTDC Resolution 63, on IPv6 and address allocation, these resolutions reference Plenipotentiary Resolutions 102, on ITU’s role in international Internet-related public policy, including management of Internet resources such as domain names and addresses, 133, on the role of Member States in IDNs, and 180, on the transition to IPv6.  These resolutions are also referenced as technical supports for the Internet via Plenipotentiary Resolution 178 and WTSA Resolution 75.

Resolutions on Cybersecurity reference ITU-T Study Group 17‘s work on public key infrastructures, identity management, and digital signatures, including WTSA 50 and WTDC 45.  These references reflect ITU-T work on discovery of identity management information in ITU-T Recommendation X.1255.  The theme of confidence and security in ICTs, as voiced in these resolutions and Plenipotentiary Resolutions 130174 and 181, may also implicitly reference the use of identifiers, and the facilities for validation and enforcement that may be built around them.

Finally, in the context of Conformance and Interoperability, the reference in Plenipotentiary Resolution 177 to concerns in developing countries regarding counterfeit equipment may also designate a function that may be served, in connection with the TBTA, through validation and enforcement based on identifiers.

In Conclusion

We urge the FCC to reestablish the policy environment that gave us the Internet and to reconsider the decisions made at the outset of the Information Society project which have led to a thoroughly misguided domestic telecommunications policy environment. An international policy framework designed to support the type of network environment presently projected in the Information Society project’s enactments is not consistent with the policies that assured that independent networks could readily enter the network of networks in the United States and freely interoperate among themselves.

We are not calling you to enact a sweeping redefinition of broadband, as the American Legislative Exchange Council (ALEC) might call it; we are asking that you reaffirm the policy framework that originally gave us the Internet.  And we are asking that you not allow a commitment to the international Information Society project as it is presently articulated to mislead the US into recasting the very bases of the US telecommunications tradition to which we owe the rise of the open Internet.

Sincerely,

(Affiliations listed for identification purposes only)

Janna Anderson, Director of the Imagining the Internet Center, Elon University
Amelia Andersdotter, FITUG, e.V. (http://www.fitug.de/)
Karl Bode, Freelance technology writer, editor of DSLreports.com
Robin Chase, Founder, Zipcar, GoLoco, Buzzcar, Veniam ‘Works
Juan Carlos de Martin, Faculty Co-director, Nexa Center for Internet & Society at Politecnico di Torino
Karl Fogel, QuestionCopyright.org
Gene Gaines, Gaines Group
Lucas Gonze, XSPF.org
Robert Gregory, BSEE, UCB, Non-Profit IT Director and IP Network Evangelist
Paul Hyland, Education Week
Seth Johnson, Information Quality Specialist
Bruce Kushnick, Executive Director, New Networks Institute
Dean Landsman, LCG
Jon Lebkowsky, President, EFF-Austin
Michael Maranda, Co-Founder, Chicago Digital Access Alliance
W. Scott McCollough, Esq.
Sascha Meinrath, Director, X-Lab, Founder, Open Technology Institute
John T. Mitchell, Interaction Law
Hunter Newby, CEO, Allied Fiber
Bruce Perens, co-founder of the Open Source movement in software
David P. Reed, Ph.D., Internet Pioneer
Chuck Sherwood, Principal, Community Media Visioning
Dana Spiegel, Executive Director, NYCwireless
Robb Topolski, Private Individual, Networking Consultant
Brough Turner, Founder, netBlazr Inc.
Paul Vixie, CEO, Farsight Security
John G. Waclawsky, Ph.D., Technology Advisor and Consultant, Chicago and Washington
David Weinberger, Ph.D., Senior Researcher at Harvard Berkman Center for Internet & Society
John Wilbanks, Chief Commons Officer at Sage Bionetworks
Brett Wynkoop, First provider of public Internet access in New York City

Respond to:

Seth Johnson
601 West 174th Street, Suite 3D
New York, NY 10033
[protected]

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Letter to UN GIS on WSIS+10 Review

by on Jun.12, 2014, under Uncategorized

(Statement also posted here)

———- Forwarded message ———-
From: Seth Johnson <[protected]>
Date: Thu, Jun 12, 2014 at 7:39 AM
Subject: Critical Comments on WSIS+10 Review
To: Hamadoun Touré <[protected]>, [protected], [protected], [protected], [protected], [protected], [protected], [protected], [protected], [protected], ITU Development Secretary General <[protected]>
Cc: Houlin Zhao <[protected]>(, various UN GIS contacts)

(Please see attached pdf of the following letter)
Letter to WSIS+10 on Critical Impacts

Dear Secretary-General Touré, UNGIS members and other participants and observers of the 2014 WSIS+10 Review,

We are writing to note our concerns regarding the WSIS+10 Review, since the process has not admitted critical contributions in the last two months, including the inputs of Seth Johnson, who sought to take part in the WSIS+10 Review beginning in March. While he was eventually accredited for the May MPP and the present HLE/WSIS Forum meeting, his submitted comments have not been admitted into the process.

Seth’s contributions describe how the usage of key terms at the heart of the WSIS project often work against its own goals as expressed in the Action Lines. A candid review of the WSIS project must take this type of input into account, and these concerns should be understood in the next phases of the project, as the UN considers the course the project will take after this year.

Seth identifies new priorities for the project based on its tendency to encourage confusion of specialized services with the open Internet, its working to implement a form of interoperability based on conformance with policy without recognizing the maximal form of interoperability already established between networks through the Internet protocol, and its supporting vertically integrated telecommunications environments while not adequately recognizing the role of competitive access at the physical layer in supporting the open Internet. He focuses on listing the numerous ways in which these aspects of the project impact the Action Lines, including effects in important areas of concern such as empowerment, digital inclusion and capacity building; development, competition and the enabling environment; openness, flexibility and innovation; governance and cybersecurity; rights; and other areas.

We restate Seth’s comments below, in the form of an open letter to the UN GIS and the broader community of WSIS project participants, placing his comments under useful headings and adding a few more comments based on his analysis of the performance measures that the WSIS project is using to quantify its progress. We believe that future plans for the WSIS project should reflect these considerations.

The following paragraphs relate to the questions in the “Form 1” submission form that participants in the WSIS+10 Review used for their initial contributions to the process, and we have tagged each paragraph with the numeric codes that correlate with the relevant questions from that form.

Recommendations

Key Challenge: We recommend that the WSIS project act to secure the open Internet by incorporating means for recognizing impacts on the Internet’s key characteristics as it proceeds to facilitate the implementation of ICTs. (b1b)

Vision for Disadvantaged Groups: As a vision for addressing the needs of disadvantaged groups, we recommend that the project assure that the way the Internet empowers end users and independent providers be secured by a process that incorporates recognition of the Internet’s key characteristics. (b1c)

Priority Implementation Issue: We recommend that the project pursue the establishing of common understanding of key characteristics of the Internet in order to set up systems to recognize impacts on its basic nature and advantages. (b2c)

Improving Monitoring and Evaluation: We recommend that monitoring and evaluation be improved by implementing performance measures that reflect the distinction between open Internet and specialized services. (b3a)

New Priorities and Objectives: Our review of the WSIS project reveals critical areas for new priorities and objectives in relation to 1) Action Line C2 (IC Infrastructure), wherein the project is acting to replace open Internet with specialized service networks without recognizing the difference; 2) in Action Line C5 (Confidence and Security in ICTs), wherein the project is working to achieve confidence on the basis of interoperability based on conformance with policy without acknowledging the profound degree of confidence that has already been achieved through the maximally flexible, general purpose form of technical interoperability made possible across networks by the Internet Protocol; and 3) in Action Line C6 (Enabling Environment), wherein the project is framed in terms consistent with policy environments that support vertically integrated telecommunications contexts without recognizing that environments that support competitive access to physical layer infrastructure enable a context of competing and autonomous networks interoperating among themselves to arise. (b2a2, b2a5, b2a6)

Priority Focuses, Goals and Targets: The priority focuses, goals and targets we recommend for the WSIS project reflect the above new priorities: 1) identify modalities for coexistence of open Internet with specialized services, assuring the two are not conflated; 2) before proceeding to operate under a general principle of “Internet Universality” such as UNESCO recommends, first incorporate recognition of two types of interoperability into the project: interoperability in the sense of conformance with common policy, whether within or across networks, and interoperability in the sense of technical, general purpose interoperability that the Internet Protocol already makes possible between networks; and 3) address the enabling environment with explicit recognition of competitive access to physical layer infrastructure in addition to policy contexts that support vertically integrated telecommunications environments. (b3b)

Observations

We observe as a special comment that in general the WSIS project encourages a confusion of the Internet with IP-based networks in general, and it therefore enables a movement toward implementing networks to support ICTs that may establish practices and policies which may have adverse impacts on the openness, flexibility and neutrality that arise naturally in an Internet platform made up of competing and interoperating autonomous networks. (b4)

The following paragraphs enumerate trends that arise in relation to the Action Lines as a result of the WSIS project’s failure to distinguish the Internet from other types of IP-based networks.

Empowerment, Digital Inclusion, Capacity Building:

If the difference is not recognized between what the open Internet platform that arises among interoperating autonomous providers makes possible, and the capacity for specialized services that individual providers may implement within their own networks, then the outcome of the Information Society project may easily be to supplant the type of empowerment and digital inclusion that the Internet is designed to bring, replacing it with narrower options that other types of connectivity may entail, with pervasive effects on Action Lines C2, C3, C4, C8 and C11. (b2b2, b2b3, b2b4, b2b8, b2b15, b2b18)

Failing to recognize the empowerment of end users and of independent providers made possible by open Internet connectivity will lead to overlooking of effects on self-determination, autonomy and independence of communities such as the young people, women and girls, nomadic and indigenous peoples, and communities residing in rural and underserved regions which Action Line C4 references, or of the older population, persons with disabilities, children and other disadvantaged groups referenced by Action Line C2. (b2b2, b2b4)

The empowerment of end users made possible by an open Internet platform made up of autonomous providers interoperating among themselves is of a different character from that which managed service frameworks enable within their individual networks, and from that which may be expected in vertically integrated telecommunications regimes such as we find in the United States. The types of ICT applications that would be developed in all the categories covered by Action Line C7 if they are not based on the open platform would reflect this same difference in empowerment, and indeed end users would be less able to freely develop these applications themselves. This concern also relates to the nature of the national, regional and international “broadband network” infrastructure that Action Line C2 advocates pursuing as the “essential foundation” for digital inclusion in the Information Society. (b2b2, b2b7, b2b8, b2b9, b2b10, b2b11, b2b12, b2b13, b2b14)

Conceptions of network types implied in Information Society initiatives will affect access to information, cultural identity and diversity, and international cooperation as envisioned by Action Lines C3, C8 and C11. (b2b3, b2b15, b2b18)

These conceptions will affect the extent of empowerment that would apply toward the calls in Action Line C8 to promote the production of cultural works and local cultural industries, local community media, local heritage and biological diversity, support for rural and isolated communities, and local development for disadvantaged, vulnerable, non-literate and disabled communities. (b2b15)

They will also affect the kinds of best practices that would be recognized for promoting cultural and linguistic diversity and the ways in which the capacity for indigenous peoples to develop works in their language would be enhanced as advocated by Action Line C8. And the role of diverse, local communities could be altered as the public/private partnerships to promote cultural diversity, local and national works, and “ICT-based works” that C8 encourages, interact with policy and regulatory contexts associated with network infrastructure, potentially producing new formulations of the role of the government and private parties and of the nature of the telecommunications regime. (b2b15)

The nature of the network will affect the content of the programmes for capacity building, lifelong learning and universal education, including the substance of courses in public administration, the nature of the qualifications of ICT experts, and the role to be played by the libraries, multipurpose community centers, local ICT training centers, and public access points advocated by Action Line C4. Conceptions of the network will also have impacts on Action Line C7’s promotion of e-learning and e-science in relation to qualifications of ICT experts, accessibility and affordability of scientific information, the effective use of scientific information, and the role of universities and research institutions. (b2b4, b2b9, b2b14)

Development, Competition, the Enabling Environment:

A failure to recognize the characteristics of the Internet in the Information Society’s initiatives will affect the goals of building confidence and security in relation to the enabling environment for development as called for by Action Line C6, given that understandings of what constitutes a pro-competitive policy, legal and regulatory context, and what appropriate incentives are, may reflect the characteristics of other types of networks. (b2b6)

This includes the types of national policies for promoting investment in infrastructure and new services called for in Action Line C2, notably the incentivizing of infrastructure investment by treating privileged access to the physical layer as a “supply” vertically integrated with the production processes of higher layer services offered by telecommunications incumbents, or the defining of policy frameworks associated with the term “broadband.” These approaches may enable various forms of price differentiation or tiers of service that can be readily implemented within individual intranets, but not across autonomous internetworking providers. (b2b2)

The types of commercially negotiated transit and interconnection arrangements for global connectivity that Action Line C2 urges pursuing could supplant the unique strengths and advantages of the Internet if its characteristics are not delineated, and the advocating of “objective, transparent and non-discriminatory parameters” for connectivity in Action Line C2 could serve to replace recognition of how the basis of the Internet in competitive interoperation among independent providers can serve inclusivity by assuring the openness of the platform is maintained by competitive pressure. (b2b2)

Action Line C7 seeks to support sustainable development and diverse applications for public administration, business and numerous areas of life that may be benefited by the Information Society. If policies for promoting development of infrastructure and services are based on vertical integration, this may support the sustainability of that type of network, but it will not sustain the open Internet. End users would be less able to freely develop applications themselves in a managed service network or a vertically integrated telecommunications context, and the diversity of types of ICT applications that would be developed and supported in all the Action Line C7 categories would be adversely affected if they are not based on an open platform. (b2b7, b2b8, b2b9, b2b10, b2b11, b2b12, b2b13, b2b14)

The effects on e-business and e-employment in terms of economic growth, opportunities, productivity, well-being, poverty, international trade, investment and innovation, and assistance to SMEs, as called for under Action Line C7, will vary depending on the flexibility and openness of the network. (b2b8, b2b11)

Failing to recognize the nature of the Internet could affect not only the type of connectivity that would be made available in service of Action Line C11’s calls for universal access and bridging of the digital divide, and for international cooperation on infrastructure development projects, but also the nature of the public-private partnerships also called for by Action Line C11. In policy and regulatory contexts that do not promote competitive access to the physical layer, as we find in contexts that maintain vertically integrated telecommunications environments, the promotion of public-private partnerships can tend to entrench that pattern if those arrangements do not incorporate appropriate recognition of the role of public oversight of shared physical layer infrastructure. (b2b18)

Openness, Flexibility, Innovation:

The openness and flexibility of the Internet platform is supported by competitive access at the physical layer, since competing providers must transmit packets in a general purpose manner in order to interoperate and provide global connectivity to their users. As a result our confidence that the platform will support our ability to innovate can be affected deleteriously if other types of networks are employed to serve public security purposes through a core authority without recognizing the impact those means would have on the Internet. (b2b5, b2b6)

Some types of incentives for infrastructure development may be built on capacities made possible in managed service frameworks (such as discrete tiers of service allowing differentiated price schemes), or that may be enabled by a regulatory environment that allows incumbents to treat the infrastructure they install at the physical layer as a private asset supplying a vertically integrated production process. Our confidence that the platform will support innovation can be undermined in contexts driven by these approaches to encouraging development, which are distinct in nature from an approach based on an Internet platform among autonomous providers who drive demand for buildout through independent innovation in services as they compete and interoperate at the physical layer. (b2b6)

Policies associated with document identifiers and electronic authentication of transactions can interfere with the openness and flexibility of the Internet platform if their impacts on its collaborative and interactive attributes are not properly appreciated. (b2b5)

Governance and Cybersecurity:

A failure to address the nature of the Internet as distinct from other types of networks supporting specialized treatment of packets will have impacts on concerns related to governance under Action Line C6 including how we define internet governance, public policy issues, and roles and responsibilities of various parties, how various technology policies relate to national strategies for public administration, and the effect of enforcement of e-commerce, online transactions and policies on the dynamic, interactive and collaborative capacities of the open Internet. (b2b6)

Failing to recognize the Internet’s special characteristics would also affect how connectivity would work as the “fundamental working tool” for local governance that Action Line C3 recommends recognizing. (b2b3)

In the context of e-government under Action Line C7, transparency, accountability and efficiency are served most reliably by a competitive telecommunications environment populated by independent providers who will agitate for accountability when their ability to use the Internet platform in the maximally flexible way it was designed for is impeded. Accountability also relates to the relationship between a government and its people, within the context of which people’s rights are defined, and a competitive telecommunications environment supports effective forms of accountability in relation to rights as well as in relation to the flexibility of the platform. (b2b7)

Failing to recognize the unique characteristics of the Internet will also affect what comes to be understood as cybercrime and misuse of ICTs in the context of Action Line C5, and what confidence and security mean, both in terms of government enforcement of policy to prevent crime or harm, and in terms of how well we may rely on fundamental liberties as limits on government actions in the name of cybersecurity. It will also affect understandings of the implications of centralized or decentralized approaches to cybersecurity concerns including areas such as spam and the nature of the roles of the government and of network providers in many areas including real-time incident response. Policies and approaches may easily be of a type only enforceable within centrally-managed intranet environments, and in the international context they may not be as well subject to the claims of fundamental liberties as they are in free national contexts. Policies associated with document identifiers and electronic authentication of transactions, also referenced in the cybersecurity context, can interfere with the openness and flexibility of the Internet platform if those attributes are not explicitly acknowledged and confronted. (b2b5)

Rights:

Like the effect on our confidence that the platform will support innovation in the contexts of Action Lines C5 and C6, overlooking the nature of the Internet will also affect our confidence that the platform will support freedoms of speech, press and association, as well as the right to be secure against unreasonable searches. Not only are these rights exercised more freely on an open and flexible Internet platform among autonomous and interoperating providers, but a vertically integrated telecommunications context works to the detriment of securing rights as limits on the government. (b2b5, b2b6)

If the telecommunications environment is vertically integrated, the implication is that infrastructure will be treated as a private asset of those who install it across the right of way, and as a result fundamental liberties related to the communications of citizens, understood as limits on the government, may be characterized as inapplicable. Indeed in that framework oversight of public franchise entities and common carriers in the form of regulation of infrastructure might be characterized as a violation of the rights of those who installed the infrastructure, rather than as a natural reflection of the nature of the right of way as a resource that must be governed to oversee access and foster competition. A context that regulates infrastructure in these terms recognizes this oversight more readily as a government function, which is thus directly barred from abridging the fundamental liberties of the general public, and incumbents in such a context naturally may incur obligations, including limitations that reflect those that apply to the government, in connection with their administration of a public franchise and privileged access to right of way. So security in the sense of reliable support for fundamental liberties may be affected when the foundation of the Internet in competitive access at the physical layer is overlooked, and infrastructure is instead treated as private assets vertically integrated with the products and services of incumbent providers. (b2b5, b2b6)

A failure to acknowledge the characteristics of the Internet will also affect the goals of promoting rights to privacy, data and consumer protection referenced in Action Lines C5 and C6. The conflicting understanding of the roles of public oversight and private parties derived from the telecommunications policy and regulatory environment as described above, can affect the nature of user education regarding privacy online, and of the initiatives and guidelines for rights of privacy, data and consumer protection encouraged by Action Lines C5 and C6. (b2b5, b2b6)

Other Trends:

The Information Society’s failure to distinguish the open Internet from specialized service networks will also have other implications for the WSIS Action Lines.

It will affect the type of connectivity that would be established for schools, universities, health institutions, libraries, post offices, community centers, museums, and other public institutions according to the call in Action Line C2, and the nature of the pilot networking projects among education, training and research institutions between developing and developed countries, and in fact the very kinds of ICTs that would be recognized as appropriate for integration into education and training, referenced by Action Line C4. It will also affect the kind of connectivity that would be made available for international cooperation on infrastructure development projects as called for in Action line C11. (b2b2, b2b4, b2b18)

It will affect the types of educational, administrative and legislative measures to serve various disadvantaged groups, and indeed the type of end user equipment, that Action Line C2 encourages promoting. And it would affect the universal access policies and strategies and connectivity indicators, systems standards, technical, regulatory and operational studies in public/private partnerships, as well as access to orbital resources, satellite for underserved areas, and frequency harmonization advocated by Action Line C2. (b2b2)

It will affect types of information made available, what would count as public domain, the forms of use and sharing of information that would be supported, whether technically or by policy, the kinds of exclusive rights that would apply in the context of the capabilities of the technology, and the roles that would be played by multi-purpose community public access points, all referenced by Action Line C3. (b2b3)

It will affect the open, interoperable, non-discriminatory standards, and the nature of the secure storage framework that Action Line C6 calls for. (b2b6)

Additional Comments: WSIS Performance Measures

We also call attention to Seth’s analysis of the ITU’s performance measures for measuring the progress of the WSIS project, found at https://internetdistinction.com/wsisimpacts/2014/03/25/wsis-measures-understanding-impacts-on-the-internet/.

The ITU’s performance measures essentially treat all high speed connectivity as Internet without recognizing a distinction between open Internet connectivity based on autonomous networks interoperating among themselves by transmitting packets without regard for application, and networks that support services based on more specialized treatment of packets.

Among these measures, the Revenue and Investment indicator is defined in terms of industry categories that make up the telecommunications sector as defined in the International Standard Industrial Classification (ISIC), Rev. 4. Among industry categories included under telecommunications, the ISIC refers to the Internet solely in relation to a vertically integrated context (“provision of Internet access by the operator of the wired infrastructure”) and not in relation to shared physical infrastructure (“purchasing access and network capacity from owners and operators of networks and providing telecommunications services using this capacity”).

These observations illustrate that the WSIS project’s failing to distinguish the Internet from other types of IP-based networks is a systemic problem, built into the definitions of the measures that the project uses to assess its success and progress.

We recommend not only that the WSIS performance measures distinguish open Internet from specialized services, but that they also be designed to track vertically integrated telecommunications contexts distinctly from contexts assuring competitive access to physical layer infrastructure.

We urge that assessment of the progress of the WSIS project, including the WSIS+10 Review, be performed as much as possible in the above terms, addressing characteristics and advantages of the Internet that are uniquely conducive to WSIS and broader UN goals, as well as tracking effects of different types of networks on these goals and on each other.

We recommend that United Nations agencies, including those constituting the UN GIS, incorporate these insights in framing the contribution of technologies and development programs to broader UN goals, as well as in areas of concern related to Internet Governance, including Enhanced Cooperation, proceedings of the Internet Governance Forum, and various other proceedings such as those related to Internet-related Public Policy Issues.

Signed (affiliations listed for identification purposes only):

Michel Bauwens, P2P Foundation
Robin Chase, Founder, Zipcar, GoLoco, Buzzcar, Veniam ‘Works
Gene Gaines, Gaines Group
Robert Gregory, BSEE, UCB, Non-Profit IT Director and IP Network Evangelist
Robin Gross, Executive Director, IP Justice
Michael Maranda, Co-Founder, Chicago Digital Access Alliance
Sascha Meinrath, Director, X-Lab, Founder, Open Technology Institute
John T. Mitchell, Interaction Law
Hunter Newby, CEO, Allied Fiber
Bruce Perens, co-founder of the Open Source movement in software
Ian Peter, Internet Consultant and Owner, Ian Peter and Associates
David P. Reed, Ph.D., Internet Pioneer
Chuck Sherwood, Principal, Community Media Visioning
Clay Shirky, Interactive Telecommunications Program, New York University
Aram Sinnreich, Ph.D., Author and Journalist, Assistant Professor, Rutgers
Jay Sulzberger, Statistical Consultant
Brough Turner, Founder, netBlazr Inc ., Co-founder & former CTO of NMS Communications and of Natural MicroSystems
Paul Vixie, CEO, Farsight Security
John G. Waclawsky Ph.D., Technology Advisor and Consultant, Chicago and Washington
John Wilbanks, Chief Commons Officer at Sage Bionetworks

Comments Off on Letter to UN GIS on WSIS+10 Review : more...

Letter to WTDC on Critical Concerns

by on Apr.08, 2014, under Uncategorized

(Statement also posted here)

———- Forwarded message ———-
From: Seth Johnson <[protected]>
Date: Tue, Apr 8, 2014 at 5:04 PM
Subject: Concerns Regarding WTDC Outputs
To: Houlin Zhao <[protected]>, Hamadoun Touré <[protected]>, ITU Development Secretary General <[protected]>, ITU BDT <[protected]>, ITU Secretary General <[protected]>
Cc: (various Regional Planning Meeting contacts)

(Please see attached pdf of the following letter)
Letter to WTDC on Critical Edits

Dear Secretary-General Touré, Deputy Secretary-General Zhao, and other participants in the 6th World Telecommunications/ICTs Development Conference,

We are members of civil society and industry who are concerned with the outputs being prepared in support of the WSIS project at the 6th WTDC, particularly with respect to their effects on developing countries, the Internet, and on the goals of the WSIS project. These concerns all derive from the failure to recognize important characteristics of the Internet and how the Internet differs from other types of IP-based networks, in the ITU’s guiding resolutions from the 2010 Plenipotentiary conference, and in the basic documents of the WSIS project.

We are also concerned about the implications for our own domestic policy of the type of network and policy framework being represented by the international WSIS project in its various proceedings.

Our chief concern is that the WSIS-related proceedings overseen by the ITU are working to implement networks that don’t represent the nature and advantages of the Internet, and the process is failing to address the potential tradeoffs in moving to IP-based next-generation networks designed for ICTs to support various WSIS goals, without understanding how these networks differ from the Internet.

In addition, these components of the WTDC’s work also present special concerns:

Contributions in support of a conformance and interoperability system that dovetails with the WTO’s Technical Barriers to Trade Agreement and that does not specifically recognize the type of general purpose interoperability already provided by the Internet’s basic design.

Contributions in support of promoting broadband, which are articulated in terms that do not acknowledge policy contexts supporting competitive access to physical layer infrastructure.

Various WTDC resolutions referencing ITU work related to identifiers that may support policies according to a conception of interoperability through conformance to common policy, without examining the impacts this conception may have on the form of maximal interoperability already provided by the Internet platform’s basic design.

The implications relate to important parts of the Hyderabad Action Plan and their associated WSIS Action Lines, including Cbersecurity, ICT applications, and IP-based network issues, and the Enabling environment, Capacity building, and Digital Inclusivity.

Overlooking the basic key characteristics of the Internet can affect the empowerment and digital inclusion pursued under Action Lines C2, C3, C4, C8 and C11, along with the self-determination, autonomy and independence for various communities that an open Internet platform arising among independent, autonomous providers makes possible. It may also affect the transparency, accountability and efficiency of e-government, and the sustainability and diversity of ICT applications development noted under Action Line C7. Neglecting to establish a proper basis for recognizing impacts on essential characteristics of the Internet may easily lead to development solutions for the enabling environment under Action Line C6 that are based on capacities made possible in managed service network contexts or vertically integrated telecommunications environments, or to approaches to cybersecurity-related concerns under Action Line C5 that might well be implemented by means of centrally-managed intranet environments.

These problems derive from the 2010 Plenipotentiary Resolutions, which present the terms Internet, IP-based networks, and Next-generation networks in a confused manner.1 However, several WTDC Resolutions can be improved in critically important ways to assure that the concrete technological solutions and policies for development that the WTDC endorses do not serve to mislead.

IP-layer Technical Interoperability:

We can refer to the Internet’s characteristic of universal general purpose interoperability as “technical interoperability,” and this aspect of the Internet reflects the IP layer’s design to support diverse communication patterns through digitization in the form of packet transmissions. This type of interoperability should be distinguished from interoperability understood as conformance with common policy, transmissions following the specifications and requirements of particular communications protocols.

Both general purpose, technical interoperability and more specialized interoperability in the form of conformance with a common policy need to be recognized by the initiatives of the Information Society, including relevant WTDC resolutions and research proposals. The IP layer’s design to support general purpose interoperability is the basis for the Internet’s properties of flexibility, openness, neutrality and empowerment of end users and independent providers.

Physical Layer Competition:

In the United States, the element of competition at the physical layer is represented by the bases of the Communications Act, including the 1996 revision, in the traditions of public franchise law and common carriage. For the Internet, the basic dynamic of competition among diverse, autonomous Internet providers combined with the need to support global connectivity between the endpoints of all participating networks sustains its openness, flexibility and neutrality through general purpose interoperability among providers who may nevertheless support diverse services within themselves. There is no such dynamic at work within the scope of a vertically integrated telecommunications provider’s network, though such a provider may efficiently deliver its own particular types of information services within the scope of its own network.

Identifiers-Related Work:

The work in the ITU on identifiers presents a problem in that it may potentially be used to support interoperability in the sense of enforcement of common policy, without acknowledging the form of maximal technical interoperability we already have in IP internetworking, or providing for recognition of the effects that interoperability in the form of assuring conformance to common policy may have on that Internet platform. These effects could include impacts on the free flow of information, the platform’s flexibility, or its support for interactive and collaborative use of published information.

In addition, the ITU’s identifiers-related technical work proceeds within an inter-governmentally supported frame and is presently being treated as a “merely technical” aspect more readily recognized as within the ITU’s mandate, while discussions regarding Internet governance are proceeding separately without acknowledging this identifiers-related work. These discussions do not yet address the need to incorporate modes for recognizing and addressing circumstances when policies and technologies in this area may have impacts on the Internet platform.

For those of us from the United States, the most significant factor of our experience related to telecommunications in the first ten years of the WSIS project has been the fundamental change in the nature of our telecommunications policy environment that was established by our FCC at the very outset of the period. We do not want the policy framework we labor under, one of vertical integration of the physical layer infrastructure with the information services of a few incumbent providers, to be exported to the world as an emulative example without specifically acknowledging the type of policy context on which our Communications Act is based, and within which the Internet was originally released to the public and grew by leaps and bounds. The dynamic at work at that time gave us an Internet that was naturally open and neutral, whereas at the same time as the commencement of the WSIS project, we found ourselves subject to a telecommunications environment in which the incumbents have repeatedly sought to introduce practices that would foreclose the open nature of the platform. Since the physical layer was no longer open to competitive access by independent Internet providers, the Internet’s foundation could no longer be relied on.

While Internet governance is a matter presently in contention in numerous fora, with Brazil’s NETMundal conference approaching and the NTIA’s recent announcement of its willingness to transfer oversight of the IANA to global multistakeholder processes that are not to be government-led or inter-governmental, the ITU’s processes already represent an inter-governmental framework in place, organized in terms of the outputs of the 2010 Plenipotentiary conference.

We ask the developing and developed countries taking part in the 6th WTDC to help illuminate key principles describing the Internet’s basic nature and set the stage properly for the discussions of Internet governance that are upon us, solve the problems of the WSIS in a manner that sustains the Internet’s openness, flexibility, interoperability and inherent neutrality, and empowers end users and independent providers to freely enter the arena. We would like the WTDC to communicate their support for bringing the Internet to developing countries, not just ICT applications and special networks to support them that may act at odds with the open Internet.

Your decisions at the WTDC represent the concrete embodiment of the inter-governmental instructions that the ITU is acting under from the 2010 Plenipotentiary Conference, just as the 2012 WTSA represented global endorsement of more abstract standards. When you finish and issue your findings, the inter-governmental frame, including its conception of the key terms Internet, IP-based networks, and Next-generation networks, will have received global endorsement in both senses before the next Plenipotentiary conference at the end of this year. The opportunity to register recognition by both developing and developed countries of the characteristics of the open Internet that are critical, and your interest in its full advantages, is upon you at this moment.

The Plenipotentiary body will either treat the 2010 frame as fulfilled, or reexamine the misconceptions embodied in it, based on whether the concerns raised in this letter are raised within the intervening 4 years. They were not raised at the WTSA; they have not been raised in the contributing documents for the WTDC, and they were not discussed at the WTPF. And they will not be raised at the 2014 Plenipotentiary Conference unless the participants in the ITU’s proceedings recognize the concern before then, and indeed before the status of the WSIS project is reviewed in the WSIS+10 MPP and HLE processes.

Recommendations

There are three general areas that need fixes in the WTDC’s resolutions.

First, the fact that the Internet already provides general purpose interoperability universally, to all end users and independent providers participating in the network of networks using IP to interoperate, needs to be recognized explicitly.

Second, the role of competition at the physical layer needs to be acknowledged explicitly. In the context of development, policies ensuring competitive access to shared infrastructure assure that competition is the principle at work at the physical layer. The openness, flexibility and neutrality of the Internet are sustained naturally in a competitive context at the physical layer.

Third, work in the ITU on a number of standards related to identifiers needs to be rendered explicit and addressed in relation to both interoperability and the broader context of Internet governance and Internet-related public policy.

IP-layer Technical Interoperability:

Conformance and Interoperability: Address the conformance and interoperability study question and WTDC Resolution 47 based on recognition of both types of conformance and interoperability — adherence to common policy in support of particular functions or applications within a given network versus general purpose technical interoperability among independent networks made possible by the flexible Internet platform.

Adapt the study question to:

Address the implications of recognizing both types of interoperability in relation to ITU recommendations, program materials, capacity building initiatives, etc.

Develop best practices for ITU recommendations and critical priority issues based on recognizing the two types of interoperability: general purpose internetworking among autonomous network providers versus common policies within particular networks for specialized treatment of IP packet transmissions

Adapt capacity building programs to address different types of networks and both types of interoperability, assuring the process fosters confidence in ICTs on the basis of both types of interoperability

Address topics such as policy and regulatory contexts, quality of service, interoperation between ICT networks and Internet networks, according to the same question

Develop terms of reference, mobilization programs and the coordinating functions of TSAG and TDAG in these terms as well

Adapt WTDC 47 along the same lines, to:

Recognize at least these two types of conformance and interoperability

Recognize their relevance to policies and regulatory contexts, bridging the digital divide and the standardization gap

Encourage best practice implementation of ITU-T and ITU-R Recommendations for both general purpose technical interoperability between networks and conformance with policies for particular functions within individual networks

Provide for certifications in relation to each type of interoperability distinctly

See attached documents for recommended revisions
https://internetdistinction.com/wsisimpacts/files/2014/03/Conformance-Interoperability-Study-Question-ID-Edits.pdf
https://internetdistinction.com/wsisimpacts/files/2014/03/WTDC-47-ID-Edits.pdf

Physical Layer Competition

Broadband Deployment:

Adapt the broadband deployment study question to

Recognize specialized services distinctly from open internet connectivity

Explicitly reference policy and regulatory contexts that support competitive access to shared infrastructure

Address different modes by which specialized service frameworks like IMT might coexist with general purpose open Internet connectivity, both with reference to the distinction between specialized services and open Internet and with reference to policy and regulatory contexts that do and do not assure competition at the physical layer

Develop implications for ICT applications in light of both specialized service intranet contexts and open Internet contexts

Address the impacts of broadband on the underserved in light of characteristics of general purpose open internetworking of importance to developing countries and underserved or disadvantaged populations — notably the support such a networking context provides for independent innovation by end users and competing network providers

See attached document for recommended revisions
https://internetdistinction.com/wsisimpacts/files/2014/03/Broadband-Study-Question-2-ID-Edits.pdf

Funding Mechanisms and Partnerships:

Adapt WTDC Resolutions 13 and 30 to:

Support developing funding mechanisms based on recognizing distinction between networks implemented within vertically integrated telecommunications contexts, and the network of networks produced among competing providers readily entering the physical layer and interoperating among themselves

Encourage investments and innovative partnership schemes, and ICT financing joint ventures for both vertically integrated telecommunications contexts and contexts that support competitive access at the physical layer

Incorporate explicit recognition of the role of public oversight as a feature that applies inherently to a shared resource such as the public right of way in public-private partnerships

Recognize distinct kinds of advantages of both the Internet and other types of IP-based networks including next-generation networks, observing the distinction between the open Internet platform and other types of networks in relation to WSIS goals

Endorse statistical work reflecting the distinction between the open Internet platform and other types of networks;

Promote human capacity building in developing countries for both networks producing an Internet platform among themselves, and other types of IP-based networks

See attached documents for recommended revisions
https://internetdistinction.com/wsisimpacts/files/2014/03/WTDC-13-ID-Edits.pdf
https://internetdistinction.com/wsisimpacts/files/2014/03/WTDC-30-ID-Edits.pdf

International Internet Connectivity

Adapt WTDC Resolution 23 to:

Recognize that some commercial initiatives by providers of international connectivity to the broader Internet may take the form of practices within their networks that must be distinguished from Internet connectivity, notwithstanding cost advantages of these practices, since they are not consistent with the flexible mode of interoperability among competitive, autonomous Internet providers that the Internet protocols make possible

See attached document for recommended revisions
https://internetdistinction.com/wsisimpacts/files/2014/03/WTDC-23-ID-Edits.pdf

Identifiers-Related Work

Cybersecurity:

Adapt WTDC Resolution 45 to:

Note support for the free flow of information based on the Internet’s support for innovative and flexible modes of interactive and collaborative use of published information

Recognize that both policies and cryptographic measures to address security-related issues may potentially be used in ways that extend their effects to impacting free flow of information, ideas and knowledge and flexible modes of interaction and collaboration with published information

See attached document for recommended revisions
https://internetdistinction.com/wsisimpacts/files/2014/03/WTDC-45-ID-Edits.pdf

IP Addressing and IPv6 Deployment:

Adapt WTDC Resolution 63 to:

Acknowledge studies underway in IP address allocation mechanisms and IP-based network issues such as interoperability with other networks, numbering, signaling requirements and protocol considerations, evolution/migration to next-generation networks and implementation of ITU-T Recommendation D.50 on international Internet connectivity

Acknowledge the relationship of requirements, features and interoperability of next-generation networks to development of future forms of IP-based networks

Recognize the use of IP addresses for both general purpose open Internet transmissions supporting interoperability between autonomous networks and more specialized treatment of packets to support particular specialized functions within networks

Recognize that the development of ICTs and the addressing of technical or policy issues within the process of deploying IPv6 may work to support either general purpose internetworking or specialized services

Call for the ITU Council to support the coexistence of both the general purpose open Internet, and specialized services that may be developed within individual networks, as it endorses the BDT Director’s initiatives in support of IPv6 deployment

See attached document for recommended revisions
https://internetdistinction.com/wsisimpacts/files/2014/03/WTDC-63-ID-Edits.pdf

Signed (affiliations listed for identification purposes only):

Robin Chase, CEO, Buzzcar
Gene Gaines, Gaines Group
Seth Johnson, Information Quality Specialist
Michael Maranda, Co-Founder, Chicago Digital Access Alliance
Sascha Meinrath, Director, X-Lab, Founder, Open Technology Institute
David P. Reed, Ph.D., Chief Scientist, TidalScale, Inc.
Chuck Sherwood, Principal, Community Media Visioning
Aram Sinnreich, Author and Journalist, Assistant Professor, Rutgers
Brough Turner, Founder, netBlazr Inc ., co-founder & former CTO of NMS
Communications and of Natural MicroSystems
Brett Wynkoop, First provider of public Internet access in New York City

Footnotes:

1 See these analyses for details:

Conformance and Interoperability:

Conformance and Interoperability: Understanding Impacts on the Internet

Cybersecurity, ICT Applications and IP-Based Network Issues:

Cybersecurity, ICT Applications and IP-Based Network Issues: Understanding Impacts on the Internet

Enabling Environment, Capacity Building, Digital Inclusivity:

Enabling Environment, Capacity Building, Digital Inclusivity: Understanding Impacts on the Internet

WSIS Performance Measures:
https://internetdistinction.com/wsisimpacts/2014/03/25/wsis-measures-understanding-impacts-on-the-internet/

Comments Off on Letter to WTDC on Critical Concerns : more...

WSIS Performance Measures: Understanding Impacts on the Internet

by on Mar.25, 2014, under Uncategorized

by Seth Johnson

Introduction
Definitions/Usage of Terms
The ITU’s WSIS Indicators
Broad Usage of the Term Internet
Internet Associated with Vertically Integrated Telecommunications Contexts
Conformance, Interoperability, Broadband and the Technical Barriers to Trade Agreement
Introducing De-convergence
Convergence in the WSIS Project
Implications
Internet Governance and “Internet Universality”
The FCC’s “IP Transition”
Recommendations/Conclusions

Introduction

In the first week of December the World Telecommunications Indicators Symposium (WTIS) met in Mexico City and endorsed the latest set of revisions to the indicators by which the ITU will measure the progress of the WSIS project. The Experts Group on Telecommunications Indicators (EGTI) met just prior to the WTIS to prepare inputs based on their discussions in the preceding months.

The indicators adopted at these meetings show how the WSIS project as a whole will have critical effects on key characteristics of the Internet. They fail to distinguish the Internet from other types of IP-based networks, or to distinguish the open Internet from specialized services. They are also based on a set of definitions for the telecommunications sector that does not clearly provide for legal traditions such as common carrier that assure competitive access by autonomous Internet providers to physical layer infrastructure.

The following presents the usage of the term Internet in the ITU’s measures and offers comments placing the analysis in the broader context, then offers a set of recommendations. The broader context includes factors such as the WTO’s Technical Barriers to Trade Agreement, proposals for study questions on broadband and conformance and interoperability testing being pursued for the WTDC, and the notion of convergence that underlies the WSIS project. It also includes various proceedings presently underway, including the “IP Transition” at the FCC in the United States, discussions in different fora on the nature and scope of enhanced cooperation in the WSIS project and on the role of governments in a number of Internet-related public policy areas, as well as on international Internet governance in general, the WSIS+10 review of status, the development of the ITU’s Strategic Plan for the next 4-year cycle, and ITU-D’s processes for promoting ICT development and investment in infrastructure as framed by WTDC-related ITU resolutions.

Definitions/Usage of Terms

The ITU’s WSIS Indicators

The EGTI and WTIS resolved to update the ITU’s core indicators to conform to the definitions in the ITU’s 2011 Handbook for the Collection of Administrative Data on Telecommunications/ICT.

These indicators include:

  • Fixed telephone subscriptions
  • Mobile-cellular telephone subscriptions
  • Fixed/wired broadband Internet subscriptions
  • Wireless broadband subscriptions
  • International Internet bandwidth
  • Percentage of the population covered by at least a 3G mobile network
  • Fixed broadband Internet prices
  • Mobile cellular telephone prepaid prices

The following were deleted:

  • Fixed internet subscribers (which included dialup and other fixed broadband)
  • Percentage of localities with public Internet access centres (PIACs)

The following indicators were added to the above:

  • Mobile broadband Internet prices
  • TV broadcasting subscriptions

Some of these core indicators also play a part in the ITU’s ICT Development Index and Revenue and Investment indicators, key elements of the ITU’s annual report, Measuring the Information Society.

Recent work by the EGTI and the ITU has focused on developing indicators for mobile broadband prices and backbone transmission networks. This work has translated into the addition of “mobile broadband Internet prices” to the core indicators (inserting the term Internet with the present permutation) and contributes to the “international Internet bandwidth” core indicator.

ITU Definitions: Broad Usage of the Term Internet

All of the subcategories that make up the ITU’s definitions for fixed/wired and wireless broadband could just as well represent networks providing specialized services as open Internet. But the ITU Handbook’s definitions for the fixed and wireless broadband subcategories — cable, DSL, FTTH/B and “other” for wired, and satellite, terrestrial fixed, and active-mobile for wireless — simply present them with reference to the term Internet.

The ITU’s definitions for the international Internet bandwidth measure, and for both fixed and mobile broadband Internet prices, also reference the term Internet while not distinctly addressing specialized services. A correlative measure in the ITU Handbook for domestic Internet bandwidth, not as yet included in the core indicators, also shows this pattern. No distinction is made between the Internet and particular networks that may shape packet transmissions to support specialized functions within themselves.

Both the ICT Development Index and the Revenue and Investment indicators incorporate the fixed/wired and wireless broadband core indicators, thereby incorporating the same problem.

Recent work by the EGTI and the ITU has focused on developing measures for mobile broadband prices and backbone transmission networks. The status of the interactive backbone map project was reported at the WTIS. Just as for the core indicators and the ICT development and revenue and investment measures, these analyses of fixed and wireless broadband prices or domestic and international backbone capacity do not incorporate a recognition of a distinction between open Internet and specialized services.

While ITU’s resolutions for the WSIS project more generally make numerous references to the key terms IP-based Networks, Internet and Next-Generation Networks (NGNs) (though without actually distinguishing the terms clearly) the indicators the ITU is using to measure progress for the WSIS project, as well as the analyses built upon these indicators in their annual Measuring the Information Society report, do not provide for any distinction among these types of networks at all. This is a clear indication that the WSIS project as it is currently designed will allow managed services to supplant and be confused with the open Internet — exactly in accord with the FCC’s projections in its “Further Inquiry into Two Under-developed Issues in the Open Internet Proceeding”. Also see the Joint Statement on Advancing Open Internet Policy Through Analysis Distinguishing Open Internet from Specialized Network Services.

ISIC Definitions: Internet Associated with Vertically Integrated Telecommunications Contexts

While the core indicators use the term Internet in a broad way that fails to recognize the difference between open Internet and networks offering specialized services, the ITU’s definitions of its revenue and investment measures use the term in a more particular way as it specifies industry categories to be included or excluded. The revenue and investment measures are based on the definitions for the telecommunications sector in the International Standard Industrial Classification (ISIC), Revision 4, which is used as a basis for the WTO’s Technical Barriers to Trade agreement, described below.

The ISIC breaks telecommunications into four categories: wired, wireless, satellite and other. For wired, the term Internet is referenced solely in connection with the category of “provision of Internet access by the operator of the wired infrastructure,” while a separate category provides for operators “purchasing access and network capacity from owners and operators of networks and providing telecommunications services using this capacity.” The former category clearly represents a vertically integrated telecommunications context. The latter category represents access to physical infrastructure but not necessarily infrastructure subject to a policy context assuring competitive access by independent Internet providers. It also, in contrast with the former category, makes no reference to the term Internet. The wireless and satellite categories in the ISIC definition of the telecommunications sector show a similar pattern.

Vertical Integration in the United States: Incumbents who are allowed by the policy context to treat the physical layer infrastructure largely as vertically integrated assets within their own processes for producing higher level information services might well lease access to that infrastructure to other providers without a policy mandating that they do so. However, in the experience of the US, where this type of policy context has been established, we have not seen this practice arise on a basis that assures equitable access and rates.

For nearly the entire period since the initiation of the WSIS project — which might be designated by the 2003 Geneva and 2005 Tunis WSIS events — the United States’ application of its Communications Act has been framed by a series of findings, issued by the FCC in 2002 for cable and in 2004-2005 for other modalities, that not only deregulated Internet service but also the physical infrastructure over which telecommunications transmissions are carried. These findings neutralized the legal foundations of the Communications Act in public franchise law and common carrier obligations which up until then had assured competitive access to the physical layer by independent, autonomous Internet providers.

The FCC’s 2005 Wireline Order stated the incumbents were free to lease their lines (see paragraphs 86-95), but in fact thousands of autonomous, competing ISPs closed operations as a result of these findings, thereby eliminating the open and neutral Internet platform that had arisen among them up until then as a natural reflection of their need to interoperate with each other. The FCC is currently positioned to continue to apply this same policy framework within the context of the WSIS initiatives that these indicators are intended to measure, as well as in the context of the TBT agreement, as the US pursues its “IP Transition.”

The ISIC also uses the term Internet in a set of diverse categories combined under the “other” heading, including Internet access over networks between the client and the ISP not owned or controlled by the ISP (such as dial-up), telephone and Internet access in facilities open to the public, telecommunications services provided over telecommunications connections, such as VoIP and telecommunications resellers, and specialized applications such as satellite tracking and telemetry. These categories are distinguished from the main wired, wireless and satellite telecommunications categories.

Conformance and Interoperability and Promoting Broadband: the Role of the Technical Barriers to Trade Agreement

The ISIC definitions show the relationship of the WSIS project and WTDC initiatives to the Technical Barriers to Trade agreement. The relevance of the Technical Barriers to Trade agreement can be seen particularly in the work in the ITU-D sector on “Conformance and Interoperability” assessment, including a Study Question proposed by the US on “Conformance Testing,” which reflects the provisions of the TBT agreement calling for WTO Member States to uphold harmonized conditions for international trade in part through conformance testing.

Conformance and interoperability testing might become a basis for enabling government or privileged providers to promote new types of networks by appealing to intergovernmental standards, without distinguishing them from the Internet or recognizing the tradeoffs these types of networks bring as compared to open internetworking between networks. This could be a problem if these standards work against connectivity in the form the Internet makes possible, or if their promotion allows something different to be called Internet.

Study Question 25 on promoting broadband emphasizes IMT, the ITU’s term for the 3G/4G wireless managed services framework, and can also be related to the TBT agreement. Both the ITU’s notion of broadband in this study question and the use of the term Internet in the ISIC’s definition of the telecommunications sector underlying the TBT agreement suggest a move to approaches to services and infrastructure that reflect the US’s emphasis on a vertically integrated telecommunications environment while overlooking other approaches such as those based on public franchise law and common carrier obligations.

The TBT agreement aims at ensuring that technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to international trade. Under the TBT, technical regulations may only be developed for legitimate objectives (such as security, preventing deceptive practices, protecting health and safety or protecting the environment). Members are encouraged to base their technical regulations, standards, and conformity assessment procedures on international standards and to develop conformity assessment procedures to generate confidence that products conform with applicable technical regulations or standards. Members are called to accept each other’s technical regulations as equivalent until international harmonization is achieved and to enter into mutual recognition agreements (MRAs) for the acceptance of each other’s assessment results. The TBT Agreement also authorizes special and differential treatment for developing countries based on a number of considerations.

When we consider the combination of the broad use of the term Internet in the ITU’s WSIS indicators with the more particular use of the term in the ISIC definitions for the telecommunications sector, we recognize that these measures represent a WSIS project whose structure fits readily into an international policy framework to implement a more specialized service version of connectivity, in contexts that do not necessarily support competition at the physical layer. We also see that the TBT agreement is situated to potentially play a part in enforcing this arrangement.

OECD Recommendations: Introducing De-convergence

The EGTI endorsed a set of recommendations by the OECD regarding what to include or exclude in the Revenue and Investment measures in light of a general scheme governing the ISIC industry categories. The implications of these recommendations are notable in relation to the notion of convergence that undergirds the WSIS project. The addition of the “TV broadcasting subscriptions” measure to the core indicators at the WTIS is also significant in this connection.

The OECD recommendations note that discrepancies in data reporting based on questions regarding what should be included under the term telecommunications and what should not will continue to be a problem given the phenomenon of convergence. They offer guidance by applying the principle by which the ISIC differentiates the telecommunications sector — as made up of those entities that transmit information while not being involved in content creation. The ISIC distinguishes the telecommunications sector from other industrial categories under the broader heading of “information and communications” on this basis.

The OECD explains that in the case of a cable operator that produces TV content, revenues from sales of rights to the content should be excluded, while revenues from subscriptions to cable programming should be included. In further guidelines they indicate that free-to-air TV relates to content creation from traditional broadcasters and should therefore be excluded, but IPTV should be included because it deals with distribution by telecommunication operators. Pay digital terrestrial television channels relate mainly to content creation and should be excluded, while cable TV and satellite should be included where their activity relates to Internet or multichannel distribution, but not where they are producing TV content.

To identify investments within these industrial categories, they recommend a formula including expenditures on fixed telecommunications network assets (tangible and intangible), less assets that have been disposed of. They include research and development, and exclude operating license or radio spectrum fees, since these are often lump sums that would disrupt the consistency of time series analyses across countries and businesses.

For revenues, they recommend one measure for all telecommunications and a separate one for mobile telecommunications. Telecommunications revenues include retail fixed-telephone, mobile-cellular, Internet, and data services, while excluding revenues from content creation. This is to include transmission of TV signals, and to exclude wholesale sources such as interconnection. Mobile revenues include revenues from all voice, SMS and data, including value added services like premium SMS, while excluding wholesale revenues from termination, origination, and transit rates or inbound roaming.

In this way, the OECD recommendations for the revenue and investments measures use the ISIC definition to distinguish the telecommunications sector from other categories in the “information and communications” sector, for broadcasting and programming, print media and software publishing, movie, TV, sound and music publishing, computer programming and consultancy, and information services such as data processing and web portals.

These definitions of the revenue and investment measures are notable because so much of the motivation for the WSIS project is based on the notion of convergence. Despite the WSIS project’s appeal to convergence as a general trend bringing about dramatic changes, warranting a call for stakeholder participation in the development of a governance system that appreciates the significance of the changes, in fact the use of the ISIC definitions in the ITU’s measures represents a form of “de-convergence” built into the WSIS project. It creates a schema that distinguishes telecommunications from content creation in general and a number of other “information and communications” industry categories. The implications of this de-convergence have yet to be acknowledged in the WSIS proceedings.

Convergence in the WSIS Project

The notion of convergence that governs the WSIS project is of concern in its own right, since the form it takes in WSIS materials can easily imply networks that may uphold policies may not readily be applied in the open Internet context. However, here we observe that the ITU’s WSIS measures presently embody a form of de-convergence that contrasts with the generally recognized role of the idea of convergence in the project. We see in the ITU’s WSIS measures a divergence between a prominent aspect of the WSIS project wherein convergence has been generally appealed to as a historical force the best development of which the project seeks to foster, and a less-recognized aspect of the project wherein systems to support a particular form of de-convergence are implied in the basic terms according to which WSIS success is to be measured.

As just observed, not all functions can be converged with an Internet comprised of autonomous routers using the Internet Protocol to interoperate. Perhaps the most noted example is quality of service (QOS) in the form of prioritizing of particular application transmissions. This can generally be done best within individual networks or across sets of contracting networks, since independent networks cannot be expected to apply the same priority to packets as is applied within the network where they originated and where they were designated for specialized treatment. Other specialized services may also apply policies that are similarly suited to intranet contexts rather than networks of autonomous interoperating networks.

Numerous documents related to the WSIS project incorporate references to convergence, using the term in a wide variety of senses. But perhaps the instance that uses the term in a way that most clearly designates the type of network foreseen as the outcome of convergence, is the 2013 WCIT’s background document on convergence:

“There is no single definition of convergence. However, a key innovation is the transformation from circuit-based telecommunication networks to packet-based ones using the Internet protocol (IP): so-called next-generation networks, or NGN. The “vertical” structure of independent networks is evolving into a “horizontal” structure based on IP that can deliver many kinds of content through a single platform. This has profound implications for the market, regulators, and ultimately the expansion of communications to people everywhere.”

This conception of convergence is notable in at least two ways: in its simple identification of IP packet-based networks with next-generation networks, and in its contrasting of a single IP-based platform against a network made up of independent networks, treated as a past stage of evolution. This presentation is probably the most direct indication that may be found in the WSIS documents of an outcome in mind that is not a network of networks, but a single platform in which discrete individual providers might take part, but in which they would not be fully autonomous and competitive networks interoperating neutrally.

In referring to the packet-based networks that are to replace legacy circuit-based telecommunications networks as “next-generation networks” or “IP-based networks,” this presentation glosses over the distinction between the Internet as a network of networks using IP packet transmissions to interoperate with each other, and other types of IP-based networks that may implement specialized treatment of packets by instituting a common policy across routers under their control.

Instead WSIS documents and notably the ITU’s resolutions tend to use the term “ICTs” and present many signs of a trajectory toward establishing a next-generation network framework like that described above, which would support ICT applications related to a number of policy areas.

Plenipotentiary Resolution 31, from the 2002 Marrakesh conference, directly identifies the concept of convergence with the term ICTs, referencing “the convergence of telecommunication and computer technologies and services, referred to as information and communication technologies (ICT)” as “an agent of change for the information age.” Plenipotentiary Resolution 137, from the 2010 Guadalajara conference, promotes the deployment of next-generation networks in developing countries. Similar references to convergence and ICTs can be found in Plenipotentiary Resolution 71, the ITU’s Strategic Plan for 2012-2015, and in Plenipotentiary Resolution 139, on telecommunications/ICTs to bridge the digital divide. The Geneva and Tunis WSIS outcome documents and the 2010 WTDC’s Hyderabad Declaration also make extensive references to ICTs in this sense.

The Broadband Commission’s 2012 State of Broadband Report enumerates several types of convergence consistent with the notion of new networks supporting ICT Applications. These include convergence of ICT policy with various policy areas such as energy, health, education and the climate, a notion of an “economical balance” among converging services, positioned as a strategy to connect new subscribers, convergence of regulatory spheres such as telecommunications, radio and television given that combined (“triple play”) services make separate regulation difficult, and the proposal of simplified or unified licensing regimes designed to support any telecommunications provider offering any services, on a basis of assuring that consumer rights and market competitiveness are protected.

WTDC Resolutions 54, 72 and 74, on ICT applications, effective usage of mobile communications, and e-government services, also reflect this notion of ICT Applications through new networks, while failing to provide a basis for recognizing when these types of telecommunications environments may have impacts on the nature and advantages of the open Internet. WTDC Resolutions 34, 63, 65, and 66, and WTSA Resolutions 47, 48, 49, 64 and 73 represent more particular ICT applications, including disaster preparedness, healthcare services, ICTs for climate change, IPv6 and IP address allocation, country code Top Level Domains (ccTLDs), Internationalized Domain Names (IDNs), and ENUM.

We note the role of the concept of convergence in order to show the significance of the fact that the ITU’s WSIS measures actually represent a de-convergence in service of a distinction between content creation and telecommunications.

The position of the notion of the Internet in relation to these categories is still unclear, but 1) the WSIS project is proceeding in a manner that confuses the nature of the Internet in service of networks that may support convergence in the form of ICT Applications of various sorts, while 2) the process already incorporates a de-converged framework that is not being acknowledged in the general discourse, one of great significance from the standpoint of the Internet’s support for shared information and collaboration.

Implications

A few observations follow on the implications of the above analysis in the context surrounding the WSIS project.

Internet Governance and “Internet Universality”

In recent developments in the Internet governance arena, Brazil has responded to revelations of US government surveillance by initiating proceedings to develop a frame for international Internet governance in some way independent from the role of the US. Subsequently the US’s NTIA has announced its willingness to release core IANA functions to oversight by global multistakeholder processes, stipulating while doing so that it would not support a framework that was governmental or inter-governmental in nature.

However, the WSIS project incorporates elements of inter-governmental agreement in the way in which the pursuit of the project has been framed, and the WSIS measures represent the bases by which the progress of these processes are to be assessed. The 2010 Plenipotentiary conference issued a set of resolutions setting an inter-governmentally endorsed framework within which the ITU would conduct proceedings in its radio (ITU-R), standards (ITU-T) and development (ITU-D) sectors in accord with WSIS and broader UN parameters. Indeed, the confusion in the WSIS measures regarding the distinctions between Internet connectivity and other types of IP-based connectivity can be traced to certain key resolutions issued by the 2010 Plenipotentiary conference.

Two submissions to Brazil’s Netmundial conference are of great potential significance in relation to the inter-governmental frame set at the 2010 Plenipotentiary conference, and to the framework of industry categories embodied in the ITU’s WSIS measures. Verizon’s submission makes specific reference to the Technical Barriers to Trade agreement, with its relationship to conformance assessment and the ISIC categories. UNESCO has called for recognition of a principle of “Internet Universality” the significance of which can be understood in light of the question of whether the type of interoperability already made possible among autonomous networks by the Internet will be recognized in processes that so far do not adequately recognize that key characteristic.

The 2010 Plenipotentiary resolutions called for the WTSA and WTDC proceedings to be conducted with open consultancy processes (PP 178, PP 140). At the same time, though, they stipulated that the WTSA was to be framed by the strategic goals of the WSIS outcome documents (PP 122), and the WTDC was to be framed within the terms of the broader UN Development Program and the UN Millennium Goals (PP 135). The WTSA was concluded in 2012 and its outputs include resolutions recognizing the ITU-T sector’s work on certain “more technical” topics, including various standards related to Names, Numbers, Addresses and Identifiers (NNAIs), including ENUM and more indirectly the system for digital identifiers described in ITU-T Recommendation 1255.

These standards are potentially critical in relation to a notion of “Internet Universality,” as they can be used to support a conception of interoperability understood on the basis of adherence to common rules, potentially upheld by validation of identifiers, rather than on the basis of recognizing interoperability as an inherent attribute already available from the maximally flexible platform produced by using IP to interoperate among autonomous networks. Some functions implemented as “universal” by ensuring conformance with common rules could interfere with the open design for interoperability across autonomous networks already provided by the Internet Protocol and the fundamentally flexible nature of the platform that results. If such functions are implemented, these decisions should not proceed without recognizing and addressing their impact in these terms.

The WTSA outcomes for the ITU’s standardization sector already enjoy inter-governmental support since they fulfill 2010 Plenipotentiary instructions, and anyway are subject to inter-governmental review again in the regular 4-year ITU cycle, with the next Plenipotentiary conference closing the current cycle later this year. The open consultancy process associated with the WTSA also serves to politically affirm and validate the framework set in the 2010 Plenipotentiary resolutions. This includes, unfortunately, the confusion in the terms Internet, IP-based networks and Next-generation networks presently embodied in the Plenipotentiary resolutions.

UNESCO presents its “Internet Universality” proposition as an outcome of the UN GIS and WSIS+10 processes, relating the proposition more closely to the process of reviewing the success of the WSIS project and the broader UN frame that sets the limits for the WTDC than to the WSIS outcome documents that set the boundaries for the WTSA. Whereas the WTSA endorsed more abstract and “more technical” standards according to strategic goals in the WSIS outcomes, the WTDC will endorse more concrete technology solutions and policy frameworks for developing countries throughout the world in accord with UN purposes and a determination of the success of the project that fail to recognize the impacts these initiatives will have on the Internet — serving through its own open consultancy process as a political affirmation and validation of these components of the WSIS project as well as the 2010 Plenipotentiary framework.

It stands to reason that if the present confusion in the 2010 Plenipotentiary resolutions and the ITU’s WSIS measures is not clarified, then “Internet Universality” could be implemented in ways based on a new conception of the meaning of the term Internet that would undermine the inherently open form of universal interoperability that is already built into the design of the IP layer, and this new framework could be enforced by means of conformance assessment processes in support of the Technical Barriers to Trade agreement.

The FCC’s “IP Transition”

The fact that both the ITU’s measures and the US’s draft of the broadband study question fail to distinguish open Internet from specialized services and both are elaborated in terms consistent with vertical integration, without referencing the Internet in contexts supporting competitive access at the physical layer, may explain much of the FCC’s approach to the “IP Transition” in the United States.

The FCC is presently engaged in an “IP Transition” that does not clearly represent a transition to an Internet platform, though it might seem that way. The IP Transition designates a process of encouraging experiments by network providers to deliver connectivity in new ways using IP-based networks, independent of regulatory principles that have applied to traditional telecommunications, as a result of the fundamental changes in the regime wrought by IP communications. These IP experiments are to examine impacts on principles of public safety, universal access, competition and consumer protection. The Technology Transition Task Force indicates that this process is to be conducted with the use of clear and consistent definitions and metrics that allow results to be aggregated across experiments.

However, there is little sign of attention by the FCC to the distinction between Internet and specialized services that it examined during the Open Internet proceeding, in its “Further Inquiry into Two Under-developed Issues in the Open Internet Proceeding“.

The characteristics of the WSIS measures I have described above are fully consistent with an IP Transition to the type of next-generation IP-based networks to support ICT applications that the WSIS project is presently designed to foster — failing to recognize distinctions between open Internet and specialized services or among the terms Internet, IP-based networks and next-generation networks, and referencing the Internet in relation to vertically integrated telecommunications.

In fact, the recent addition of the TV subscriptions indicator to the core indicators, combined with the incorporating into the revenue and investment measures of a de-converged framework based on distinguishing video and content creation from other information and communications industry sectors, might reasonably lead one to wonder how much we can attribute to coincidence the facts that nearly at the same time Comcast is moving to consolidate Time Warner Cable and making a critical move to a direct interconnection arrangement with Netflix, with Verizon announcing it intends to reach a similar arrangement with Netflix.

Indeed, concurrent activities related to copyright also might lead one to ask a similar question: the US’s pursuit of an international broadcaster’s right, its position in the Aereo case, and the US PTO’s proceedings on numerous aspects of digital copyright. Similar copyright-related developments are also underway in the European Union.

FCC Commissioner Tom Wheeler presumes a vertically integrated context and describes his approach to ensuring the open Internet in a manner consistent with the WSIS impetus toward implementing networks designed to support key ICT applications. He appears to advocate an “Internet ecosystem” approach to policy and to take an approach to analysis of telecommunications policy choices consistent with the principles of the framework which was articulated by Joseph Farrell and Philip J. Weiser in 2003 and which was a key citation in the FCC’s 2005 Wireline Order, presenting a basis for understanding the dynamics of vertically integrated platform providers engaging in application markets dependent on their platform.

In Ensuring an Open Internet Now and for the Future, Wheeler bases the necessity of government oversight on the facts that broadband networks support essential services for society, and there are likely to be few such networks, stating that this condition means they are likely to enable exercises of market power.

He characterizes concerns expressed in the NN debate in relation to a process of developing policy decisions regarded as a “work in progress” and in light of Michael Powell’s Open Internet Principles. He articulates his approach in terms of a dynamic constituted of weighing concerns of producers and consumers, such as that network operators will make moves that cut off or diminish the value of the Internet, or that the FCC will intrude on network operators in ways that cause economic harm or inhibit their ability to offer improved service, declaring that he will avoid either interfering with practices that produce efficiency and enhance competition, or allowing practices that reduce those characteristics.

This approach consistently overlooks recognition of the basis of the Internet in the problem of interoperating among autonomous network providers, which had ready, competitive access to physical infrastructure up until the 2002-2005 timeframe in the United States, and consequently provided an open, neutral and universally interoperable platform up until then to all providers and end users taking part in the network of networks established among them on the basis of the TCP/IP protocol. Wheeler’s reference to Title II in his response to the DC Circuit’s ruling on the Open Internet rules most easily suggests the use of Title II (if its usefulness becomes apparent to the FCC) as a basis for establishing net neutrality by setting rules on information service providers at a higher level, rather than simply as a basis for applying common carriage principles at the physical layer, thereby opening it up to competing providers and reestablishing the original dynamic.

It should be noted that Farrell and Weiser describe the modularity of the Internet within their framework in terms that do not acknowledge it as an emergent property of autonomous networks interoperating, but more in terms that treat it as deriving from decisions of the network provider. They frame the question of how to assess acts by vertically integrated platform providers wherein they take part in or exert influence on complementary application markets dependent on their platform to various degrees or not, in light of effects on efficiency in delivering information services which derive from their vertical integration. They do not phrase the question, however, of how the advantages of a dramatically flexible platform wide open to independent innovation that emerges as a consensus solution to interoperation among independent competing providers (not the applications that stem from that platform, but the advantages of the platform itself that so arises) should be considered against the efficiencies in delivering the particular services of a vertically integrated provider.

Farrell and Weiser also reference the definition of the Internet issued in 1995 by the Federal Networking Council in connection with their treatment of the modularity of the platform that lies at the center of their analysis. This definition of the Internet was notable at the time for referencing the TCP/IP protocol, but its suitability for representing the Internet is a mirage. It essentially reduces the Internet to the collection of networks that use IP addresses, citing the Internet Protocol solely for its reference to those identifiers in the header fields of Internet Protocol packets, while making no reference to what IP packets accomplish in terms of providing a layer that enables maximal interoperability between autonomous networks. The FNC definition thus represents an early basis for the present confusion in terms, whereby individual networks that may be performing esoteric functions within themselves while using TCP/IP, and which may thus properly be called “IP-based,” are easily confused with the network of networks that the concept of internetworking represents and that the Internet Protocol was designed to enable. The FNC definition was also issued at a time when the telecommunications policy context in the United States supported competitive access to the physical infrastructure layer, so the basis of the dynamic of the Internet platform in a policy context that originally assured competition among autonomous network providers at the physical layer was perhaps too implicit to be explicitly acknowledged as a factor in sustaining its most profound characteristics: its flexibility, openness, interoperability and inherent neutrality.

Recommendations/Conclusion

In the measures that it uses to assess its progress the WSIS project is systemically designed to implement telecommunications network environments that do not distinguish between the Internet made up of interoperating autonomous networks and other types of IP-based networks, and thus that fail to distinguish between open Internet and specialized services.

If we fail to correct this oversight while encouraging the advancement of the WSIS project, we are encouraging the establishment of networks in developing countries that do not reflect the key strengths of the Internet, and we are encouraging a fundamental reshaping of what the term Internet means as we implement governance within this framework. This is a critical concern for the upcoming WTDC, the WSIS+10 process, the development of the ITU Strategic Plan, as well as various proceedings underway related to international Internet governance and Internet-related public policy and developments in telecommunications at the national level.

Recommendations:

WSIS Indicators, including WSIS+10

  • Revise the measures used to assess the performance of the WSIS project to quantify the status of application-independent packet transmissions separately from transmissions that tailor the treatment of packets according to application, to enable tracking trends related to open Internet services, both in terms of availability of open Internet and in terms of the influence of open Internet connectivity on WSIS goals.
  • Alternately, begin a process to develop common understanding of key characteristics of the Internet to support identification and tracking of trends and effects of WSIS processes; in the meantime, revise the WSIS indicators to use the general term “IP-based networks” wherever they presently use the term “Internet.”
  • Identify and track vertically integrated communications environments separately from contexts assuring competitive access to physical layer infrastructure.
  • Since a network of autonomous networks supports network neutrality naturally since individual networks cannot predict the applications that other networks and their user will be using and supporting, introduce a measure of the number of network providers of various types per geographical region.
  • Other characteristics useful in understanding whether networks are open include:
    • blocking or monitoring of ports, particular applications, or servers
    • blocking or monitoring traffic for spam, other undesirable content, copyright infringement, anti-government activities or for other purposes
    • symmetric or asymmetric upload/download capacity
    • capacity caps
    • whether the network is on lines that are subject to competitive access by regulation
    • whether network neutrality is established by regulation at the information service level
    • whether the lines are subject to traffic shaping based on application or content
    • whether general purpose, application-independent traffic can be impinged on by specialized services on the same lines
  • Develop protocols to notify users when transient traffic shaping is occurring because of temporary congestion issues.
  • Recognize and consider the progress and effects of the WSIS project in the WSIS+10 review process frankly in terms of the above distinctions, addressing availability of the Internet’s characteristics and advantages that are uniquely conducive to WSIS and broader UN goals, as well as effects of different types of networks on these goals and on each other.

2014 Plenipotentiary Conference

  • Correct confusion in key terms “Internet,” “IP-based networks,” and “next-generation networks” in Internet-related resolutions, including PP 101, 102, 133 and 137
  • Address these types of networks distinctly and explicitly rather than using general terms such as ICTs or ICTs/telecommunications
  • Address vertically-integrated policy environments and policy environments assuring competitive access to physical layer infrastructure by independent providers distinctly and explicitly rather than using terms that are indefinite on this distinction such as “pro-competitive policies.”
  • Address conformance and interoperability in two distinct senses: technical compatibility including between autonomous networks, such as is already supported by application-independent packet transmissions; and interoperability based on adherence to a common policy. In developing policy and technological solutions, recognize and address impacts on the universal form of interoperability already provided by the Internet’s basic design.

ISIC and Technical Barriers to Trade Agreement

  • Assure that shared physical infrastructure telecommunications is recognized as supporting the Internet by specific reference to the term.
  • Develop industry categories based on Internet as one information service among others, as distinguished from provision of physical infrastructure, whether vertically integrated or subject to polices for competitive access
  • Alternately, begin a process to address implications for the ISIC and TBT Agreement of recognizing that industry sectors that assure competitive access to physical layer infrastructure provide a resilient foundation for an Internet that retains its key characteristics of flexibility, openness, interoperability and inherent neutrality. In the meantime replace usage of the term Internet in the ISIC definitions with the general term “IP-based networks.”
  • Address conformance and interoperability in two distinct senses: technical compatibility including between autonomous networks, and interoperability based on adherence to a common policy. In developing industry categories, engage openly with stakeholders in recognizing impacts that schemes such as the present distinction between content creation and telecommunications might have on the open Internet platform, as claims are brought against technologies that may support more flexible and collaborative relationships to shared and published information.

United Nations Agencies

  • Incorporate recognition of distinctions between types of networks, including key characteristics of the open Internet, in framing the contribution of technologies and development programs to broader UN goals.

Internet Governance, including Enhanced Cooperation, NETMundial, Proceedings on Internet-related Public Policy Issues

  • Establish recognition of key characteristics of the Internet prior to developing policies or systems of governance.
  • Implement a process that places recognition of the universal form of maximal interoperability already established for the Internet in a position prior to policies endorsed under the rubric of “Internet Universality,” which may otherwise support interoperability in the sense of adherence to common policy without providing adequate channels for addressing impacts on the platform.
  • Assure that policy contexts and development initiatives are framed in terms that recognize that the modularity and flexibility of the Internet derives from the dynamic that arises among autonomous providers that have competitive access to the physical layer.

Comments Off on WSIS Performance Measures: Understanding Impacts on the Internet : more...

To State Dept: Impact Analysis (WSIS Performance Measures)

by on Mar.25, 2014, under Uncategorized

(Click here for blog post version of this commentary)

———- Forwarded message ———-
From: Seth Johnson
Date: Tue, Mar 25, 2014 at 9:55 PM
Subject: WTDC/Plenipot: 4) Impact Analysis: Understanding Impacts on the Internet (was: Re: Critical Notes for WTDC Prep)
To: “[protected]” , “Zoller, Julie N” , Paul Najarian

(also WSIS+10 and Strategic Plan and other areas leading up to the Plenipot and the UN’s processes next year)

Hello Julie, Paul, ITAC, and all,

The following is the final component of the analysis of the ITU’s resolutions related to the upcoming WTDC that I have developed for ITAC, designed to identify revisions needed to assure that the WSIS project has an ability to recognize when its initiatives will affect the Internet. While performance measures come under the topic of impact analysis, to be addressed at the WTDC within ITU-D Study Group 1’s areas of concern, this part affects future phases and does not call for revisions in WTDC resolutions, but rather in the definitions for the ITU’s WSIS indicators, as well as various other related elements of the overall context.

The problems I show within the measures by which the ITU is assessing the success of the WSIS project reveal that the project’s effects on the Internet are systemic, built into the basic premises served by the project. As a result, the concern that the project will undermine the Internet cannot be addressed by a partial or incremental approach, but by explicitly addressing the question.

This is long, and will be posted in blog form shortly, with internal links. For now, you might read the Introduction and then the Recommendations/Conclusions at the end for the quickest precis. Next might be to jump to the Implications heading, where I apply the analysis to address implications for Internet Governance and the domestic FCC/”IP Transition” contexts.

Then I suppose it’s most interesting to go up and examine the relationship to the Technical Barriers to Trade Agreement and how the Conformance and Interoperability and Broadband deployment study questions relate.

Seth

Introduction:

In the first week of December the World Telecommunications Indicators Symposium (WTIS) met in Mexico City and endorsed the latest set of revisions to the indicators by which the ITU will measure the progress of the WSIS project. The Experts Group on Telecommunications Indicators (EGTI) met just prior to the WTIS to prepare inputs based on their discussions in the preceding months.

The indicators adopted at these meetings show how the WSIS project as a whole will have critical effects on key characteristics of the Internet. They fail to distinguish the Internet from other types of IP-based networks, or to distinguish the open Internet from specialized services. They are also based on a set of definitions for the telecommunications sector that does not clearly provide for legal traditions such as common carrier that assure competitive access by autonomous Internet providers to physical layer infrastructure.

The following presents the usage of the term Internet in the ITU’s measures and offers comments placing the analysis in the broader context, then offers a set of recommendations. The broader context includes factors such as the WTO’s Technical Barriers to Trade Agreement, proposals for study questions on broadband and conformance and interoperability testing being pursued for the WTDC, and the notion of convergence that underlies the WSIS project. It also includes various proceedings presently underway, including the “IP Transition” at the FCC in the United States, discussions in different fora on the nature and scope of enhanced cooperation in the WSIS project and on the role of governments in a number of Internet-related public policy areas, as well as on international Internet governance in general, the WSIS+10 review of status, the development of the ITU’s Strategic Plan for the next 4-year cycle, and ITU-D’s processes for promoting ICT development and investment in infrastructure as framed by WTDC-related ITU resolutions.

Definitions/Usage of Terms

The ITU’s WSIS Indicators

The EGTI and WTIS resolved to update the ITU’s core indicators to conform to the definitions in the ITU’s 2011 Handbook for the Collection of Administrative Data on Telecommunications/ICT (http://www.itu.int/pub/D-IND-ITC_IND_HBK-2011).

These indicators include:

– Fixed telephone subscriptions
– Mobile-cellular telephone subscriptions
– Fixed/wired broadband Internet subscriptions
– Wireless broadband subscriptions
– International Internet bandwidth
– Percentage of the population covered by at least a 3G mobile network
– Fixed broadband Internet prices
– Mobile cellular telephone prepaid prices

The following were deleted:

– Fixed internet subscribers (which included dialup and other fixed broadband)
– Percentage of localities with public Internet access centres (PIACs)

The following indicators were added to the above:

– Mobile broadband Internet prices
– TV broadcasting subscriptions

Some of these core indicators also play a part in the ITU’s ICT Development Index and Revenue and Investment indicators, key elements of the ITU’s annual report, Measuring the Information Society.

Recent work by the EGTI and the ITU has focused on developing indicators for mobile broadband prices and backbone transmission networks. This work has translated into the addition of “mobile broadband Internet prices” to the core indicators (inserting the term Internet with the present permutation) and contributes to the “international Internet bandwidth” core indicator.

I have attached the relevant parts of these sets of definitions in concise form.

ITU Definitions: Broad Usage of the Term Internet

All of the subcategories that make up the ITU’s definitions for fixed/wired and wireless broadband could just as well represent networks providing specialized services as open Internet. But the ITU Handbook’s definitions for the fixed and wireless broadband subcategories — cable, DSL, FTTH/B and “other” for wired, and satellite, terrestrial fixed, and active-mobile for wireless — simply present them with reference to the term Internet.

The ITU’s definitions for the international Internet bandwidth measure, and for both fixed and mobile broadband Internet prices, also reference the term Internet while not distinctly addressing specialized services. A correlative measure in the ITU Handbook for domestic Internet bandwidth, not as yet included in the core indicators, also shows this pattern. No distinction is made between the Internet and particular networks that may shape packet transmissions to support specialized functions within themselves.

Both the ICT Development Index and the Revenue and Investment indicators incorporate the fixed/wired and wireless broadband core indicators, thereby incorporating the same problem.

Recent work by the EGTI and the ITU has focused on developing measures for mobile broadband prices and backbone transmission networks. The status of the interactive backbone map project was reported at the WTIS. Just as for the core indicators and the ICT development and revenue and investment measures, these analyses of fixed and wireless broadband prices or domestic and international backbone capacity do not incorporate a recognition of a distinction between open Internet and specialized services.

While ITU’s resolutions for the WSIS project more generally make numerous references to the key terms IP-based Networks, Internet and Next-Generation Networks (NGNs) (though without actually distinguishing the terms clearly) the indicators the ITU is using to measure progress for the WSIS project, as well as the analyses built upon these indicators in their annual Measuring the Information Society report, do not provide for any distinction among these types of networks at all. This is a clear indication that the WSIS project as it is currently designed will allow managed services to supplant and be confused with the open Internet — exactly in accord with the FCC’s projections in its “Further Inquiry into Two Under-developed Issues in the Open Internet Proceeding” (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-1667A1.pdf). Also see the Joint Statement on Advancing Open Internet Policy Through Analysis Distinguishing Open Internet from Specialized Network Services (https://internetdistinction.com/statement/).

ISIC Definitions: Internet Associated with Vertically Integrated Telecommunications Contexts

While the core indicators use the term Internet in a broad way that fails to recognize the difference between open Internet and networks offering specialized services, the ITU’s definitions of its revenue and investment measures use the term in a more particular way as it specifies industry categories to be included or excluded. The revenue and investment measures are based on the definitions for the telecommunications sector in the International Standard Industrial Classification (ISIC), Revision 4 (http://unstats.un.org/unsd/cr/registry/regcs.asp?Cl=27&Lg=1&Co=61), which is used as a basis for the WTO’s Technical Barriers to Trade agreement, described below.

The ISIC breaks telecommunications into four categories: wired, wireless, satellite and other. For wired, the term Internet is referenced solely in connection with the category of “provision of Internet access by the operator of the wired infrastructure,” while a separate category provides for operators “purchasing access and network capacity from owners and operators of networks and providing telecommunications services using this capacity.” The former category clearly represents a vertically integrated telecommunications context. The latter category represents access to physical infrastructure but not necessarily infrastructure subject to a policy context assuring competitive access by independent Internet providers. It also, in contrast with the former category, makes no reference to the term Internet. The wireless and satellite categories in the ISIC definition of the telecommunications sector show a similar pattern.

Incumbents who are allowed by the policy context to treat the physical layer infrastructure largely as vertically integrated assets within their own processes for producing higher level information services might well lease access to that infrastructure to other providers without a policy mandating that they do so. However, in the experience of the US, where this type of policy context has been established, we have not seen this practice arise on a basis that assures equitable access and rates.

For nearly the entire period since the initiation of the WSIS project — which might be designated by the 2003 Geneva and 2005 Tunis WSIS events — the United States’ application of its Communications Act has been framed by a series of findings, issued by the FCC in 2002 for cable and in 2004-2005 for other modalities, that not only deregulated Internet service but also the physical infrastructure over which telecommunications transmissions are carried. These findings neutralized the legal foundations of the Communications Act in public franchise law and common carrier obligations which up until then had assured competitive access to the physical layer by independent, autonomous Internet providers.

The FCC’s 2005 Wireline Order (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-150A1.pdf) stated the incumbents were free to lease their lines (see paragraphs 86-95), but in fact thousands of autonomous, competing ISPs closed operations as a result of these findings, thereby eliminating the open and neutral Internet platform that had arisen among them up until then as a natural reflection of their need to interoperate with each other. The FCC is currently positioned to continue to apply this same policy framework within the context of the WSIS initiatives that these indicators are intended to measure, as well as in the context of the TBT agreement, as the US pursues its “IP Transition.”

The ISIC also uses the term Internet in a set of diverse categories combined under the “other” heading, including Internet access over networks between the client and the ISP not owned or controlled by the ISP (such as dial-up), telephone and Internet access in facilities open to the public, telecommunications services provided over telecommunications connections, such as VoIP and telecommunications resellers, and specialized applications such as satellite tracking and telemetry. These categories are distinguished from the main wired, wireless and satellite telecommunications categories.

Conformance and Interoperability and Promoting Broadband: the Role of the Technical Barriers to Trade Agreement

The ISIC definitions show the relationship of the WSIS project and WTDC initiatives to the Technical Barriers to Trade agreement (http://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm). The relevance of the Technical Barriers to Trade agreement can be seen particularly in the work in the ITU-D sector on “Conformance and Interoperability” assessment, including a Study Question proposed by the US on “Conformance Testing,” which reflects the provisions of the TBT agreement calling for WTO Member States to uphold harmonized conditions for international trade in part through conformance testing.

Conformance and interoperability testing might become a basis for enabling government or privileged providers to promote new types of networks by appealing to intergovernmental standards, without distinguishing them from the Internet or recognizing the tradeoffs these types of networks bring as compared to open internetworking between networks. This could be a problem if these standards work against connectivity in the form the Internet makes possible, or if their promotion allows something different to be called Internet.

Study Question 25 on promoting broadband emphasizes IMT, the ITU’s term for the 3G/4G wireless managed services framework, and can also be related to the TBT agreement. Both the ITU’s notion of broadband in this study question and the use of the term Internet in the ISIC’s definition of the telecommunications sector underlying the TBT agreement suggest a move to approaches to services and infrastructure that reflect the US’s emphasis on a vertically integrated telecommunications environment while overlooking other approaches such as those based on public franchise law and common carrier obligations.

The TBT agreement aims at ensuring that technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to international trade (http://www.who.int/mta/Doc8.doc). Under the TBT, technical regulations may only be developed for legitimate objectives (such as security, preventing deceptive practices, protecting health and safety or protecting the environment). Members are encouraged to base their technical regulations, standards, and conformity assessment procedures on international standards and to develop conformity assessment procedures to generate confidence that products conform with applicable technical regulations or standards. Members are called to accept each other’s technical regulations as equivalent until international harmonization is achieved and to enter into mutual recognition agreements (MRAs) for the acceptance of each other’s assessment results. The TBT Agreement also authorizes special and differential treatment for developing countries based on a number of considerations (http://www.ustr.gov/sites/default/files/2013%20TBT.pdf).

When we consider the combination of the broad use of the term Internet in the ITU’s WSIS indicators with the more particular use of the term in the ISIC definitions for the telecommunications sector, we recognize that these measures represent a WSIS project whose structure fits readily into an international policy framework to implement a more specialized service version of connectivity, in contexts that do not necessarily support competition at the physical layer. We also see that the TBT agreement is situated to potentially play a part in enforcing this arrangement.

OECD Recommendations: Introducing De-convergence

The EGTI endorsed a set of recommendations by the OECD regarding what to include or exclude in the Revenue and Investment measures in light of general scheme governing the ISIC industry categories. The implications of these recommendations are notable in relation to the notion of convergence that undergirds the WSIS project. The addition of the “TV broadcasting subscriptions” measure to the core indicators at the WTIS is also significant in this connection.

OECD Recommendations:

The OECD recommendations note that discrepancies in data reporting based on questions regarding what should be included under the term telecommunications and what should not will continue to be a problem given the phenomenon of convergence. They offer guidance by applying the principle by which the ISIC differentiates the telecommunications sector — as made up of those entities that transmit information while not being involved in content creation. The ISIC distinguishes the telecommunications sector from other industrial categories under the broader heading of “information and communications” on this basis (http://unstats.un.org/unsd/cr/registry/regcs.asp?Cl=27&Lg=1&Co=J).

The OECD explains that in the case of a cable operator that produces TV content, revenues from sales of rights to the content should be excluded, while revenues from subscriptions to cable programming should be included. In further guidelines they indicate that free-to-air TV relates to content creation from traditional broadcasters and should therefore be excluded, but IPTV should be included because it deals with distribution by telecommunication operators. Pay digital terrestrial television channels relate mainly to content creation and should be excluded, while cable TV and satellite should be included where their activity relates to Internet or multichannel distribution, but not where they are producing TV content.

To identify investments within these industrial categories, they recommend a formula including expenditures on fixed telecommunications network assets (tangible and intangible), less assets that have been disposed of. They include research and development, and exclude operating license or radio spectrum fees, since these are often lump sums that would disrupt the consistency of time series analyses across countries and businesses.

For revenues, they recommend one measure for all telecommunications and a separate one for mobile telecommunications. Telecommunications revenues include retail fixed-telephone, mobile-cellular, Internet, and data services, while excluding revenues from content creation. This is to include transmission of TV signals, and to exclude wholesale sources such as interconnection. Mobile revenues include revenues from all voice, SMS and data, including value added services like premium SMS, while excluding wholesale revenues from termination, origination, and transit rates or inbound roaming.

In this way, the OECD recommendations for the revenue and investments measures use the ISIC definition to distinguish the telecommunications sector from other categories in the “information and communications” sector, for broadcasting and programming, print media and software publishing, movie, TV, sound and music publishing, computer programming and consultancy, and information services such as data processing and web portals.

These definitions of the revenue and investment measures are notable because so much of the motivation for the WSIS project is based on the notion of convergence. Despite the WSIS project’s appeal to convergence as a general trend bringing about dramatic changes, warranting a call for stakeholder participation in the development of a governance system that appreciates the significance of the changes, in fact the use of the ISIC definitions in the ITU’s measures represents a form of “de-convergence” built into the WSIS project. It creates a schema that distinguishes telecommunications from content creation in general and a number of other “information and communications” industry categories. The implications of this de-convergence have yet to be acknowledged in the WSIS proceedings.

Convergence in the WSIS Project

The notion of convergence that governs the WSIS project is also notable, since it also implies networks that uphold policies that might not be readily applied in the open Internet context. We see in the ITU’s WSIS measures a transition from a phase of the WSIS project wherein convergence has been generally appealed to as a historical force the best development of which the project seeks to foster, to a phase in which systems to support a particular form of de-convergence are implied in the basic terms according to which the WSIS project measures its success.

It should be noted that not all functions can be converged with an Internet comprised of autonomous routers using the Internet Protocol to interoperate. Perhaps the most noted example is quality of service (QOS) in the form of prioritizing particular application transmissions. This can generally be done best within individual networks or across sets of contracting networks, since independent networks cannot be expected to apply the same priority to packets as is applied within the network where they originated and where they were designated for specialized treatment. Other specialized services may also apply policies that are similarly suited to intranet contexts rather than networks of autonomous interoperating networks.

Numerous documents related to the WSIS project incorporate references to convergence, using the term in a wide variety of senses. Perhaps the instance that uses the term in a way that most clearly designates the type of network foreseen as the outcome of convergence, is the 2013 WCIT’s background document on convergence, at http://www.itu.int/en/wcit-12/Documents/WCIT-background-brief3.pdf:

“There is no single definition of convergence. However, a key innovation is the transformation from circuit-based telecommunication networks to packet-based ones using the Internet protocol (IP): so-called next-generation networks, or NGN. The “vertical” structure of independent networks is evolving into a “horizontal” structure based on IP that can deliver many kinds of content through a single platform. This has profound implications for the market, regulators, and ultimately the expansion of communications to people everywhere.”

This conception of convergence is notable in at least two ways: in its simple identification of IP packet-based networks with next-generation networks, and in its contrasting of a single IP-based platform against a network made up of independent networks, treated as a previous stage of evolution. This presentation is probably the most direct indication that may be found in the WSIS documents of an outcome in mind that is not a network of networks, but a single platform in which discrete individual providers might take part, but in which they would not be fully autonomous and competitive networks interoperating neutrally. In referring to the packet-based networks that are to replace legacy circuit-based telecommunications networks as “next-generation networks” or “IP-based networks,” this presentation glosses over the distinction between the Internet as a network of networks using IP packet transmissions to interoperate with each other, and other types of IP-based networks that may implement specialized treatment of packets by instituting a common policy across routers under their control.

Instead WSIS documents and notably the ITU’s resolutions tend to use the term “ICTs” and present many signs of a trajectory toward establishing a next-generation network framework like that described above, which would support ICT applications related to a number of policy areas.

Plenipotentiary Resolution 31, from the 2002 Marrakesh conference, directly identifies the concept of convergence with the term ICTs, referencing “the convergence of telecommunication and computer technologies and services, referred to as information and communication technologies (ICT)” as “an agent of change for the information age.” Plenipotentiary Resolution 137, from the 2010 Guadalajara conference, promotes the deployment of next-generation networks in developing countries. Similar references to convergence and ICTs can be found in Plenipotentiary Resolution 71, the ITU’s Strategic Plan for 2012-2015, and in Plenipotentiary Resolution 139, on telecommunications/ICTs to bridge the digital divide. The Geneva and Tunis WSIS outcome documents and the 2010 WTDC’s Hyderabad Declaration also make extensive references to ICTs in this sense.

The Broadband Commission’s 2012 State of Broadband Report enumerates several types of convergence consistent with the notion of new networks supporting ICT Applications (http://www.broadbandcommission.org/Documents/bb-annualreport2012.pdf). These include convergence of ICT policy with various policy areas such as energy, health, education and the climate, a notion of an “economical balance” among converging services, positioned as a strategy to connect new subscribers, convergence of regulatory spheres such as telecommunications, radio and television given that combined (“triple play”) services make separate regulation difficult, and the proposal of simplified or unified licensing regimes designed to support any telecommunications provider offering any services, on a basis of assuring that consumer rights and market competitiveness are protected.

WTDC Resolutions 54, 72 and 74, on ICT applications, effective usage of mobile communications, and e-government services, also reflect this notion of ICT Applications through new networks, while failing to provide a basis for recognizing when these types of telecommunications environments may have impacts on the nature and advantages of the open Internet. WTDC Resolutions 34, 63, 65, and 66, and WTSA Resolutions 47, 48, 49, 64 and 73 represent more particular ICT applications, including disaster preparedness, healthcare services, ICTs for climate change, IPv6 and IP address allocation, country code Top Level Domains (ccTLDs), Internationalized Domain Names (IDNs), and ENUM.

We note the role of the concept of convergence in order to show the significance of the fact that the ITU’s WSIS measures actually represent a de-convergence in service of a distinction between content creation and telecommunications. The position of the notion of the Internet in relation to these categories is still unclear, but 1) the WSIS project is proceeding in a manner that confuses the nature of the Internet in service of networks that may support convergence in the form of ICT Applications of various sorts, while 2) the process already incorporates a de-converged framework that is not being acknowledged in the general discourse, one of great significance from the standpoint of the Internet’s support for shared information and collaboration.

Implications

A few observations follow on the implications of the above analysis in the context surrounding the WSIS project.

Internet Governance and “Internet Universality”

In recent developments in the Internet governance arena, Brazil has responded to revelations of US government surveillance by initiating proceedings to develop a frame for international Internet governance in some way independent from the role of the US. Subsequently the US’s NTIA has announced its willingness to release core IANA functions to oversight by global multistakeholder processes, stipulating while doing so that it would not support a framework that was governmental or inter-governmental in nature.

However, the WSIS project incorporates elements of inter-governmental agreement in terms of the way in which the pursuit of the project has been framed, and the WSIS measures represent the bases by which the progress of these processes are to be assessed. The 2010 Plenipotentiary conference issued a set of resolutions setting an inter-governmentally endorsed framework within which the ITU would conduct proceedings in its radio (ITU-R), standards (ITU-T) and development (ITU-D) sectors in accord with WSIS and broader UN parameters. Indeed, the confusion in the WSIS measures regarding the distinctions between Internet connectivity and other types of IP-based connectivity can be traced to certain key resolutions issued by the 2010 Plenipotentiary conference.

Two submissions to Brazil’s Netmundial conference are of great potential significance in relation to the inter-governmental frame set at the 2010 plenipotentiary conference, and to the framework of industry categories embodied in the ITU’s WSIS measures. Verizon’s submission makes specific reference to the Technical Barriers to Trade agreement, with its relationship to conformance assessment and the ISIC categories (http://content.netmundial.br/contribution/keywords-internet-investment-innovation-competition-multistakeholder-standards-human-rights/184.pdf). UNESCO has called for recognition of a principle of “Internet Universality” the significance of which can be understood in light of the question of whether the type of interoperability already made possible among autonomous networks by the Internet will be recognized in processes that so far do not adequately recognize that key characteristic (http://content.netmundial.br/contribution/internet-universality-a-means-towards-building-knowledge-societies-and-the-post-2015-sustainable-development-agenda/151).

The 2010 Plenipotentiary resolutions called for the WTSA and WTDC proceedings to be conducted with open consultancy processes (PP 178, PP 140). At the same time, though, they stipulated that the WTSA was to be framed by the strategic goals of the WSIS outcome documents (PP 122), and the WTDC was to be framed within the terms of the broader UN Development Program and the UN Millennium Goals (PP 135). The WTSA was concluded in 2012 and its outputs include resolutions recognizing the ITU-T sector’s work on certain “more technical” topics, including various standards related to Names, Numbers, Addresses and Identifiers (NNAIs), including ENUM and more indirectly the system for digital identifiers described in ITU-T Recommendation 1255.

These standards are potentially critical in relation to a notion of “Internet Universality,” as they can be used to support a conception of interoperability on the basis of assuring adherence to common rules, potentially by validation of identifiers, rather than recognizing interoperability as an inherent attribute already available from the maximally flexible platform produced by using IP to interoperate among autonomous networks. Some functions implemented as “universal” by assuring conformance with common rules could interfere with the open design for interoperability across autonomous networks already provided by the Internet Protocol and the fundamentally flexible nature of the platform that results.

The WTSA outcomes for the ITU’s standardization sector already enjoy inter-governmental support since they fulfill 2010 Plenipotentiary instructions, and anyway are subject to inter-governmental review again in the regular 4-year ITU cycle, with the next Plenipotentiary conference closing the current cycle later this year. The open consultancy process associated with the WTSA also serves to politically affirm and validate the framework set in the 2010 Plenipotentiary resolutions. This includes, unfortunately, the confusion in the terms Internet, IP-based networks and Next-generation networks presently embodied in the Plenipotentiary resolutions.

UNESCO presents its “Internet Universality” proposition as an outcome of the UN GIS and WSIS+10 processes, relating the proposition more closely to the process of reviewing the success of the WSIS project and the broader UN frame that sets the limits for the WTDC than to the WSIS outcome documents that set the boundaries for the WTSA. Whereas the WTSA endorsed more abstract and “more technical” standards according to strategic goals in the WSIS outcomes, the WTDC will endorse more concrete technology solutions and policy frameworks for developing countries throughout the world in accord with UN purposes and a determination of the success of the project that fail to recognize the impacts these initiatives will have on the Internet — serving through its own open consultancy process as a political affirmation and validation of these components of the WSIS project as well as the 2010 Plenipotentiary framework.

It stands to reason that if the present confusion in the 2010 Plenipotentiary resolutions and the ITU’s WSIS measures is not clarified, then “Internet Universality” could be implemented in ways based on a new conception of the meaning of the term Internet that would undermine the inherently open form of universal interoperability that is already built into the design of the IP layer, and this new framework could be enforced by means of conformance assessment processes in support of the Technical Barriers to Trade agreement.

The FCC’s “IP Transition”

The fact that both the ITU’s measures and the US’s draft of the broadband study question fail to distinguish open Internet from specialized services and both are elaborated in terms consistent with vertical integration, without referencing the Internet in contexts supporting competitive access at the physical layer, may explain much of the FCC’s approach to the “IP Transition” in the United States.

The FCC is presently engaged in an “IP Transition” that does not clearly represent a transition to an Internet platform, though it might seem that way. The IP Transition designates a process of encouraging experiments by network providers to deliver connectivity in new ways using IP-based networks, independent of regulatory principles that have applied to traditional telecommunications, as a result of the fundamental changes in the regime wrought by IP communications. These IP experiments are to examine impacts on principles of public safety, universal access, competition and consumer protection. The Technology Transition Task Force indicates that this process is to be conducted with the use of clear and consistent definitions and metrics that allow results to be aggregated across experiments.

However, there is little sign of attention by the FCC to the distinction between Internet and specialized services that it examined during the Open Internet proceeding, in its “Further Inquiry into Two Under-developed Issues in the Open Internet Proceeding” (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-1667A1.pdf).

The characteristics of the WSIS measures I have described above are fully consistent with an IP Transition to the type of next-generation IP-based networks to support ICT applications that the WSIS project is presently designed to foster — failing to recognize distinctions between open Internet and specialized services or among the terms Internet, IP-based networks and next-generation networks, and referencing the Internet in relation to vertically integrated telecommunications.

In fact, the recent addition of the TV subscriptions indicator to the core indicators, combined with the incorporating into the revenue and investment measures of a de-converged framework based on distinguishing video and content creation from other information and communications industry sectors, might reasonably lead one to wonder how much we can attribute to coincidence the facts that nearly at the same time Comcast is moving to consolidate Time Warner Cable and making a critical move to a direct interconnection arrangement with Netflix, with Verizon announcing it intends to reach a similar arrangement with Netflix. Indeed, concurrent activities related to copyright also might lead one to ask a similar question: the US’s pursuit of an international broadcaster’s right, its position in the Aereo case, and the US PTO’s proceedings on numerous aspects of digital copyright. Similar copyright-related developments are also underway in the European Union.

FCC Commissioner Tom Wheeler presumes a vertically integrated context and describes his approach to ensuring the open Internet in a manner consistent with the WSIS impetus toward implementing networks designed to support key ICT applications. He appears to advocate an “Internet ecosystem” approach to policy and to take an approach to analysis of telecommunications policy choices consistent with the principles of the framework which was articulated by Joseph Farrell and Philip J. Weiser in 2003 and which was a key citation in the FCC’s 2005 Wireline Order, presenting a basis for understanding the dynamics of vertically integrated platform providers engaging in application markets dependent on their platform (http://jolt.law.harvard.edu/articles/pdf/v17/17HarvJLTech085.pdf).

In Ensuring an Open Internet Now and for the Future (https://www.fcc.gov/blog/ensuring-open-internet-now-and-future), he bases the necessity of government oversight on the facts that broadband networks support essential services for society, and there are likely to be few such networks, stating that this condition means they are likely to enable exercises of market power.

He characterizes concerns expressed in the NN debate in relation to a process of developing policy decisions regarded as a “work in progress” and in light of Michael Powell’s Open Internet Principles. He articulates his approach in terms of a dynamic constituted of weighing concerns of producers and consumers, such as that network operators will make moves that cut off or diminish the value of the Internet, or that the FCC will intrude on network operators in ways that cause economic harm or inhibit their ability to offer improved service, declaring that he will avoid either interfering with practices that produce efficiency and enhance competition, or allowing practices that reduce those characteristics.

This approach consistently overlooks recognition of the basis of the Internet in the problem of interoperating among autonomous network providers, which had ready, competitive access to physical infrastructure up until the 2002-2005 timeframe in the United States, and consequently provided an open, neutral and universally interoperable platform up until then to all providers and end users taking part in the network of networks established among them on the basis of the TCP/IP protocol. Wheeler’s reference to Title II in his response to the DC Circuit’s ruling on the Open Internet rules may seem to suggest the use of Title II (if its usefulness becomes apparent to the FCC) as a basis for establishing net neutrality by setting rules on information service providers at a higher level, rather than simply as a basis for applying common carriage principles at the physical layer, thereby opening it up to competing providers and reestablishing the original dynamic.

It should be noted that Farrell and Weiser describe the modularity of the Internet within their framework in terms that do not acknowledge it as an emergent property of autonomous networks interoperating, but more in terms that treat it as deriving from decisions of the network provider. They frame the question of how to assess acts by vertically integrated platform providers wherein they take part in or exert influence on complementary application markets dependent on their platform to various degrees or not, in light of effects on efficiency in delivering information services which derive from their vertical integration. They do not phrase the question, however, of how the advantages of a dramatically flexible platform wide open to independent innovation that emerges as a consensus solution to interoperation among independent competing providers (not the applications that stem from that platform, but the platform itself that so arises) should be considered against the efficiencies in delivering the particular services of a vertically integrated provider.

Farrell and Weiser also reference the definition of the Internet issued in 1995 by the Federal Networking Council in connection with their treatment of the modularity of the platform that lies at the center of their analysis. This definition of the Internet was notable at the time for referencing the TCP/IP protocol (http://2001-2009.state.gov/e/eeb/cip/wsis2005/50918.htm), but its suitability for representing the Internet is a mirage. It essentially reduces the Internet to the collection of networks that use IP addresses, citing the Internet Protocol solely for its reference to those identifiers in the header fields of Internet Protocol packets, while making no reference to what IP packets accomplish in terms of providing a layer that enables maximal interoperability between autonomous networks. The FNC definition thus represents an early basis for the present confusion in terms, whereby individual networks that may be performing esoteric functions within themselves while using TCP/IP, and which may thus properly be called “IP-based,” are easily confused with the network of networks that the concept of internetworking represents and that the Internet Protocol was designed to enable.

The FNC definition was also issued at a time when the telecommunications policy context in the United States supported competitive access to the physical infrastructure layer, so the basis of the dynamic of the Internet platform in a policy context that originally assured competition among autonomous network providers at the physical layer was perhaps too implicit to be explicitly acknowledged as a factor in sustaining its most profound characteristics: its flexibility, openness, interoperability and inherent neutrality.

Recommendations/Conclusion

In the measures that it uses to assess its progress the WSIS project is systemically designed to implement telecommunications network environments that do not distinguish between the Internet made up of interoperating autonomous networks and other types of IP-based networks, and thus that fail to distinguish between open Internet and specialized services.

If we fail to correct this oversight while encouraging the advancement of the WSIS project, we are encouraging the establishment of networks in developing countries that do not reflect the key strengths of the Internet, and we are encouraging a fundamental reshaping of what the term Internet means as we implement governance within this framework. This is a critical concern for the upcoming WTDC, the WSIS+10 process, the development of the ITU Strategic Plan, as well as various proceedings underway related to international Internet governance and Internet-related public policy and developments in telecommunications at the national level.

Recommendations:

WSIS Indicators, including WSIS+10:

Revise the measures used to assess the performance of the WSIS project to quantify the status of application-independent packet transmissions separately from transmissions that tailor the treatment of packets according to application, to enable tracking trends related to open Internet services, both in terms of availability of open Internet and in terms of the influence of open Internet connectivity on WSIS goals.

Alternately, begin a process to develop common understanding of key characteristics of the Internet to support identification and tracking of trends and effects of WSIS processes; in the meantime, revise the WSIS indicators to use the general term “IP-based networks” wherever they presently use the term “Internet.”

Identify and track vertically integrated communications environments separately from contexts assuring competitive access to physical layer infrastructure.

Since a network of autonomous networks supports network neutrality naturally since individual networks cannot predict the applications that other networks and their user will be using and supporting, introduce a measure of the number of network providers of various types per geographical region.

Other characteristics useful in understanding whether networks are open include:

blocking or monitoring of ports, particular applications, or servers
blocking or monitoring traffic for spam, other undesirable content, copyright infringement, anti-government activities or for other purposes
symmetric or asymmetric upload/download capacity
capacity caps
whether the network is on lines that are subject to competitive access by regulation
whether network neutrality is established by regulation at the information service level
whether the lines are subject to traffic shaping based on application or content
whether general purpose, application-independent traffic can be impinged on by specialized services on the same lines

Develop protocols to notify users when transient traffic shaping is occurring because of temporary congestion issues.

Recognize and consider the progress and effects of the WSIS project in the WSIS+10 review process frankly in terms of the above distinctions, addressing availability of the Internet’s characteristics and advantages that are uniquely conducive to WSIS and broader UN goals, as well as effects of different types of networks on these goals and on each other.

2014 Plenipotentiary Conference:

Correct confusion in key terms “Internet,” “IP-based networks,” and “next-generation networks” in Internet-related resolutions, including PP 101, 102, 133 and 137.

Address these types of networks distinctly and explicitly rather than using general terms such as ICTs or ICTs/telecommunications

Address vertically-integrated policy environments and policy environments assuring competitive access to physical layer infrastructure by independent providers distinctly and explicitly rather than using terms that are indefinite on this distinction such as “pro-competitive policies.”

Address conformance and interoperability in two distinct senses: technical compatibility including between autonomous networks, such as is already supported by application-independent packet transmissions; and interoperability based on adherence to a common policy. In developing policy and technological solutions, recognize and address impacts on the universal form of interoperability already provided by the Internet’s basic design.

ISIC and Technical Barriers to Trade Agreement:

Assure that shared physical infrastructure telecommunications is recognized as supporting the Internet by specific reference to the term.

Develop industry categories based on Internet as one information service among others, as distinguished from provision of physical infrastructure, whether vertically integrated or subject to policies for competitive access

Alternately, begin a process to address implications for the ISIC and TBT Agreement of recognizing that industry sectors that assure competitive access to physical layer infrastructure provide a resilient foundation for an Internet that retains its key characteristics of flexibility, openness, interoperability and inherent neutrality. In the meantime replace usage of the term Internet in the ISIC definitions with the general term “IP-based networks.”

Address conformance and interoperability in two distinct senses: technical compatibility including between autonomous networks, and interoperability based on adherence to a common policy. In developing industry categories, engage openly with stakeholders in recognizing impacts that schemes such as the present distinction between content creation and telecommunications might have on the open Internet platform, as claims are brought against technologies that may support more flexible and collaborative relationships to shared and published information.

United Nations Agencies:

Incorporate recognition of distinctions between types of networks, including key characteristics of the open Internet, in framing the contribution of technologies and development programs to broader UN goals.

Internet Governance, including Enhanced Cooperation, NETMundial, Proceedings on Internet-related Public Policy Issues:

Establish recognition of key characteristics of the Internet prior to developing policies or systems of governance.

Implement a process that places recognition of the universal form of maximal interoperability already established for the Internet in a position prior to policies endorsed under the rubric of “Internet Universality,” which may otherwise support interoperability in the sense of adherence to common policy without providing adequate channels for addressing impacts on the platform.

Assure that policy contexts and development initiatives are framed in terms that recognize that the modularity and flexibility of the Internet derives from the dynamic that arises among autonomous providers that have competitive access to the physical layer.

-xvx-

On Tue, Nov 26, 2013 at 8:13 PM, Seth Johnson wrote:
> Hello Julie, ITAC, and all:
>
> As promised, here are parts 2 and 3 of my analysis of ITU Resolutions.
> This constitutes a comprehensive view of the implications of the
> failure of the WSIS project and the ITU to recognize the key
> characteristics that make the Internet unique. It is focused on WTDC
> resolutions and is organized in terms of the WTDC Action Plan, but
> also covers PP and WTSA Resolutions.
>
> Part 2: Cybersecurity, ICT Applications and IP-Based Network Issues:
> https://internetdistinction.com/wsisimpacts/2013/11/25/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/
>
> Part 3: the Enabling Environment, Capacity Building and Digital Inclusivity:
> https://internetdistinction.com/wsisimpacts/2013/09/09/enabling-environment-capacity-inclusivity-understanding-impacts-on-the-internet/
>
> This analysis has guided my contributions since at least April,
> allowing me to prioritize the revisions needed and address the
> approach of the US Delegation as the WTDC approached.

<< SNIP >>

Comments Off on To State Dept: Impact Analysis (WSIS Performance Measures) : more...

Followup to: Conformance and Interoperability Inter-Americas Proposal

by on Jan.14, 2014, under Uncategorized

———- Forwarded message ———-
From: Seth Johnson <[protected]>
Date: Tue, Jan 14, 2014 at 5:19 PM
Subject: Followup: Seth’s Edits on C&I
To: “Chip Sharp (chsharp)” <[protected]>, Doreen McGirr <[protected]>, “Elizabeth Bacon ([protected])” <[protected]>, “[protected]” <[protected]>

Attaching my edits on WTDC 47 and the C&I Study Question, as promised.
WTDC 47 – ID Edits
Conformance & Interoperability Study Question – ID Edits

Much easier to use than my explanations, also forwarded below. But
you should be able to appreciate the importance of these edits more
and find answers in these comments originally sent this morning.

Seth

———- Forwarded message ———-
From: Seth Johnson <[protected]>
Date: Tue, Jan 14, 2014 at 9:35 AM
Subject: My Notes — Re: [ITAC-D] WTDC ITAC prep meeting Tuesday
January 14 2-4:30PM
To: Julian Minard <[protected]>
Cc: “[protected]” <[protected]>

A note regarding problems with this study question that I have already noted.

My comments on Conformance and Interoperability from back in April:

https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/

also/more particularly:

On Conformance Assessment, Confidence and the Likelihood of Interoperability:
https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#LikelyInteroperate

On Conformance Assessment and Quality of Service:
https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#QOS

Also note concerns about Identifiers here:
https://internetdistinction.com/wsisimpacts/2013/11/25/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/#Identifiers

Some notes:

Conformance and interoperability testing might become a basis to promote (and enforce) new types of networks (and related technology), without understanding how they might impact the Internet, even replacing the Internet without bothering to recognize the tradeoffs in doing so.

This is particularly the case since this study question is geared toward ITU-T recommendations, which deal with identifiers in numerous ways and which may serve as a basis for technical approaches to policy
enforcement. This is clearly the case given C&I’s connection to the Technical Barriers to Trade treaty.

This version of the C&I question also phrases things in terms of the
“need for confidence,” which doesn’t get to the point that conformance
and interoperability assessment can serve to support confidence by
policy (of some legal standing) as well as by technical compatibility
in an open Internet context. The Internet already supports confidence
in interoperability across networks on the basis of technical
interoperability.

At the above links I address this concern in terms of specialized
functions like QOS that work within networks but not so well (on the
basis of technical interoperability) between networks. They could be
accomplished, of course, by enforcing policy of some legal status.
This point also applies much more generally from the perspective of
the role of identifiers as I point out at the last link above, which
can enforce numerous types of policies. In the context of current
activities in updating copyright (a new proposed “right to make
available”), and initiatives such as the proposal for a broadcasting
treaty, the need to be explicit when we’re talking about technical
interoperability and when we’re talking about new legal policies
becomes important.

Pulling out a couple of passages:

On Conformance Assessment, Confidence and the Likelihood of Interoperability:
https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#LikelyInteroperate

“WTSA 76 asserts that an increase in confidence in ICT equipment
conformance with ITU-T Recommendations will increase the probability
that equipment from different manufacturers will interoperate across
networks from end to end. This is reflected in an observation in
Guadalajara 177 that the conformance assessment regimes that it
invites Member States to adopt can lead to a higher probability that
equipment, services and systems will interoperate.

“Information Society initiatives for conformance and interoperability should recognize that confidence in end-to-end interoperability is already enabled for the Internet based on general purpose packet transmissions. However, for specialized functions that are not as readily supported across the autonomous networks that make up the Internet, these Resolutions appear to be designed to enable providers and manufacturers to certify their compatibility with particular specialized functions that may be supported by particular types of networks. These specialized functions, and the types of networks that support them, should be distinguished from the Internet. While conformance testing would help increase the likelihood of interoperability for networks supporting specialized functions on the basis of increased confidence, it also can support interoperability on the basis of fulfilling policies backed by an intergovernmental authority. As the Information Society contemplates the establishing of an intergovernmental framework for policymaking that may touch on the Internet, it is critical that a basis is established for identifying when policies would impact the Internet deleteriously, by distinguishing networks supporting more specialized functions from the Internet.”

On Conformance Assessment and Quality of Service:
https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#QOS

“Guadalajara 177 includes a particular note that conformance
assessment regimes adopted by Member States will lead to better
quality of service/quality of experience. Quality of service is a
characteristic often sought to be implemented as a specialized
function in networks that treat IP packets specially according to
types or categories. Providing for quality of service in this way
generally can only be readily implemented across routers within a
network governed by a core authority and/or policy, rather than across
the routers of independent internetworking providers. A conformance
and interoperability regime that recognizes the nature of the Internet
should address quality of service not only in these terms, but also in
terms that recognize the role that the actual capacity of networks
plays in quality of service.”

Original email forwarded below.

Seth

———- Forwarded message ———-
From: Seth Johnson <[protected]>
Date: Mon, Apr 29, 2013 at 4:58 PM
Subject: WTDC/Plenipot: 1) Conformance and Interoperability:
Understanding Impacts on the Internet (was: Re: Critical Notes for
WTDC Prep)
To: “[protected]” <[protected]>
Cc: “[protected]” <[protected]>

(Reposting, revised to paste only part of the rather extended text
here in the email. — Seth)

At the link below is an analysis showing where the Conformance and
Interoperability resolutions open up the risk of the Information
Society undermining the Internet. I have pasted the introductory text
below, including general concerns and some key points.

The analysis is designed to contribute to upcoming proceedings such
as the WTPF, the WTDC and High Level WSIS Review in April 2014,
preparing the way to the Plenipotentiary Meeting in October/November
2014, where the necessary actions can be taken.

The full analysis is here:
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/

Please take it into account on the next WTDC Prep, general ITAC, and
Council calls.

You can see two general concerns and a set of key points here:
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#TwoConcerns
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#KeyPoints

I will move on to the other development-related topic areas I
described in the last ITAC call next: the enabling
environment/inclusivity; cybersecurity, ICTs and the Internet; and
measures/results analysis.

There are a number of reports being prepared to be presented at upcoming proceedings that also need to incorporate this concern: ITU Council Reports to the Plenipotentiary Conference on Conformance and Interoperability/Guadalajara Resolution 177, on Bridging the Digital
Divide/Guadalajara Resolution 139, and on Bridging the Standardization
Gap/WTSA Resolution 44; the BDT Report with lessons learned to WTDC re Conformance and Interoperability/WTDC Resolution 47; and the TSB
Report to the Plenipotentiary Conference (and future WTSAs) on
Bridging the Standardization Gap/WTSA Resolution 44. Additional
reports like these will become relevant as I address the other topics.

The commentary gives a picture of how the fact that the Information
Society leaves out a proper treatment of the nature of the Internet
plays out, by analyzing the subset of resolutions that relate to the
topic of Conformance and Interoperability. While the implications are
diverse, the actual revisions called for would be straightforward.
They mostly entail adding onto some references to general terms like
ICTs or telecommunications/ICTs, additional phrases like “including
the Internet” or “including both general purpose internetworking and
networks supporting various specialized functions,” etc. Then one
general resolution might be issued to which others could refer,
“Resolution XX on Internet Key Characteristics and Properties.”

I will need to look at the US position on conformance and
interoperability, the action plan, and more of the plenipotentiary
resolutions. I also need to know how the conformance and
interoperability regime relates to the “interoperability rules” that
the FirstNet Board is apparently going to be issuing. Other items
that will need to be reviewed are listed in my blog analysis here:
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#ReviewCI
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#ReviewDD
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#ReviewSG

See introductory text below or at the blog link.

Seth

Conformance and Interoperability: Understanding Impacts on the Internet

> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/

Contents:

Introduction: Background, General Concerns, Key Points, Relevant Resolutions

Conformance and Interoperability
WTDC Resolution 47, Guadalajara Resolution 177, and WTSA Resolution 76
On Conformance Assessment and Quality of Service
On Conformance Assessment, Confidence and the Likelihood of
Interoperability

Bridging the Digital Divide
Lack of References to the Internet in Relation to the Digital Divide
No Mention of Internet Empowerment of End Users and Providers
On Interoperability, Interconnection and Global Connectivity
On Pro-Competitive Policies and Regulatory Contexts for Expanding Access

Bridging the Standardization Gap
Lack of References to the Internet in Relation to Bridging the
Standardization Gap
Strategic and High Priority Issues in Standardization
Regional Group Terms of Reference and Mobilization Programs

Introduction

Background

The World Summit for the Information Society (WSIS) harbors a
potential of undermining the Internet platform. Its framing documents
and resolutions use general terms such as “telecommunications/ICTs”
and make very little reference to the Internet or its special
characteristics, thus providing no basis for recognizing when the
Internet may be affected by its initiatives.

Among these framing resolutions are those that cover development
initiatives and provide the frame for the next World Telecommunication
Development Conference (WTDC) to be held in Sharm-el-Sheikh, Egypt
from March 31 to April 11, 2014. The WTDC and the High-Level WSIS
Review event taking place in April 2014, along with the
Plenipotentiary meeting in October-November 2014, represent the key
occasions to assure that the appropriate resolutions are issued or
revised to enable the impacts that WSIS development initiatives may
have on the Internet to be readily recognized.

The WTDC Resolutions related to the Conformance and Interoperability
initiative represent one thrust that indicates where revisions are
needed to enable us to recognize when the Information Society’s
development initiatives may affect the Internet. This commentary
identifies the resolutions related to Conformance and Interoperability
and analyzes them in light of this concern.

We begin with two general concerns, followed by a set of key points
covered with more specificity in the commentary.

Two General Concerns:

The first general concern here has to do with the prospect
that conformance and interoperability testing might become a basis for
enabling government or privileged providers to promote new types of
networks by appealing to intergovernmental standards, without
distinguishing them from the Internet or recognizing the tradeoffs
these types of networks bring as compared to the advantages of the
Internet. This could be a problem if these standards work against
connectivity in the form the Internet makes possible, or if their
promotion allows something different to be called Internet.

The other general concern here has to do with applying
conformance and interoperability certification in connection with a
range of public policy issues with which the Information Society is
concerned. If we set up a standardization process under the ITU, and
if it fails to recognize the key characteristics of the Internet while
it is connected to these public policy concerns, we could easily end
up normalizing, in the name of public policy concerns, forms of
telecommunications and related policies that are detrimental to the
advantages of the Internet, without recognizing that impact.

Some Key Points:

The conformance and interoperability framework should reflect the distinction between the general purpose form of connectivity that the Internet Protocol makes possible between independent networks, and connectivity that supports specialized functions that are not as readily supported by general purpose internetworking.

Capacity building in conformance and interoperability testing
should incorporate recognition of the empowerment of independent
operators and end users made possible by the general purpose internet
platform as well as recognizing other types of networks supporting
specialized functions.

Conformance and interoperability should address quality of
service not only as a specialized function in networks that treat IP
packets specially according to types or categories, but also based on
recognition of the role that the actual capacity of networks plays in
quality of service in general purpose internetworking.

The conformance and interoperability initiative should
recognize that confidence in end-to-end interoperability is already
enabled for the Internet based on general purpose packet
transmissions. While the likelihood of interoperability for other
kinds of networks or specialized services will increase on the basis
of confidence derived from conformance assessment, conformance
assessment can also support interoperability through the upholding of
policies backed by an intergovernmental authority, a prospect with
implications that should be understood and addressed.

The resolutions on bridging the digital divide make no mention
of the empowerment of end users and independent providers made
possible by the Internet, or of how those factors drive development

The references to interoperability, interconnection and global
connectivity in the resolutions do not necessarily mean connectivity
in terms of what we understand as the Internet platform, but are used
in ways that could easily support policies imposing connectivity in
other forms, without clearly recognizing their impact on the Internet

General references to pro-competitive policies and regulatory
contexts in relation to expanding access should be adapted to
recognize the general purpose Internet platform made possible by
interoperation among autonomous, competing providers at the physical
layer, and should not characterize the policy and regulatory context
solely in general terms that may support other types of networks
without specifically recognizing the Internet as well.

Recognition of impacts on the Internet should be identified as a high-level objective and priority in standardization, and strategic and high priority issues in standardization should distinctly recognize end user and independent provider empowerment as a result of the Internet as particularly important concerns for developing countries, along with standardization initiatives that may be geared toward other types of networks.

The advice of proponents of increased competition among
independent providers at the physical layer within the US should be
recognized and applied by TSAG as an explicit consideration within its
mandate to coordinate standardization topics.

For the purposes of commenting on the revisions needed in this area,
it’s most useful to group the relevant resolutions under three related
topic headers — Conformance and Interoperability, Bridging the Digital
Divide, and Bridging the Standardization Gap. Click below to see the
relationships among all the resolutions making up the overall
conformance and interoperability thrust.

Click here for Resolutions Related to Conformance and Interoperability:
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#RelatedResolutions

Commentary:

Conformance and Interoperability

WTDC Resolution 47, Guadalajara Resolution 177, and WTSA
Resolution 76 fit under the general heading of conformance and
interoperability.

A conformance and interoperability framework that recognizes the
nature of the Internet needs to draw a clear distinction between
certification of conformance and interoperability in relation to the
general purpose form of connectivity that the Internet Protocol makes
possible between independent networks, and certification for
specialized functions that are not as readily supported by general
purpose internetworking across autonomous routers.

WTDC Resolution 47

WTDC Resolution 47 instructs the Director of the Telecommunications Development Bureau to assist developing countries in building their capacity to perform conformance testing of equipment and systems and to follow up on implementation, including a periodic report to the T-DAG and a report on lessons learned to the WTDC in 2014. It invites Member States and Sector Members to enhance knowledge and effective application of ITU-R and ITU-T Recommendations in developing countries, and to introduce best practices in applying these recommendations. It says nothing about Internet, but does talk about fiber optics, broadband networks, and next-generation networks, inviting Member States to introduce best-practice application of ITU Recommendations in those areas through training and workshops in developing countries.

This resolution needs to reflect the above distinction in the
identification of best practices that it calls for: best practices in
applying recommendations for interoperability by general purpose IP
transmissions among autonomous networks, versus best practices in
applying recommendations related to networks that provide specialized
functions among routers implementing specialized treatment of packets.
The list list of example topics mentioned above should be extended to
include specific mention of Internet networks as well.

On Fri, Jan 10, 2014 at 4:30 PM, Julian Minard <[protected]> wrote:
> We confirm that we will hold an ITAC adhoc on WTDC preps Tuesday January 14,
> BUT IT WILL BE FROM 2-4:30PM. Recall that FCC is hosting this meeting as
> follows:
>
>
>
> Federal Communications Commission
>
> 445 – 12th Street, SW
>
> Room 2-B516
>
> Washington, DC 20554
>
>
>
> We will have a conference bridge and draft agenda on Monday, but it will
> address the draft US contribution and the proposed new question on C&I. The
> draft C&I text is attached herewith; the draft Contribution will be out as
> soon as possible, probably sometime Monday.
>
>
>
> Julian Minard, secretariat

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Followup to: Edits to Broadband Inter-Americas Proposal

by on Jan.14, 2014, under Uncategorized

———- Forwarded message ———-
From: Seth Johnson <[protected]>
Date: Tue, Jan 14, 2014 at 5:19 PM
Subject: Followup: Seth’s Edits on Broadband Study Question
To: Flavia Alves <[protected]>, Doreen McGirr <[protected]>, Roxanne McElvane <[protected]>, “Elizabeth Bacon ([protected])” <[protected]>, “[protected]” <[protected]>

Attaching my edits on the Broadband Study Question, as promised.
Broadband Study Question 2 – ID Edits

Much easier to use than my explanations, also forwarded below. But you should be able to appreciate the importance of these edits more and find answers in these comments originally sent Friday morning.

These edits are relevant to assuring the ITU properly addresses wired facilities, and are critical to assure the US and the ITU do not simply apply the Title I and market failure analysis approach that the FCC has acceded to after the DC Circuit’s previous rulings. After today’s ruling, these revisions are likely even more critical.

So as I said, I strongly urge you to bear these in mind.

The US is moving toward a better approach, having gotten CITEL to add wired infrastructure to the broadband question, and coming to understand how the terms IP-based Networks, NGNs and Internet need to be properly understood — and how the ITU’s processes are leading to misunderstanding on those points. BUT this does not mean the US or CITEL or ITU will address the real policy implications that are important for wired infrastructure in relation to the Internet.

Seth

———- Forwarded message ———-
From: Seth Johnson <[protected]>
Date: Fri, Jan 10, 2014 at 9:55 AM
Subject: Re Deep Dive on IAPs – my broadband edit
To: Roxanne McElvane <[protected]>, Doreen McGirr
<[protected]>, “[protected]” <[protected]>

Please find attached my text inputs for the broadband study question.

What I did was add bits to make sure it articulates how deployment of
broadband in the sense of specialized service network frameworks such
as IMT should coexist with internetworking.

Two paragraphs of explanation. The role of policies related to
land-based infrastructure is critical, and this relates both to the
FCC’s current attempt to defend their Title I approach out of the Open
Internet proceeding, and the Title II approach that reflects the
actual nature of the Communications Act:

Among the considerations that are important in the context of
broadband deployment is the role of the open Internet and policies
that may apply to modalities such as land-based or wired
telecommunications infrastructures. Broadband in this context elicits
important questions including how frameworks for specialized services
such as are enabled for wireless by standards such as IMT should
coexist with the varied offerings of competing providers who rely on
the open Internet and policy frameworks affording competitive access
to shared physical public right-of-way facilities. These providers
rely on general purpose communications protocols to support a flexible
platform for independent innovation that enables them to compete even
as it assures interoperability and global connectivity for their own
services and those of innovating end users.

One of the key questions raised in the United States Federal Communications Commission’s National Broadband Plan and Open Internet Orders was how the Open Internet should coexist with specialized services. As we proceed to an emphasis on broadband access and uptake, questions become important regarding how standards such as IMT, which offers incentives for wireless providers, should relate to open Internet as well as issues of competition, the enabling environment, infrastructure development and empowerment of end users and independent providers in the context of other modalities such as land-based or wired facilities over which policies affording competitive access to the physical layer may apply.

Seth

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To State Dept: Enabling Environment/Capacity Building/Inclusivity

by on Nov.26, 2013, under Uncategorized

(Click here for blog post version of this commentary)

———- Forwarded message ———-
From: Seth Johnson
Date: Tue, Nov 26, 2013 at 8:35 PM
Subject: WTDC/Plenipot: 3) Enabling Environment/Capacity Building/Inclusivity: Understanding Impacts on the Internet (was: Re: Critical Notes for WTDC Prep)
To: “[protected]” , “Zoller, Julie N”

Hi Julie, ITAC, and all:

Continuing from the previous email:

The following covers resolutions related to Programmes 3 and 4, on “the Enabling Environment, Capacity Building and Digital Inclusivity.” The analysis covers WTDC, WTSA and PP resolutions, while focusing on revisions to WTDC resolutions that are needed at the upcoming WTDC.

Part 3: the Enabling Environment, Capacity Building and Digital Inclusivity:
https://internetdistinction.com/wsisimpacts/2013/11/25/enabling-environment-capacity-inclusivity-understanding-impacts-on-the-internet/

Contributions:

I am attaching a number of contributions I have offered since the
US began its approach to the WTDC, both in the form of revisions to
WTDC resolutions and in the form of revisions to other inputs the US
Delegation is providing to the WTDC.

The US Delegation’s contribution on the topic of Conformance and
Interoperability is a matter of great concern. The US is promoting
the certification of ICTs under concepts of conformance and
interoperability that may easily be applied in concert with managed
service frameworks to implement policy, rather than in terms of more
flexible and open forms of interoperability made possible by the
Internet Protocol.

Conformance & Interoperability can be addressed in relation to
Capacity Building, so I attach it to this email. I also attach my
revisions to WTDC 47, the main WTDC resolution on this topic.
Conformance & Interoperability Study Question – ID Edits
WTDC 47 – ID Edits

You will also find my contributed revisions on WTDC 30, WTDC 13, and
WTDC 23 attached to this email.
WTDC 30 – ID Edits
WTDC 13 – ID Edits
WTDC 23 – ID Edits

I describe the purposes of each revision in the reply copy text further below.

Seth

On Tue, Nov 26, 2013 at 8:13 PM, Seth Johnson wrote:
> Hello Julie, ITAC, and all:
>
> As promised, here are parts 2 and 3 of my analysis of ITU Resolutions.
> This constitutes a comprehensive view of the implications of the
> failure of the WSIS project and the ITU to recognize the key
> characteristics that make the Internet unique. It is focused on WTDC
> resolutions and is organized in terms of the WTDC Action Plan, but
> also covers PP and WTSA Resolutions.
>
> Part 2: Cybersecurity, ICT Applications and IP-Based Network Issues:
> internetdistinction.com/wsisimpacts/2013/11/25/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/
>
> Part 3: the Enabling Environment, Capacity Building and Digital Inclusivity:
> https://internetdistinction.com/wsisimpacts/2013/09/09/enabling-environment-capacity-inclusivity-understanding-impacts-on-the-internet/
>
> This analysis has guided my contributions since at least April,
> allowing me to prioritize the revisions needed and address the
> approach of the US Delegation as the WTDC approached.
>
> Only a few WTDC resolutions require revisions, and the most important
> of these are attached to this email and the next.
>
> The important part of the analysis turns out to be the relationship of
> the WTDC resolutions to a set of core PP Resolutions that present the
> key terms IP-based Networks, Internet and Next-generation Networks in
> a confused manner. I have placed commentary on this aspect under
> “IP-based Network Issues” at the above link for Part 2.
>
> Also as promised, you may find my comments on identifiers under that
> heading as well, which relates to several resolutions in Parts 2 and
> 3.
>
> Contributions:
>
> I am attaching a number of contributions I have offered since the
> US began its approach to the WTDC, both in the form of revisions to
> WTDC resolutions and in the form of revisions to other inputs the US
> Delegation is providing to the WTDC, notably those on Broadband and
> Conformance and Interoperability.
>
> The US Delegation’s contributions on the topics of Broadband and
> Conformance and Interoperability are matters of great concern. With
> the broadband contribution, the US is encouraging the implementation
> of ICT applications for the Information Society under the term
> “broadband,” by reference to the ITU’s work on 3G/4G, the managed
> service framework used by wireless providers. With the conformance
> and interoperability resolution, the US is promoting the certification
> of ICTs under concepts of conformance and interoperability that may
> easily be applied in concert with managed service frameworks to
> implement policy, rather than in terms of more flexible and open forms
> of interoperability made possible by the Internet Protocol.
>
> The last thing we want to do is roll out next-generation networks
> all over the world, without recognizing the tradeoffs brought by these
> types of networks as compared to the open Internet platform — and
> then to place that under a conformance and interoperability
> certification regime that fails to recognize the difference.
>
> The US proposal on broadband might be placed under the heading of
> ICT Applications in general, so I attach it to this email. Conformance
> & Interoperability can be addressed in relation to Capacity Building,
> so I attach it to my next email, under Part 3.
>
> Below I describe the purposes of all the revisions to WTDC resolutions
> I am attaching.
>
>
> Seth
>
> Further notes:
>
> The following covers resolutions related to Programme 2 of the
> Hyderabad Action Plan, in the areas of “Cybersecurity, ICT
> Applications and IP-Based Network Issues.” My next email will cover
> Programmes 3 and 4, on “the Enabling Environment, Capacity Building
> and Digital Inclusivity.” The analysis covers WTDC, WTSA and PP
> resolutions, while focusing on revisions to WTDC resolutions that are
> needed at the upcoming WTDC.
>
> You can find the first part of this analysis, on the Conformance and
> Interoperability initiative, here:
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/
> . I determined early on it is not necessary to address the Regulators
> Forum.
>
> Also as promised, you may find my comments on identifiers under
> “IP-based Network Issues” in Part 2 here:
> internetdistinction.com/wsisimpacts/2013/09/09/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/#Identifiers
>
> On the Analysis:
>
> Only a few WTDC Resolutions need revisions in terms of their usage
> of the terms IP-based Networks, Internet, Next-generation Networks,
> etc. (though plenty of PP and WTSA resolutions do).
>
> The key part instead turns out to be the relationship of the WTDC
> resolutions to the core PP Resolutions that have guided the ITU’s
> activities since 2010. I address these core resolutions under the
> “IP-Based Network Issues” heading here:
> https://internetdistinction.com/wsisimpacts/2013/09/09/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/#ITUInternet
> . There I describe the confusion in the key terms IP-based Networks,
> Internet and Next-generation Networks that PP 101, 102 and 133 convey,
> and the fact that PP 137 is much more explicit about the commitment by
> the 2010 Plenipotentiary Conference to deploying Next-generation
> Networks to developing countries.
>
> The remaining parts of the analysis end up being placeholders for
> important notes, listing PP, WTSA and WTDC resolutions in the
> Hyderabad Action Plan Programmes and commenting on them, but noting
> only a few WTDC Resolutions needing edits. Among these notes are
> comments illustrating how the failure to recognize the nature of the
> Internet in the Information Society project impacts both the Internet
> and the goals of the Information Society project itself, as expressed
> in the Geneva Action Lines.
>
> Not yet in place are some comments on the core resolutions on
> bridging the Digital Divide and the Standardization Gap, PP 139 and PP
> 123. I have already presented these points however, in the
> Conformance and Interoperability analysis:
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#DigitalDivide
> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#StandardsGap
>
> Describing the Revisions:
>
> On this email you will find attached my contributed revisions on
> WTDC 45, WTDC 63, and the US’s Broadband proposal.
>
> On the next email you will find my contributed revisions on WTDC
> 23, WTDC 13, WTDC 30, and WTDC 47, and the US’s Conformance and
> Interoperability proposal.
>
> I describe the purposes of each revision below, along with other
> resolutions that need to be revised:
>
> US Proposal for a study question on Broadband:
> Revisions to recognize other modes besides wireless, in
> particular addressing the Internet platform created on the basis of
> competitive access by autonomous, interoperating providers to
> infrastructure installed in the public right of way.
>
> US Proposal for a study question on Conformance and Interoperability +
> WTDC 47 (Conformance and Interoperability):
> Revisions to recognize different types of conformance and
> interoperability relevant to different types of networks, including
> general purpose interoperability among autonomous networks and
> interoperability by the application of a common policy across routers
> subject to a core authority.
>
> WTDC 13 and WTDC 30 (Funding Mechanisms and Partnerships):
> Revisions to recognize that funding mechanisms and partnership
> schemes must be developed to support contexts providing competitive
> access at the physical layer, that funding and partnerships in
> vertically integrated telecommunications contexts may differ markedly
> from those that would serve to support competitive access at the
> physical layer, that public-private partnerships that incorporate
> explicit recognition of the role of public oversight may better
> support competitive access to the physical layer, and that recognizing
> the distinction between the open Internet platform and specialized or
> managed services allows for clear understanding of when practices,
> policies and technologies may affect the Internet and its unique
> characteristics and advantages.
> (WTDC 52 and WTDC 71 may also be revised similarly)
>
> WTDC 23 (International Internet Connectivity):
> Revised to recognize that connectivity to the broader
> international Internet does not mean there is an Internet at the
> national or lower levels, and particularly noting that the commercial
> initiatives to deliver cost savings that the resolution suggests might
> address the resolution’s concern for pricing of international
> connectivity for developing countries are not necessarily compatible
> with the general purpose form of connectivity of the Internet.
>
> WTDC 45, WTDC 63, WTDC 47 (Identifiers):
> Revisions to acknowledge that policy associated with
> identifiers may affect the flexibility and openness of the Internet
> unless recognition of its basic nature is incorporated:
>
> WTDC 45 (Cybersecurity): Cryptographic measures may serve as
> part of an implementation of security-related policy in infrastructure
> in ways that may impact the free flow of information, ideas and
> knowledge and the flexible modes of interaction with and collaborative
> use of information the Internet makes possible.
>
> WTDC 63 (IP Address Allocation and IPv6 Deployment): Revisions
> recommending that the ITU Council support both the open Internet
> platform and specialized services networks in its approval of the BDT
> Director’s guidelines for changes in organizational frameworks and
> policies necessitated by migrating to IPv6.
>
> WTDC 47 (Conformance and Interoperability): Revisions to
> recognize different types of conformance and interoperability may
> suffice to address concerns regarding use of identifiers for
> enforcement of policy that may be implied in references to
> counterfeiting in this resolution
>
> (WTDC 22 may also be revised similarly)
>
> WTDC 64 (Consumer Protection):
> Revisions to assure that consumers are able to recognize the
> difference between Internet connectivity and other types of
> connectivity.
>
> WTDC 37 (Digital Divide):
> Revisions to recognize the role of the Internet’s special
> characteristics in bridging the digital divide, including its
> empowerment of end users and independent providers, and to assure that
> references to pro-competitive policies and regulatory contexts
> recognize the role of competitive access to the physical layer in
> producing the Internet platform among autonomous providers, and in
> incentivizing infrastructure development.
>
> WTDC 15, WTDC 20 (Technology Transfer and Non-discriminatory Access):
> Revisions to assure references to partnerships should
> recognize the inherently public nature of publicly-funded research and
> shared infrastructure, and to assure that the value of
> non-discriminatory access does not substitute for recognition of the
> advantages of competition among providers.
>
>
> The Upshot:
>
> In developing my contributions, I have been able to prioritize and
> focus on parts that needed addressing in terms of the approach of the
> US Delegation. The analysis should now serve others in understanding
> where the defects are in the ITU Resolutions that need to be
> corrected.
>
> However, proceeding in a manner that continues to follow through
> according to the process the ITU has laid out will not correct the
> basic problem in the approach, which simply reaffirms WSIS goals
> without adding the critical insights needed to understand what the
> Internet adds to the equation. It will not only undermine the
> Internet to continue to pursue the Information Society project the way
> it has been, but establishing a form of Internet Governance at the
> international level in this way presents the distinct prospect of
> undermining efforts within the US to place the Internet back on a
> sound foundation by recourse to the law.
>
> The US needs to act at the WTDC to correct the oversight regarding
> the Internet in the WSIS project. The US needs to recognize the
> difference between a truly competitive Internet and the types of
> specially tailored services that are offered within individual
> networks — whether they may be individual wireless providers or
> incumbents in other modes who enjoy a privileged status in relation to
> infrastructure — and in the course of the next year help enable those
> engaged in furthering the Information Society project to receive a
> proper understanding of its status in those terms.
>
>
> Seth
>
> On Fri, May 3, 2013 at 9:55 AM, Minard, Julian E wrote:
>> ———- Forwarded message ———-
>> From: Seth Johnson
>> Date: Mon, Apr 29, 2013 at 4:58 PM
>> Subject: WTDC/Plenipot: 1) Conformance and Interoperability:
>> Understanding Impacts on the Internet (was: Re: Critical Notes for WTDC Prep)
>> To: “[protected]”
>> Cc: “[protected]”
>>
>>
>> At the link below is an analysis showing where the Conformance and Interoperability resolutions open up the risk of the Information Society undermining the Internet. I have pasted the introductory text below, including general concerns and some key points.
>>
>> The analysis is designed to contribute to upcoming proceedings such as the WTPF, the WTDC and High Level WSIS Review in April 2014, preparing the way to the Plenipotentiary Meeting in October/November 2014, where the necessary actions can be taken.
>>
>> The full analysis is here:
>>> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/
>>
>> Please take it into account on the next WTDC Prep, general ITAC, and Council calls.

<< SNIP >>

Comments Off on To State Dept: Enabling Environment/Capacity Building/Inclusivity : more...

To State Dept: Cybersecurity, ICT Apps, IP-Based Networks

by on Nov.26, 2013, under Uncategorized

(Click here for blog post version of this commentary)

———- Forwarded message ———-
From: Seth Johnson
Date: Tue, Nov 26, 2013 at 8:13 PM
Subject: WTDC/Plenipot: 2) Cybersecurity, ICT Apps, IP-Based Networks: Understanding Impacts on the Internet (was: Re: Critical Notes for WTDC Prep)
To: “[protected]” , “Zoller, Julie N”

Hello Julie, ITAC, and all:

As promised, here are parts 2 and 3 of my analysis of ITU Resolutions.
This constitutes a comprehensive view of the implications of the
failure of the WSIS project and the ITU to recognize the key
characteristics that make the Internet unique. It is focused on WTDC
resolutions and is organized in terms of the WTDC Action Plan, but
also covers PP and WTSA Resolutions.

Part 2: Cybersecurity, ICT Applications and IP-Based Network Issues:
https://internetdistinction.com/wsisimpacts/2013/11/25/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/

Part 3: the Enabling Environment, Capacity Building and Digital Inclusivity:
https://internetdistinction.com/wsisimpacts/2013/11/25/enabling-environment-capacity-inclusivity-understanding-impacts-on-the-internet/

This analysis has guided my contributions since at least April,
allowing me to prioritize the revisions needed and address the
approach of the US Delegation as the WTDC approached.

Only a few WTDC resolutions require revisions, and the most important
of these are attached to this email and the next.
Broadband Study Question 2 – ID Edits
WTDC 45 – ID Edits
WTDC 63 – ID Edits

The important part of the analysis turns out to be the relationship of the WTDC resolutions to a set of core PP Resolutions that present the key terms IP-based Networks, Internet and Next-generation Networks in a confused manner. I have placed commentary on this aspect under “IP-based Network Issues” at the above link for Part 2.

Also as promised, you may find my comments on identifiers under that
heading as well, which relates to several resolutions in Parts 2 and
3.

Contributions:

I am attaching a number of contributions I have offered since the
US began its approach to the WTDC, both in the form of revisions to
WTDC resolutions and in the form of revisions to other inputs the US
Delegation is providing to the WTDC, notably those on Broadband and
Conformance and Interoperability.

The US Delegation’s contributions on the topics of Broadband and
Conformance and Interoperability are matters of great concern. With
the broadband contribution, the US is encouraging the implementation
of ICT applications for the Information Society under the term
“broadband,” by reference to the ITU’s work on 3G/4G, the managed
service framework used by wireless providers. With the conformance
and interoperability resolution, the US is promoting the certification
of ICTs under concepts of conformance and interoperability that may
easily be applied in concert with managed service frameworks to
implement policy, rather than in terms of more flexible and open forms
of interoperability made possible by the Internet Protocol.

The last thing we want to do is roll out next-generation networks
all over the world, without recognizing the tradeoffs brought by these
types of networks as compared to the open Internet platform — and
then to place that under a conformance and interoperability
certification regime that fails to recognize the difference.

The US proposal on broadband might be placed under the heading of
ICT Applications in general, so I attach it to this email. Conformance
& Interoperability can be addressed in relation to Capacity Building,
so I attach it to my next email, under Part 3.

Below I describe the purposes of all the revisions to WTDC resolutions
I am attaching.

Seth

Further notes:

The following covers resolutions related to Programme 2 of the
Hyderabad Action Plan, in the areas of “Cybersecurity, ICT
Applications and IP-Based Network Issues.” My next email will cover
Programmes 3 and 4, on “the Enabling Environment, Capacity Building
and Digital Inclusivity.” The analysis covers WTDC, WTSA and PP
resolutions, while focusing on revisions to WTDC resolutions that are
needed at the upcoming WTDC.

You can find the first part of this analysis, on the Conformance and
Interoperability initiative, here:
https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/
. I determined early on it is not necessary to address the Regulators
Forum.

Also as promised, you may find my comments on identifiers under
“IP-based Network Issues” in Part 2 here:
internetdistinction.com/wsisimpacts/2013/09/09/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/#Identifiers

On the Analysis:

Only a few WTDC Resolutions need revisions in terms of their usage
of the terms IP-based Networks, Internet, Next-generation Networks,
etc. (though plenty of PP and WTSA resolutions do).

The key part instead turns out to be the relationship of the WTDC
resolutions to the core PP Resolutions that have guided the ITU’s
activities since 2010. I address these core resolutions under the
“IP-Based Network Issues” heading here:
https://internetdistinction.com/wsisimpacts/2013/09/09/cybersecurity-ict-applications-ip-based-impacts-on-the-internet/#ITUInternet
. There I describe the confusion in the key terms IP-based Networks,
Internet and Next-generation Networks that PP 101, 102 and 133 convey,
and the fact that PP 137 is much more explicit about the commitment by
the 2010 Plenipotentiary Conference to deploying Next-generation
Networks to developing countries.

The remaining parts of the analysis end up being placeholders for
important notes, listing PP, WTSA and WTDC resolutions in the
Hyderabad Action Plan Programmes and commenting on them, but noting
only a few WTDC Resolutions needing edits. Among these notes are
comments illustrating how the failure to recognize the nature of the
Internet in the Information Society project impacts both the Internet
and the goals of the Information Society project itself, as expressed
in the Geneva Action Lines.

Not yet in place are some comments on the core resolutions on
bridging the Digital Divide and the Standardization Gap, PP 139 and PP
123. I have already presented these points however, in the
Conformance and Interoperability analysis:
https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#DigitalDivide
https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/#StandardsGap

Describing the Revisions:

On this email you will find attached my contributed revisions on
WTDC 45, WTDC 63, and the US’s Broadband proposal.

On the next email you will find my contributed revisions on WTDC
23, WTDC 13, WTDC 30, and WTDC 47, and the US’s Conformance and
Interoperability proposal.

I describe the purposes of each revision below, along with other
resolutions that need to be revised:

US Proposal for a study question on Broadband:
Revisions to recognize other modes besides wireless, in
particular addressing the Internet platform created on the basis of
competitive access by autonomous, interoperating providers to
infrastructure installed in the public right of way.

US Proposal for a study question on Conformance and Interoperability +
WTDC 47 (Conformance and Interoperability):
Revisions to recognize different types of conformance and
interoperability relevant to different types of networks, including
general purpose interoperability among autonomous networks and
interoperability by the application of a common policy across routers
subject to a core authority.

WTDC 13 and WTDC 30 (Funding Mechanisms and Partnerships):
Revisions to recognize that funding mechanisms and partnership
schemes must be developed to support contexts providing competitive
access at the physical layer, that funding and partnerships in
vertically integrated telecommunications contexts may differ markedly
from those that would serve to support competitive access at the
physical layer, that public-private partnerships that incorporate
explicit recognition of the role of public oversight may better
support competitive access to the physical layer, and that recognizing
the distinction between the open Internet platform and specialized or
managed services allows for clear understanding of when practices,
policies and technologies may affect the Internet and its unique
characteristics and advantages.
(WTDC 52 and WTDC 71 may also be revised similarly)

WTDC 23 (International Internet Connectivity):
Revised to recognize that connectivity to the broader
international Internet does not mean there is an Internet at the
national or lower levels, and particularly noting that the commercial
initiatives to deliver cost savings that the resolution suggests might
address the resolution’s concern for pricing of international
connectivity for developing countries are not necessarily compatible
with the general purpose form of connectivity of the Internet.

WTDC 45, WTDC 63, WTDC 47 (Identifiers):
Revisions to acknowledge that policy associated with
identifiers may affect the flexibility and openness of the Internet
unless recognition of its basic nature is incorporated:

WTDC 45 (Cybersecurity): Cryptographic measures may serve as
part of an implementation of security-related policy in infrastructure
in ways that may impact the free flow of information, ideas and
knowledge and the flexible modes of interaction with and collaborative
use of information the Internet makes possible.

WTDC 63 (IP Address Allocation and IPv6 Deployment): Revisions
recommending that the ITU Council support both the open Internet
platform and specialized services networks in its approval of the BDT
Director’s guidelines for changes in organizational frameworks and
policies necessitated by migrating to IPv6.

WTDC 47 (Conformance and Interoperability): Revisions to
recognize different types of conformance and interoperability may
suffice to address concerns regarding use of identifiers for
enforcement of policy that may be implied in references to
counterfeiting in this resolution

(WTDC 22 may also be revised similarly)

WTDC 64 (Consumer Protection):
Revisions to assure that consumers are able to recognize the
difference between Internet connectivity and other types of
connectivity.

WTDC 37 (Digital Divide):
Revisions to recognize the role of the Internet’s special
characteristics in bridging the digital divide, including its
empowerment of end users and independent providers, and to assure that
references to pro-competitive policies and regulatory contexts
recognize the role of competitive access to the physical layer in
producing the Internet platform among autonomous providers, and in
incentivizing infrastructure development.

WTDC 15, WTDC 20 (Technology Transfer and Non-discriminatory Access):
Revisions to assure references to partnerships should
recognize the inherently public nature of publicly-funded research and
shared infrastructure, and to assure that the value of
non-discriminatory access does not substitute for recognition of the
advantages of competition among providers.

The Upshot:

In developing my contributions, I have been able to prioritize and
focus on parts that needed addressing in terms of the approach of the
US Delegation. The analysis should now serve others in understanding
where the defects are in the ITU Resolutions that need to be
corrected.

However, proceeding in a manner that continues to follow through
according to the process the ITU has laid out will not correct the
basic problem in the approach, which simply reaffirms WSIS goals
without adding the critical insights needed to understand what the
Internet adds to the equation. It will not only undermine the
Internet to continue to pursue the Information Society project the way
it has been, but establishing a form of Internet Governance at the
international level in this way presents the distinct prospect of
undermining efforts within the US to place the Internet back on a
sound foundation by recourse to the law.

The US needs to act at the WTDC to correct the oversight regarding
the Internet in the WSIS project. The US needs to recognize the
difference between a truly competitive Internet and the types of
specially tailored services that are offered within individual
networks — whether they may be individual wireless providers or
incumbents in other modes who enjoy a privileged status in relation to
infrastructure — and in the course of the next year help enable those
engaged in furthering the Information Society project to receive a
proper understanding of its status in those terms.

Seth

On Fri, May 3, 2013 at 9:55 AM, Minard, Julian E wrote:
> ———- Forwarded message ———-
> From: Seth Johnson
> Date: Mon, Apr 29, 2013 at 4:58 PM
> Subject: WTDC/Plenipot: 1) Conformance and Interoperability:
> Understanding Impacts on the Internet (was: Re: Critical Notes for WTDC Prep)
> To: “[protected]”
> Cc: “[protected]”
>
>
> At the link below is an analysis showing where the Conformance and Interoperability resolutions open up the risk of the Information Society undermining the Internet. I have pasted the introductory text below, including general concerns and some key points.
>
> The analysis is designed to contribute to upcoming proceedings such as the WTPF, the WTDC and High Level WSIS Review in April 2014, preparing the way to the Plenipotentiary Meeting in October/November 2014, where the necessary actions can be taken.
>
> The full analysis is here:
>> https://internetdistinction.com/wsisimpacts/2013/04/28/wsis-impacts-conformance-interoperability/
>
> Please take it into account on the next WTDC Prep, general ITAC, and Council calls.

 

Comments Off on To State Dept: Cybersecurity, ICT Apps, IP-Based Networks : more...

Enabling Environment, Capacity Building, Digital Inclusivity: Understanding Impacts on the Internet

by on Nov.25, 2013, under Uncategorized

by Seth Johnson

Introduction
Enabling Environment
Capacity Building and Digital Inclusivity
International and Regional Initiatives

Introduction

  • None of the materials framing the World Summit for the Information Society (WSIS) provide a basis to recognize when the policies or technological solutions promoted as part of WSIS will affect the Internet. This basic oversight has critical implications as the World Telecommunications Development Conference (WTDC) approaches in early 2014. The implications relate not just to impacts on the Internet, but to impacts on developing countries, and on the objectives of the WSIS itself.
  • The following is an analysis of the 2010 WTDC Resolutions to identify where they need to be adapted to enable recognition of how the WSIS project will impact the Internet. It is organized based on the framework of Study Groups and Programmes for the work of ITU-D outlined in the Hyderabad Action Plan, issued at the 2010 WTDC.
  • We preface our commentary by first providing a description of the distinctions between the terms Internet, IP-based Networks and Next-generation Networks (NGNs), and then noting the important role of a number of 2010 Plenipotentiary Resolutions that are shaping the ITU’s WSIS activities.
  • IP-Based Networks, the Internet and Next-Generation Networks IP-Based Networks, the Internet and Next-Generation Networks

    • Not all IP-based Networks represent Internet connectivity. The Internet Protocol enables interoperability between independent networks by transmitting IP packets in a way that allows the broadest flexibility in communications patterns to be supported. Among networks interoperating in this way, end users can expect that they will be able to connect to end users on other networks in a way that will support the broad diversity of applications that they may discover or create online. Networks throughout the world that have so chosen are part of a global network of networks that can be called “the Internet.”
    • The Internet empowers independent network providers to enter the communications arena and offer their users global connectivity, knowing that they can readily interoperate with other networks; and it empowers end users by providing them this global connectivity via a maximally flexible platform.
    • An individual network that uses the Internet Protocol among its own routers can be called an “IP-based Network,” but not an “Internet” made up of autonomous networks interoperating with each other. “Next-generation networks” generally use IP in a way that supports specialized functions within their own network that aren’t readily supported by general purpose interoperation between independent networks, and are thus in a subcategory of IP-based Networks that is distinct from the Internet.
    • NGNs open up the prospect of certain advantages for their network providers, including allowing them to perform network management and provide for levels of quality of service and product and price differentiation by shaping packet transmissions. However, these types of offerings will supplant the flexible, inherently neutral and general purpose Internet platform if they are not distinguished from it, or if competition in the communications arena is reduced to a few providers offering networks of this type.
  • WTDC Resolutions in the Context of Key 2010 Plenipotentiary Resolutions WTDC Resolutions in the Context of Key 2010 Plenipotentiary Resolutions

    • When we examine the 2010 WTDC Resolutions we find that they only occasionally make reference to the Internet, and generally use the broader and more indefinite terms ICTs or telecommunications/ICTs to reference the technologies under discussion.
    • Instead, a narrow set of resolutions issued at the 2010 Plenipotentiary Conference provides the frame for the ITU’s usage of the key terms Internet, IP-based Networks and NGNs, including PP 101, 102, 133 and 137. The first three of these are the resolutions that provided the frame for the 2013 World Telecommunications/ICT Policy Forum (WTPF) this past May. The last, PP 137, specifically promotes deployment of next-generation networks in developing countries, and was not referenced by the WTPF.
    • These resolutions do not offer a basis for understanding the differences between these terms, encourage a confusion between the terms Internet and IP-based Networks, and in fact emphasize IP-based Networks and NGNs, rather than acknowledging key characteristics of the Internet and addressing tradeoffs that other types of networks entail.
    • Because of their relationship to these core resolutions, the WTDC Resolutions covered by the programmes of the 2010 WTDC’s Hyderabad Action Plan support the same confusion of terms.
    • More broadly, the failure of the ITU’s resolutions and initiatives in support of the WSIS project to articulate these distinctions allows it to proceed in a way that will harm the Internet unless they are corrected.
    • Of particular concern is the specific emphasis on deploying NGNs in developing countries that we find in PP 137. In the confused context created by PP 101, 102 and 133, it becomes critical as we approach the WTDC to address the confusion in the ITU’s treatment of these key terms in its resolutions.

Enabling Environment

  • Various topics: resource mobilization and partnerships, applied research and technology transfer, strengthening cooperation of Member States and Sector Members, effective utilization of mobile communications, non-discriminatory access to modern telecommunications and ICTs, protecting consumers of ICTs, Internet access in developing countries and charging principles for international Internet connection, international alternate calling procedures and allocation of international telecommunications revenues, strategic and financial framework for Hyderabad Action Plan
  • (Click to See Enabling Environment Resolutions) (Click to Hide Enabling Environment Resolutions)

    (Overview of WTDC Resolutions) Overview of WTDC Resolutions

    • WTDC Resolution 30, on the ITU-D sector’s role in implementing the WSIS, is among the core resolutions defining the broad framework of ITU activities since the last WTDC. It is also the WTDC resolution that serves as the basis for the ITU-D sector’s treatment of the enabling environment.
    • WTDC 30 invites the ITU-D sector to facilitate an enabling environment encouraging ITU-D Sector Members to invest in development of telecommunication/ICT infrastructure, assisting Member States and developing countries in finding innovative financial mechanisms and advancing their legal and regulatory frameworks to further infrastructure development and other WSIS goals. It invites ITU-D to pursue statistical work on telecommunication development, using indicators to evaluate progress with a view to bridging the digital divide, and to propose appropriate funding mechanisms for activities in support of the WSIS Action Lines.
    • WTDC 30 encourages ITU-D to develop and implement the ITU-D strategic plan, placing a priority on building infrastructure at national, regional, interregional and global levels, working in cooperation with the other ITU sectors and development partners, with particular regard to the needs of developing countries, and encouraging the principle of non-exclusion from the information society. It calls on Member States to give priority to development of telecommunication/ICT infrastructure, including in rural, remote and underserved areas, and requests the Secretary-General to transmit the resolution to the 2010 plenipotentiary conference for consideration in updating PP Resolution 140.
    • WTDC Resolution 13 concludes that the main players in the field of ICT should act in a way that encourages investments and innovative partnership schemes, that joint ventures should be explored for financing ICT development, that administrations should act to make the ICT sector more attractive for investment, and that a continuous dialogue should continue among telecommunication operators, service providers, and finance sources to prepare projects where BDT can play a catalyst role.
    • WTDC 13 instructs the BDT Director to act as a catalyst in the development of partnerships, by encouraging regional ICT initiatives, organizing training seminars, signing agreements with national, regional and international development partners, and collaborating on initiatives with other relevant international, regional and intergovernmental organizations, to encourage partnerships with high priority given the WSIS outcomes, to coordinate with international bodies involved in ICT development, to encourage international financing agencies, Member States and Sector Members to address the building, reconstruction or upgrading of networks and infrastructure in developing countries as a priority, to promote conditions required for a successful knowledge-based enterprise incubator process and other projects for small, medium and micro enterprises in developing countries, to assist developing countries in responding to global telecommunication restructuring, especially regarding financial issues, and to promote human capacity building in developing countries relating to the ICT sector.
    • WTDC Resolution 71 resolves that appropriate steps should be taken to create an enabling environment at the national, regional, and international levels for encouraging ICT development and investment by Sector Members and ITU-D should act to encourage the private sector to become Sector Members and take part in partnerships with telecommunication/ICT entities in developing countries, that ITU-D should take the interests and requirements of Sector Members into account to enable them to participate effectively in the Hyderabad Action Plan and the WSIS objectives, that a permanent agenda item on private sector issues will be included on the TDAG agenda, and that operational plans should respond to sector Member issues by strengthening communications between BDT, Member States and ITU-D Sector Members. It concludes that in implementing the ITU-D operational plan the BDT Director should consider actions to facilitate public-private partnerships for global, regional and flagship initiatives, to improve regional cooperation through regional meetings on issues of common interest, in particular for Sector Members, and to promote an enabling environment for investment and ICT development.
    • WTDC 71 instructs the BDT Director to facilitate communications between Member States and Sector Members on issues which contribute to an enabling environment for investment, particularly in developing countries, to continue to organize the Global Industry Leaders Forum, possibly back-to-back with the Global Symposium for Regulators (GSR), to foster exchange of information between Member States, Sector Members and regulators, and to further deploy and strengthen the ITU-D Sector Members’ portal to exchange and disseminate information about Sector Members.
    • WTDC Resolution 22 encourages all administrations and international telecommunication operators to give effect to ITU’s recommendations in order to promote an accounting regime that would help limit the negative effects of alternative calling procedures and calling party number delivery on developing countries and limit the negative effects of misappropriation and misuse of international telecommunication numbering resources. It requests ITU-D to collaborate with ITU-T on the issue of refile to eliminate duplication of effort and achieve an outcome in line with PP Resolution 21, to play an effective role in implementation of PP Resolution 22 with respect to apportionment of revenues in favor of developing countries where cost-oriented accounting rates reflect asymmetric costs for terminating international traffic, requests administrations and international operators that permit alternative calling procedures but do not provide calling party number delivery in accordance with their national regulations to respect decisions of other administrations that do not permit such services and that request calling party number delivery for security and economic reasons, and urges cooperation in implementing WTSA Resolution 20 with respect to telecommunication origin identification and misuse of numbering, addressing and naming resources.
    • WTDC Resolution 23 addresses provisions of § 50 of the Tunis Agenda recognizing the concerns among developing countries that charges for international Internet connectivity should be better balanced to enhance access, and calling for the development of strategies to increase affordable global connectivity. It notes that Internet service provider operators in developing countries have expressed concern that the commercial agreements between parties providing international Internet connectivity have not achieved the required balance in regard to charges between developed and developing countries.
    • WTDC 23 asserts that continuing technical and economic development require ongoing studies in this area, while commercial initiatives by service providers have the potential to deliver cost savings for Internet access. It urges service providers to negotiate commercial arrangements for direct international Internet connectivity based on factors such as geographical coverage, number of routes and the cost of international transmission, instructs the BDT Director to conduct activities to promote information sharing among regulators on the relation between charging arrangements for international Internet connectivity and the affordability of international Internet infrastructure development in developing countries, and reaffirms the quest to ensure everyone can benefit from the opportunities that ICTs offer, recalling that governments, private sector, civil society, the UN and other international organizations can work together to pursue improved access to ICT infrastructure and technologies and other WSIS goals. It invites Member States to create policy conditions for competition in the international Internet backbone network access market and in the domestic Internet access service market, as means to lower the cost of Internet access for users and service providers, and urges regulators to promote competition among all service providers in the context of national policy, with a focus on reducing connectivity costs.
    • WTDC Resolution 64 instructs the BDT Director to support the raising of awareness with decisionmakers regarding ICTs and with regulators regarding the importance of keeping users/consumers informed about basic characteristics, quality, security and rates of different services offered by operators, as well as the creation of other protection mechanisms supporting consumers’ rights, to collaborate with Member States in identifying critical areas for policies or regulatory frameworks for protecting users and consumers, to continue coordination with ITU-T on topics such as service quality, perceived quality and security, to strengthen relations with other international organizations involved in consumer protection, and to invite regions to create end user/consumer associations. It urges Member States to create and promote policies providing end users/consumers wih information on the characteristics of telecommunication services offered by different providers, and invites ITU-D Sector Members to contribute international best practices related to the implementation of consumer-protection policies, taking into consideration ITU guidelines and recommendations.
    • WTDC Resolution 72 cites a need to facilitate development and utilization of mobile communications for many practical tasks, including with a view to ensuring more equal access to telecommunication/ICT services for all, observes that new mobile technologies may help bridge the digital divide between both developing and developed countries and urban and remote or rural regions, notes that performing practical tasks with mobile and broadband technologies opens up new prospects including affording access to new technologies to developing countries, and that many countries are interested in mobile services in areas such as e-health, e-government, money transfer and transactions, near-field communications, banking and mobile marketing. Affirming the role of ITU-D in coordinating rational use of resources in efforts to establish more widespread deployment of mobile telecommunication/ICT services in different countries of the world, WTDC 72 resolves that the BDT should play a key role in implementation of regional and national projects for mobile telecommunication systems to provide services such as the above, in cooperation with interested ITU Member States and the private sector, and should develop a programme to develop proposals and recommendations for mobile telecommunication services at regional and national levels.

    (Usage of Key Terms) Usage of Key Terms

    • The Enabling Environment resolutions are phrased in terms of telecommunications and ICTs in general, with only a few references to the Internet or IP-based networks.
    • WTDC 23 references the Internet in describing concerns among developing countries that charges for international Internet connectivity should be better balanced, as presented in § 50 of the Tunis Agenda, in citing WTSA 69′s call for Member States to refrain from discriminatory actions that could impede access to public Internet sites by other Member States, and in noting that ITU-T Recommendation D.50 recommends international Internet connectivity be based on negotiating bilateral commercial arrangements that incorporate consideration of factors such as traffic flow, geographical coverage, or number of routes, whereas international Internet connections remain subject to commercial agreements that do not achieve balance in charges between developing and developed countries; that increases in costs of international Internet connectivity will result in delays in access to the Internet; and that service providers might deliver cost savings for Internet access through commercial initiatives such as those that might result in more traffic being routed locally. WTDC 23 also speaks of the Internet in its invitation for Member States to support ITU-T’s monitoring of the application of ITU-T D.50 and to create policy conditions for effective competition both in the international Internet backbone market and in domestic Internet access, in its urging service providers to negotiate international Internet connection according to the ITU-T D.50 recommendation, and in its instruction to the BDT Director to promote information sharing among regulators on the relation between charging arrangements for international Internet connectivity and the affordability of international Internet infrastructure development in developing countries.
    • WTDC 23 refers to the Internet and IP-based services as distinct terms in one reference to “the rapid growth of the internet and IP-based international services.”
    • WTDC 22, WTSA 20 and PP 21, on alternative calling procedures on international telecommunication networks, identification of origin and apportionment of revenues in international telecommunication services, all reference other terms besides Internet. WTDC 22 cites PP 21′s call for ITU-T study groups to study alternative calling procedures and identification of origin in relation to next generation networks, and WTSA 20 notes “the ongoing deployment of next-generation networks (NGN), future networks (FN) and IP-based networks.” WTSA 20 makes a single mention of the term Internet in association with the concept of convergence, with a reference to “the global growth of mobile and Internet subscribers and the convergence of telecommunication services.”
    • WTSA 69, on non-discrimination in access to and use of Internet resources, notes that ITU-T is dealing with technical and policy issues related to IP-based networks, including the Internet and next-generation networks, and references the Internet in citations of the UN Human Rights Council resolution on the promotion, protection and enjoyment of human rights on the Internet, § 48 of the WSIS Declaration of Principles, on the governance of the Internet as a core issue of the information society agenda, and Opinion 1 of the Fourth WTPF and the 2009 Lisbon Consensus on Internet-related public policy matters. It notes the global and open nature of the Internet as a driving force in accelerating progress towards development, that discrimination in accessing the Internet could greatly affect the developing countries, and the fact that the 2010 Plenipotentiary Conference entrusted ITU-T with a number of Internet-related activities, including those under PP 102, on ITU’s role in international Internet-related public policy issues and management of Internet resources.

    (Comments on Resolutions) Comments on Resolutions

    • International Internet Connectivity
    • Whatever the outcome of efforts referred to in WTDC 23 to increase the affordability of international Internet connectivity for developing countries, it is important to incorporate recognition of the key characteristics of the Internet in connection with this resolution because while these bilateral arrangements may provide for connectivity that constitutes Internet access at the international level, this does not mean the term “international Internet connectivity” designates Internet connectivity at more local scopes. The commercial initiatives WTDC 23 suggests service providers might implement to gain cost savings could well include practices that are viable within intranets but not in an Internet context.
    • Funding Mechanisms, Partnerships
    • WTDC 30 and 13 both relate to the role of private investment in development of infrastructure and services. Both relate to PP 102 in the core framework, which among other things also addresses private investment. WTDC 30 is more focused on funding methods and “innovative funding mechanisms,” while WTDC 13 is more focused on encouraging “innovative partnership schemes” and joint ventures.
    • The language in these resolutions should be revised to explicitly acknowledge the problem of developing funding mechanisms and partnership schemes that support and work within contexts providing competitive access at the physical layer, rather than using generalized language amenable to being interpreted in accord with vertically integrated telecommunications contexts such as we find in the United States.
    • If the vertically integrated telecommunications model is to be supported, the language should also incorporate recognition of a competitive environment of numerous providers interoperating at the physical layer, recognizing that this type of context empowers end users and independent providers and creates an open, flexible platform that fosters innovation. The latter type of context has profound advantages that should be compared against the advantages of intranet services, whether by a few providers or numerous.
    • There is no Internet within a vertically integrated telecommunications environment that has joined the physical layer with the higher layers within which applications are deployed, since there are no autonomous networks interoperating. Acknowledging this distinction is particularly important to developing countries that may want to perform this comparison or seek support for developing either type of context in the near or long term.
    • Indeed, if the ITU places an emphasis on NGNs in its development programs in support of the WSIS, as we see expressed in PP 137, it’s imperative to be able to recognize the difference between these types of offerings, with the specialized types of services they support, and the general purpose platform the Internet makes possible between independent network providers.
    • The economics of a vertically integrated market relates to control and efficiency for particular producers and the particular products supported by their production and supply chains. An analysis in those terms does not address the impact that vertical integration has on the direct social advantages of the flexible, general purpose platform produced among providers internetworking as they compete at the physical layer and the diversity of products and services made possible by this platform.
    • In the framing of policy, telecommunications contexts that support vertical integration have the characteristic of treating physical layer infrastructure to a great degree as private, conditioning regulation on a prior determination of anti-competitive behaviors or effects. The use of public-private partnerships in this type of context can reinforce this approach to regulating the physical layer, helping condition involvement of the public sector on greater private privileges.
    • However, other legal traditions may not apply analysis of anti-competitive effects as a precondition to regulate the public right of way: this approach proceeds from a premise that regulation of a shared public resource is given by its nature. This approach more readily applies conditions and obligations on entities that gain access to install infrastructure across the public right of way, treating the infrastructure as inherently subject to public requirements. It will benefit the flexibility of the framework that ITU applies in its activities in support of WSIS, to incorporate recognition that public-private partnerships might also be structured in a way more consistent with this type of legal tradition.
    • All of the areas WTDC 30 invites ITU-D to conduct activities in support of — fostering enabling environments, innovative financial mechanisms, and legal and regulatory frameworks, developing the ITU-D Strategic Plan, measurable indicators for statistical analysis of progress, and appropriate funding mechanisms — should be articulated carefully to incorporate recognition and support for environments that provide for competitive access to the physical layer.
    • (Resolution 71)
    • Technology Transfer, Non-Discrimination
    • Many of the references to the Internet in WTSA 69 may benefit from a review with an eye for adding provisions to recognize the nature, key characteristics of and advantages of the Internet.
    • Consumer Protection
    • distinguish Internet, specialized services
    • Identifiers
    • policy impact on flexibility on Internet

    (Impacts) Impacts

    • The pursuit of enabling environments for infrastructure development without recognizing the nature of the Internet will have impacts on the Internet and on WSIS goals.
    • Impacts on the Internet:
    • Depending on the policy and regulatory context, the establishing of enabling environments can affect the ability for independent, autonomous networks to readily interoperate by means of the Internet protocols unless the nature of the Internet is acknowledged clearly.
    • A communications environment constituted of competing providers interoperating in a general purpose manner supports greater freedom to innovate and diversity of applications than the type of environment that exists within a managed service framework subject to a common policy administered by a core authority, whether public or private. And if governance were established in a manner that mandates or depends on such a framework, this policy frame would have direct effect on the Internet’s flexibility and openness for both independent networks and end users.
    • In addition, if we fail to recognize the basis of the Internet platform in competition among autonomous, interoperating providers, we will easily accommodate a vertically integrated telecommunications environment that treats infrastructure installed across the public right of way as a more wholly private asset supplying the higher level services of the incumbents, with numerous implications for fundamental rights and innovation, as well as for competition. Indeed, without this recognition, the international framework for Internet governance that the WSIS is designed in part to bring about could take overlooking the nature of the public right of way in the telecommunications regulatory context to a whole new level.
    • Impacts on WSIS Goals:
    • Confidence and Security in the Enabling Environment: A failure to recognize the characteristics of the Internet in the Information Society’s initiatives will affect the goals of building confidence and security in relation to the enabling environment for development, with implications for many of the purposes of Action Line C6. The implications can be understood not only in relation to development, but also in relation to innovation and fundamental liberties.
    • Some types of incentives for infrastructure development may be built on capacities made possible in managed service frameworks (such as discrete tiers of service allowing differentiated price schemes), or that may be enabled by a regulatory environment that allows incumbents to treat the infrastructure they install at the physical layer as a supply to a vertically integrated production process. These approaches to encouraging development are distinct in nature from the approach associated with the Internet platform, where innovation by independent providers and end users drives demand for infrastructure. In addition, competitive access at the physical layer supports the openness and flexibility of the Internet platform, since competing providers must transmit packets in a general purpose manner in order to interoperate and provide global connectivity to their users. As a result, our confidence that the platform will support innovation as well as freedoms of press, expression, and association, can be affected deleteriously if a vertically integrated telecommunications market limits access to the physical layer by the effective control of a private party.
    • Security in relation to the enabling environment may be conceived in terms of security of transactions and e-commerce, or it may be conceived in terms of the security of fundamental liberties. The effect of enforcement of e-commerce and policies on the Internet and what counts as security will depend on whether the dynamic, interactive and collaborative possibilities enabled by the Internet are borne in mind.
    • The implications for security in terms of fundamental liberties are like those described for cybersecurity. If the telecommunications environment is vertically integrated, the implication is that infrastructure will be treated in terms of the private interest of those who install it across the public right of way, and as a result fundamental liberties related to the communications of citizens, understood as limits on the government, might be characterized as inapplicable. And public oversight of the public right of way in the form of regulation of infrastructure might be characterized in that framework as a violation of the rights of those who installed the infrastructure, rather than recognizing that oversight as a natural reflection of the nature of the public right of way as a shared resource that must be governed to foster competition and oversee access. In the latter context the government is barred from abridging the fundamental liberties of the general public, not of those who install infrastructure, and incumbents naturally may incur obligations, including limitations that reflect those that apply to the government, in return for privileged access. So security in the sense of reliable support for fundamental liberties may be affected when the foundation of the Internet in competitive access at the physical layer is overlooked and infrastructure is treated as private assets vertically integrated with the products and services of incumbent providers.
    • Action Line C6: A failure to address the nature of the Internet will have impacts on the goals of Geneva Action Line C6 including understandings of what constitutes a pro-competitive policy, legal and regulatory context, and what appropriate incentives are; how we define internet governance, public policy issues, and roles and responsibilities of various parties; how various technology policies relate to national strategies for public administration; how we protect consumers in their access to the Internet; the nature of open, interoperable, non-discriminatory standards; the nature of the secure storage framework; and how we understand online privacy.
  • Capacity Building and Digital Inclusivity

    • Group on capacity-building initiatives; ITU centres of excellence; telecommunication infrastructure and ICTs for socio-economic and cultural development
    • (Click to See Capacity Building Resolutions) (Click to Hide Capacity Building Resolutions)

    • Telecommunications/ICTs in rural, isolated and poorly served areas and indigenous communities; gender equality through ICTs; access to ICTs for persons with disabilities, including age-related disabilities; development of the Youth Forum in BDT
    • (Click to See Digital Inclusivity Resolutions) (Click to Hide Digital Inclusivity Resolutions)

      (Overview of WTDC Resolutions) Overview of WTDC Resolutions

      • Capacity Building
      • WTDC Resolution 73 concludes that ITU Centers of Excellence should be continued, strengthened according to priorities determined in consultation with the ITU membership, and instructs the BDT Director to assist and facilitate them and carry out a comprehensive analysis of their activities in organizational, financial and programme terms. It references PP Resolutions 123 and 139 on bridging the standardization gap and the digital divide, and WTDC Resolutions 15, 37 and 47, on technology transfer and applied research, bridging the digital divide, and the conformance and interoperability program, which we have already examined. It also references WTDC Resolution 40, on human resource development.
      • WTDC 40 instructs the BDT Director to establish a group on capacity-building initiatives to contribute to ITU-D capacity-building initiatives in an integrated manner in cooperation with all programmes and the two ITU-D study groups. This group is to represent each of the six regions with two experts and work with BDT staff to identify global trends in ICTs and capacity building, regional needs and priorities, including evaluating progress and making proposals to harmonize activities, design and implement an integrated framework for the ITU Academy, advise on development of ICT curricula, accreditation and certification, standards for quality assurance for ITU Academy partnership courses, and initiatives, partnerships and academic alliances that further ITU Academy objectives, as well as prepare a report for the annual TDAG meeting covering achievements and proposals for future action.
      • Digital Inclusivity
      • WTDC Resolution 11 observes that all WTDCs have affirmed a need to provide access to basic telecommunication/ICT services for everyone, particularly for developing countries, in rural and isolated areas and in indigenous communities. It notes that a clear correlation has been shown between availability of universal telecommunication/ICT services and economic and social development and that in many areas there is evidence of the profitability of telecommunication/ICT services in rural, isolated and poorly served areas and in indigenous communities, that several state-of-the-art technologies may help in the provision of telecommunication/ICT services in this area, that access to these services in this circmstance requires judicious choice of technologies, and that ITU-D Study Group 2 has developed useful references in this area under Question 10.
      • WTDC 11 resolves to support the conclusions of Study Group 2 regarding rural telecommunication programmes, including regulatory framework, financial resources and commercial approach and universal access, instructs the group to continue their studies and the BDT Director to promote appropriate means to facilitate development of telecommunication/ICT services in these areas.
      • WTDC Resolution 68 resolves to affirm a special initiative for indigenous peoples in Programme 4 and in all BDT programmes, to support digital inclusion of indigenous peoples in forums and training on ICT for social and economic development, to support human resource training in design and management of public policies for ICT development in remote and isolated areas, for groups with specific needs and for indigenous peoples, and to support capacity training for indigenous peoples in development and maintenance of ICTs, incorporating best practices and knowledge of indigenous peoples and participation by indigenous experts where appropriate. It instructs the BDT Director to reinforce the initiative through collaboration with Member States and other relevant regional and international organizations.
      • WTDC Resolution 55 resolves that the Working Group on Gender Issues will work with ITU-D to promote gender equality in ICTs through recommending policies and programmes at the international, regional and national levels, and endorses an action plan to: develop initiatives in developing countries that are either specifically targeted to women or gender sensitive, incorporate a gender perspective in Study Group questions, support gender-sensitive cross-country data analyses, assess gender implications in evaluating projects, provide capacity training to BDT staff in gender mainstreaming, mobilize resources for gender-sensitive projects or projects specifically targeted to women, and develop partnerships with other UN agencies to promote the use of ICTs in projects aimed at women. It instructs the BDT Director to allocate necessary resources to this action plan and provide assistance to members in relation to it, and invites the Plenipotentiary Conference to provide financial and human resources to support the continued integration of a gender perspective in ITU development activities and bring the resolution to the attention of the UN Secretary-General for increased coordination and cooperation in promoting gender equality.
      • WTDC Resolution 58 invites Member States to envisage establishing a programme that considers priorities for ICT accessibility for persons with disabilities, with a view to progressive implementation, to pursue research and development in ICT-accessible equipment, services and software, to collect data on ICT accessibility with an eye toward creating e-accessibility indicators as a contribution to policy-making, to encourage participation of persons with disabilities in ICT policy-making and areas where ICTs have an impact, to establish ongoing collaboration between developed and developing countries to exchange information, technology and best practices regarding ICT accessibility, and to mainstream ICT accessibility for persons with disabilities. It also urges them to ratify the Convention on the Rights of Persons with Disabilities, develop national laws and policies for ICT accessibility, and consider introducing ICT-accessible services and tax exemptions for assistive devices.
      • WTDC 58 instructs the BDT Director to ensure that the work of ITU-D as well as the provision of ICT equipment, services and software take into account the needs of persons with disabilities, including age-related disabilities, to document and share information on best practices in telecommunication/ICT accessibility, to provide capacity building and develop tools and guidelines for Member States on mainstreaming ICT accessibility issues in national policies and regulations, to collaborate with the other ITU sectors on accessibility-related activities and with relevant UN entities and disability organizations in all regions to generate awareness, and to designate a focal point for ICT accessibility and strengthen the special initiative on persons with disabilities, as well as consider holding forums for policy-makers, telecommunication regulators and Sector Members on accessibility issues, promoting reports and materials on ICT accessibility, and developing an internship program for persons with disabilities with expertise in ICTs. It invites ITU-D Sector Members to adopt a universal design principle in developing ICT equipment, to promote research and development on ICT-accessible technology with due regard for affordability, encouraging participation by persons with disabilities, and to take a self-regulation approach to accessibility of ICT equipment in collaboration with Member States.

      (Usage of Key Terms) Usage of Key Terms

      • Capacity Building
      • WTDC 40 and 73 and PP 31 all speak in terms of ICTs and telecommunication/ICTs, without reference to the Internet, IP-based networks, or next generation networks, other than WTDC 40’s references to the BDT’s Internet training centers initiative.
      • We have addressed the problem of recognizing the Internet in the WSIS project as it relates to capacity building to a great degree already in our treatment of the conformance and interoperability thrust, including our comments there on the resolutions for bridging the digital divide and the standardization gap. We have also commented on the technology transfer resolutions in our treatment of the resolutions for ICT Applications, e-government, and mobile communications.
      • Digital Inclusivity
      • All the digital inclusivity resolutions speak with reference to the general terms ICTs or telecommunication/ICTs. Only the resolutions on access for persons with disabilities use the term internet, and none refer to IP-based networks or next generation networks.
      • The resolutions on access for persons with disabilities, WTDC 58 and 70, WTSA 70, and PP 175, mention the Internet with references to the Internet Governance Forum, to the Internet and digital TV as two technologies presenting special difficulties for persons with disabilities, to maximizing the benefits of online information through the Internet for all sectors of the global community, to promoting access for persons with disabilities to new ICTs and systems including the Internet, and to the provision of the UN Convention on the Rights of Persons with Disabilities calling for signatory States to act to provide access to ICT, emergency services and Internet services to persons with disabilities on an equal basis with others.
      • (Comments on Resolutions) Comments on Resolutions

        • We have addressed the problem of recognizing the Internet in the WSIS project as it relates to capacity building to a great degree already in our treatment of the conformance and interoperability thrust, including our comments there on the resolutions for bridging the digital divide and the standardization gap.
        • Capacity building clearly needs to incorporate recognition of the nature and advantages of the Internet as distinct from other types of networks, as capacity building initiatives represent a key means for instituting and expanding understanding of the conceptual framework of the Information Society, with implications for how its initiatives and the technologies it promotes serve its goals. Here we elaborate this concern with reference to the motives of WSIS.
        • Digital inclusivity for various groups and communities is benefited profoundly by the nature of the Internet, and these constituencies may lose these advantages if the Information Society proceeds in a manner that affects the Internet’s character without recognizing this impact.

        (Impacts) Impacts

        • Impacts on WSIS Goals
        • The empowerment of end users made possible by the open platform produced by the Internet when it is constituted of diverse, autonomous providers that can readily enter the field of communications at the physical layer, is of a different character from that which managed service frameworks make possible within individual networks, and from that which may be expected in vertically integrated telecommunications regimes. The implications of failing to recognize the empowerment of end users and independent providers that Internet connectivity is designed to make possible, include effects on self-determination, autonomy and independence of communities such as the young people, women and girls, nomadic and indigenous peoples, and communities residing in rural and underserved regions which Action Line C4 references, or the older population, persons with disabilities, children and other disadvantaged groups referenced by Action Line C2.
        • If the difference is not recognized between what an open platform among independent and autonomous providers makes possible, and the unique possibilities for specialized services that individual providers may make possible within their own networks, then the outcome of the Information Society project may easily be to supplant the type of empowerment and digital inclusion that the Internet is designed to bring, replacing it with narrower options that other types of connectivity may entail, with pervasive effects on all the provisions of Action Lines C2, C3, C4, C8 and C11.
        • It would affect the content of the programmes for capacity building, lifelong learning and universal education that Action Line C4 advocates pursuing, including the substance of courses in public administration, the nature of the qualifications of ICT experts, and the role to be played by the libraries, multipurpose community centers, local ICT training centers, and public access points advocated by C4. It would also affect the nature of the pilot networking projects among education, training and research institutions between developing and developed countries, and in fact the very kinds of ICTs that would be recognized as appropriate for integration into education and training, also referenced by Action Line C4.
        • The failure to recognize the distinction can also easily affect the types of national policies for promoting investment in infrastructure and new services, and indeed the nature of the national, regional and international “broadband network” infrastructure, that Action Line C2 advocates pursuing as the “essential foundation” for digital inclusion in the Information Society. This would include the incentivizing of infrastructure investment by treating privileged access to the physical layer as a “supply” vertically integrated with the production processes of higher layer services offered by telecommunications incumbents, or defining new policy frameworks in association with the term “broadband.”
        • It would affect the type of connectivity that would be established for schools, universities, health institutions, libraries, post offices, community centers, museums, and other public institutions according to the call in Action Line C2. It would affect the type of universal access policies and strategies and connectivity indicators that would be identified, and shape the parameters for the technical, regulatory and operational studies in public/private partnerships, systems standards, access to orbital resources, satellite for underserved areas, and frequency harmonization, also advocated by C2. It would affect the types of educational, administrative and legislative measures to serve various disadvantaged groups, and indeed the type of end user equipment, that Action Line C2 encourages promoting.
        • The commercially negotiated transit and interconnection arrangements for global connectivity that Action Line C2 urges pursuing could supplant the advantages of the Internet if its characteristics are not delineated, and the advocating of “objective, transparent and non-discriminatory parameters” for connectivity in C2 could serve to replace recognition of how the basis of the Internet in competitive interoperation among independent providers can serve inclusivity by assuring the openness of the platform is maintained.
        • The failure to recognize the distinction between Internet and other types of networks would affect access to information, cultural identity and diversity, and international cooperation as envisioned by Action Lines C3, C8 and C11. It would affect the types of information made available as urged by Action Line C3, what would count as public domain, the types of use and sharing of information that would be supported whether technically or legally, what types of exclusive rights would apply in the context of the capabilities of the technology, what roles would be played by multi-purpose community public access points, and how connectivity would work as the “fundamental working tool” for local governance that C3 recommends recognizing.
        • It would affect the extent of empowerment that would apply toward the calls in Action Line C8 to promote the production of cultural works and local cultural industries, local community media, local heritage and biological diversity, support of rural and isolated communities, and local development for disadvantaged, vulnerable, non-literate and disabled communities.
        • It would affect the ways in which the enhancing of the capacity for indigenous to develop works in their language advocated by C8, and what kinds of best practices would be recognized for promoting cultural and linguistic diversity. And the nature of the policy and regulatory contexts associated with network infrastructure would interact with the nature of the public/private partnerships to promote cultural diversity and local and national works, and to recognize “ICT-based works” that C8 encourages, to embed these purposes in new formulations of the nature of the telecommunications regime and of the role of the government and private parties in that regime, in ways that could fundamentally alter the role of diverse, local communities.
        • Effects that a failure to recognize the distinction between Internet and other types of connectivity would have on international cooperation as envisaged by Action Line C11 would relate to the question of what kind of connectivity would be made available in service of C11’s calls for providing means for universal access and bridging of the digital divide, and for international cooperation on infrastructure development projects. Action Line C11 references a larger scope than the WSIS project’s frame, calling for the acceleration of public-private partnerships in the context of the UN’s Global Compact and Millennium Declaration. In policy and regulatory contexts that do not promote competitive access to the physical layer, as we find in contexts that maintain vertically integrated telecommunications environments, the promotion of public-private partnerships can tend to entrench that pattern if they do not build in special recognition of the role of public oversight of shared telecommunications infrastructure.

      International and Regional Resolutions


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    Preparing for the WTPF: Regarding Opinions for The Secretary-General’s Draft Document

    by on Jan.07, 2013, under Uncategorized

    by Seth Johnson

    The US Delegation and various stakeholders are working with an Informal Experts Group on the “Secretary-General’s Report to the World Telecommunications Policy Forum,” which will be the basis for discussions at the WTPF in May.  Below is my contribution, posted last Friday evening, edited minimally but adding helpful internal hyperlinks and the following Table of Contents.

    Preface
    I. Addressing Opinions and Parts of the Secretary-General’s Third Draft of Its Report to the World Telecommunications Policy Forum

    A. Governance

      1. Characterizing the Unique Nature of International Governance
      2. Standards-making and National and International Governmental Participation
      3. Addressing “Enhanced Cooperation” Given This Characterization of the Nature of International Governance
      4. Key Characteristics of the Internet Relevant to Governance and Development
      5. Formulating International Governance of the Internet

    B. Development

      1. Real Internet, ICTs and Development
      2. Need to Help CWG-Internet Define “ICTs”
      3. General Usage of the Term “ICT” In Relation to the WSIS and the CSTD’s Frame for Development

    C. National Telecommunications Incumbents

    II. Fixing the Frame: Plenipotentiary Acts

    A. Key Considerations for Preparing the Secretary-General’s Report for the WTPF
    B. Guadalajara Resolutions That Would Need Review and Revision in Order to Address International Governance of the Internet Appropriately

    Preface

    First, where we’re at and what I’m going to cover below.  Right now we’re preparing for the World Telecommunications Policy Forum in May, developing opinions to go with the revisions that will produce the Fourth Draft of the Secretary General’s Report, to be posted for review on January 10th.  Just prior to that, from January 7 to 9, will be an inter-sessional meeting of the Commission on Science and Technology for Development (CSTD) that will help set context, addressing urbanization and sustainability, broadband for an inclusive digital society, and WSIS followup.  This past May the CSTD also held a meeting on enhanced cooperation and public policy issues related to the Internet, and issued two resolutions, one on science and technology for development, and another on progress in relation to the World Summit on the Information Society (WSIS).  The Informal Experts Group (IEG) will then address the Fourth Draft beginning January 14th.

    What I will do below is analyze the opinions under consideration, and offer one or two that would also be helpful, at least sketching their basic ideas.  As I do so, I will also offer comments on the Third Draft of the Secretary General’s Report for the WTPF.  Since the deadline for submissions for that draft has passed, I offer that part of these comments for consideration once the Fourth Draft is ready.  I will focus on two areas of consideration that are relevant both now and generally, and that also have import in relation to the important questions many of us may have regarding the US’s position in relation to the overall processes underway, given the outcome of the World Conference on International Telecommunications (WCIT):

    • Understanding standards-making while considering the question of Internet governance in light of the unique character of transnational, inter-governmental forums
    • Understanding the Internet in relation to international development while distinguishing it from the general category of information and communications technologies (ICTs)

    I’ll relate these considerations to the preparation of opinions for the Secretary General’s Report and the objectives of the upcoming WTPF, and to the context formed by the approaching WTPF and WSIS meetings, the upcoming CSTD event, and the CSTD’s activities this past May.  I will then address these concerns with an eye toward the next plenipotentiary proceedings in 2014, noting how they relate to relevant parts of the Guadalajara, Hyderabad and WSIS Resolutions.

    We have to understand what the implications of standards-making in an inter-governmental, transnational context really are, we have to understand development in relation to what the Internet really is, and we have to draw the right lines between the Internet and other notions such as ICTs and traditional telecommunications. These questions are key to gaining common understanding in the context of the question of Internet governance and the WSIS, and the issue of the relationship of intergovernmental bodies such as the UN and/or the ITU to the Internet itself.

    I. Addressing Opinions and Parts of the Secretary-General’s Third Draft of Its Report to the World Telecommunications Policy Forum

    The third draft of the Secretary General’s Report to the WTPF addresses two general themes: Internet governance, and how to foster development of technologies globally.  The first theme elicits questions of the nature of standards-making, multi-stakeholderism and “enhanced cooperation” in the international context, and the second elicits questions of the nature of the Internet and information and communications technologies (ICTs).

    A. Governance

    We see two opinions on governance in the IEG record, both from Saudi Arabia: one on enhanced cooperation and another on multi-stakeholderism.  They call for enhanced cooperation to be operationalized and invite the Secretary-General to establish an intergovernmental organization to “fully actualize the role of governments in the multi-stakeholder model of Internet governance.”

    The body of the Secretary-General’s report also includes a section on multistakeholderism and references global principles for governance as among the themes to be discussed.

    These components of the report should be adapted based on a fuller understanding of how the organizations long associated with the stewardship of the Internet have functioned in relation to national contexts wherein the role of governments is more reliably subject to the claims of fundamental liberties than the international context can provide.

    1. Characterizing the Unique Nature of International Governance

    The distinct character of the international arena, from a democratic standpoint, is often not understood sufficiently.  It is not enough, to establish a sustainable democratic regime, to simply participate in governing structures or to consent to the acts of representatives made accountable through elections.  A parallel fundamental characteristic of democratic regimes is the founding act of the people which establishes such a regime.  This is generally referred to as an act of the people’s “constituent power.”  When a people act as a people independently of their government to draft and ratify a constitution under which they will proceed to govern themselves, they are not only defining explicit rules for the regular conduct of the government, they are also asserting the priority of the people to the government.

    By exercising the constituent power, a people lay a historical foundation for the government wherein their fundamental rights come prior within the legal system to the prerogatives of the regular government, which acts in the name of the people on a day-to-day basis.

    This foundation does not exist in the international arena, and this is why inter-governmental forums are less reliable contexts within which the people can exercise their fundamental freedoms.  International treaties, including those declaring rights, are acts among governments, not constituent acts of the people that set the historic priority of their fundamental rights. International declarations of rights are therefore of limited value because the rights they articulate can be traded off against the will of governments, acting individually or severally, much more willingly than can occur within national contexts where governments do not invade fundamental liberties without the risk of being overruled by the democratic legal system, which holds certain fundamental rights as preeminent simply by reference to their founding acts. Though it is not regularly understood, this is why the standards-making bodies that have been the stewards of the Internet have readily allowed governments to participate in their initiatives, yet they are much more leery in the context of inter-governmental treaty structures.

    Two further considerations regarding the international arena: In addition to this basic nature of the distinction, it’s also important to note that in a democracy that accords broad treaty-making powers to its executive branch, the very demarcation of the international arena from the national geographical arena over which the people have claimed their sovereignty, allows the executive to act through treaties in ways that — much of the time, so far — override that local sovereignty, even that claim of the fundamental priority of the rights of the people within their nation.  A third general point is that transnational corporations also exploit this character of the international arena.  These three considerations are the fundamentals of what is at stake when we consider international governance from the standpoint of democratic considerations.

    2. Standards-making and National and International Governmental Participation

    Standards-making proceeds much more freely, with much more assurance that technical considerations will be practically considered on their own merits, in a context wherein governments cannot interfere without triggering claims of the priority of fundamental liberties.  A corollary is that inter-governmental standards-making will always be hampered not only because of the slow pace of diplomatic negotiations among governments, but also because of the inherent sense of reservation among participants in such forums regarding the much greater liberty of governments to act in the international arena without being subject to the claims of fundamental rights which have priority within national governments.

    3) Addressing “Enhanced Cooperation” Given This Characterization of the Nature of International Governance

    When we recognize the unique nature of the international context in these terms, we gain insight into some of the problems addressed in the May 18 CSTD proceeding on enhanced cooperation.

        • Parminder Singh, of IT for Change, advocates an intergovernmental approach to Internet governance, reflecting the recommendations from India.  He properly characterizes multi-stakeholderism in terms of representation and characterizes various stakeholder groups distinctly, calling for their roles in the transnational governing structure to be based on this understanding.  He justly notes the predominant influence of the US, as well as of monopoly communications providers in the current arrangements, and prescribes democracy as a solution.  All of these points are valid, and in fact the notion of representing types of groups of people as such has long been understood as a dubious proposition.  But neither the term multi-stakeholderism nor the internal notion of representation give us the insight we need to understand how best to frame international governance related to the Internet.
        • Anriette Esterhuysen, of Association for Progressive Communications, notes the confusions among participants in the discussion over whether enhanced cooperation is already taking place or not, recognizes the disparities in power and participation among countries, and mentions questions regarding compliance with global agreements, including human rights.  She also calls for greater participation by business, civil society and the technical community while noting that many stakeholders have no real voice yet.  Clearly governments seeking to act in relation to the Internet do not think that real governance that they would call enhanced cooperation is taking place.  And human rights and other international agreements are less binding among independent sovereign nations than legal terms that may be established within nations — but this is in the nature of the international arena, and human rights agreements can’t actually serve the same function there that fundamental rights do in national contexts.
        • Markus Kummer, of the Internet Society, recites certain characteristics of the Internet and the bodies currently serving as its stewards, noting that the relevant bodies are distributed, just like the Internet, with no single organization in charge, and the overall processes are open, bottom-up, freely accessible, public and multi-stakeholder.  He notes that there are presently two tracks, the Internet Governance Forum, which has a narrow, advisory scope under its current formulation, and the as-yet undefined “enhanced cooperation” notion, and simply calls for enhanced cooperation to be understood as learning to work together and find solutions that have real impact on peoples’ lives.  For the reasons I give above, the Internet Society faces the greatest existential stakes in the discussion regarding Internet Governance — but the reason for this is specifically because the kind of inter-governmental body that is contemplated to address the broad range of public policy issues broached by the WSIS statements, is unmoored by the limits on governmental overreach that are in place within free national contexts.  The characteristics of the Internet and the presently recognized steward bodies for the Internet that he outlines are specifically at risk.
        • Marilia Maciel, of the Center for Technology and Society in the Getulio Vargas Foundation of Brazil, notes the problems of privatization of regulation, disparities in decision-making involvement across regions, and the politicization of the issue of Internet governance, and calls for change that reflects principles of transparency, accountability and multistakeholder participation, while finding the notion of enhanced cooperation under the UN uncomfortable, mostly in reference to those same principles.  She calls for a new kind of shared decision-making process.  The problem of UN involvement is likewise a reflection of the same difference: the people do not have the same recourse in the international arena, and the non-transparent behaviors we find governments exhibiting in the UN reflect the greater liberty to act as governments untrammeled by constraints they are held to within their national contexts.

    4) Key Characteristics of the Internet Relevant to Governance (and Development)

    The most important features of the Internet that pertain to the questions of international governance — and, as we will note below, questions of what we are setting up and what we want to foster in terms of technology when we undertake various approaches to development — are:

        • that it is defined in terms of principles of interoperation between networks,
        • that the resulting platform is a general purpose platform,
        • that it is available as a general purpose platform to end users, and
        • that it enables general purpose connectivity directly between end users throughout the globe (or beyond), to all other networks that interoperate on the same terms.

    5) Formulating International Governance for the Internet

    With these features in mind, along with a proper recognition of the nature of international governance, it may be possible to articulate governance that provides for the Internet in a context that maintains its technical and liberty characteristics, while also providing an inter-governmental context that can address public policy issues that may affect the Internet.

    It would be possible to have oversight of the Internet explicitly accorded to national bodies as their hosts.  Their hosts could rotate among nations as well. These bodies can prove their worth by their conduct and by the merits of the interoperable technical standards they foster.  The scope of these bodies can be defined in technical terms on the basis of the above listed characteristics of the Internet.  The scope of the work of these bodies would not address public policy concerns that either enter within networks or require government authority.

    It would be in scope to have a body like this, hosted at the national level, develop a standard for notifying end users when they are accessing endpoints on networks that limit the general purpose platform, using technical and determinate criteria. This kind of standard would allow the extent to which there is real general purpose, open Internet connectivity available in every sense to be known.

    Users could be notified they are accessing endpoints on networks that are non-general-purpose, by a comprehensive set of criteria — from blocking or monitoring of ports, particular applications, or servers; to whether upload and download capacity are asymmetric, or whether capacity caps are in effect; to whether general purpose, application-agnostic traffic can be impinged on by specialized services on the same lines, or whether the lines are subject to traffic shaping based on application or content; to whether the network is on lines that are shared by regulation, or whether network neutrality is established by regulation; to blocking or monitoring traffic for spam, other undesirable content, copyright infringement, anti-government activities or for other purposes. This standard can also provide for notifications that transient traffic shaping is occurring because of temporary congestion issues. These modifications to the Internet standard of interoperation, would need a special designation to distinguish them from real, general purpose Internet connectivity, which is defined as general purpose, open connectivity for end users to every other endpoint on networks that offer the same conditions of connectivity.

    (Fleshing out this range of considerations, one more comes to mind that is a perfect example of the difference of the status of governments in the international arena: it would be impossible to create a reliable transnational governance regime supporting a standard that would notify users whether “transient government monitoring” (or continuous monitoring, for that matter) is taking place “under emergency circumstances” — specifically because, as explained above, in the transnational arena, governments have “epistemic legal priority,” not the people.  Every government is in the position in the international context to claim the prerogative to determine that their national interests warrant measures that invade rights over which within their national traditions their peoples may have claimed fundamental “epistemic legal priority” through their original constituent acts.)

    Other bodies might also be set up more consistent with the inter-governmental type of enhanced cooperation that seeks to enforce public policy concerns that may affect the Internet.  A body like this can craft agreements that support specific concerns, with provisions that allow individual nations to articulate under what conditions and to what parties general purpose Internet connectivity will nevertheless be available.

    We can thereby allow for nations to set up networks that are not general purpose, open Internet, but which provide notifications of specialized adaptations or policies that are in place.

    The unique feature of this arrangement is that it provides, to some extent, for the peoples of free nations to claim their fundamental rights. Individual nations can exercise their prerogatives regarding compliance with these intergovernmental rules on public policy issues, but more importantly, this arrangement allows for keeping the recourse to the priority of fundamental rights that people within free nations presently enjoy.  While their executives might continue to exercise their international treaty powers in ways that override the forms of recourse that their peoples more clearly enjoy within their nations, the distinctions above will at least allow that issue to be raised.

    B. Development

    1) Real Internet, ICTs and Development

    Besides the issue of Internet governance, the remaining opinions and topics or themes addressed in the third draft of the Secretary-General’s Report for the WTPF deal with development, particularly in terms of developing and diffusing ICTs globally; or they address policy issues more directly related to the Internet in a technical sense.

    The same characteristics that we have emphasized above in relation to articulating how to set up governance structures related to the Internet, also provide critical insight into development issues, specifically as regards the question of what kind of communications infrastructure is being set up: we need to make sure that development efforts establish a real Internet platform and not something else. For instance, national communications providers that have a privileged status in relation to physical infrastructure or the public right of way are not providers of Internet connectivity, but providers of a national intranet.  There is no Internet except among autonomous network providers that must interoperate to provide Internet connectivity to their end users.

    However, in this report, the emphasis is on fostering development of ICTs in general rather than broadband infrastructure as such, which was the focus of the US’s position for the WCIT. This emphasis on the broader term “ICTs” presents a somewhat different problem in that it reflects the broader framing of the overall WSIS project, which expresses goals of addressing numerous global public policy concerns related to the Internet, but which uses the term ICTs far more often than the term Internet.

    2) Need to Help CWG-Internet Define “ICTs”

    The Secretary-General’s Third Draft notes in section 1.1.4 that international Internet-related public policy issues are developed by CWG-Internet, which the Council established under Guadalajara Resolutions 102 and 140, the latter of which assigns the ITU a leading role in the WSIS Tunis Agenda and asks the Council to oversee the ITU in this role, and among other things to develop a working definition of “ICTs” to be provided as an input to the next plenipotentiary conference in 2014.  CWG-Internet’s membership is limited to Member States though it is open to consultancy with other stakeholders.

    We should be addressing this definition at the WTPF in order to clarify how to address the questions of Internet governance and fostering of the key “ICT” of Internet connectivity.

    3) General Usage of the Term “ICTs” In Relation to the WSIS and the CSTD’s Frame for Development

    The general category of ICTs that we find in the Secretary-General’s WTPF Report needs to be delineated clearly in relation to the Internet while we consider international development. The use of the term ICT should not be allowed to let the key distinctions to be overlooked, whereby the policies developed among governments in the international arena will then be able to gain priority over the characteristics of the Internet. The only mentions of Internet in the CSTD’s assessment last May of the progress in implementing the WSIS’s provisions, are in the term “Internet governance,” the Internet Governance Forum, and bare references to public policy issues that pertain to the Internet under the heading of enhanced cooperation.  The indicators for WSIS assessment mentioned in that report are phrased as measures of ICTs. The two Secretary General reports cited in the CSTD report, on WSIS progress and innovations in financing of development, both subordinate Internet to the term ICTs, and do not relate it to infrastructure. The CSTD’s resolution on Science and Technology in Development, issued at the same time, describes innovation policies with no mention of the Internet platform at all.

    ICTs and Internet-related public policy issues also need to be dealt with in terms of how they relate to the nature of the Internet and the nature of the difference of the role of the people in the transnational arena.

    We should be recommending to the US’s delegates, as they prepare topics for discussion at the WTPF and other future proceedings of the UN and ITU, how to address the distinctions between traditional telecommunications, the Internet, and ICTs, as well as how public policy issues that may impact the Internet fit into the scheme.

    C. National Telecommunications Incumbents

    In the meantime, we see a general overlooking, amid the confusion over international governance and development in relation to Internet connectivity, of the role of national telecommunications incumbents.  The sorting out regarding governance and development that we get by being clear about certain key principles of the nature of the internet and standards-making, also informs a proper understanding of the incumbent’s role in the international context.  We have already alluded to the capacity for international governmental bodies to legitimize the role of national communications providers that have a privileged relationship to broadband physical layer infrastructure and the public right of way. Telecommunications markets that are vertically integrated from the physical layer up are not general purpose Internet platforms, and they are not open to independent, competing providers interoperating based on the Internet standards.

    II. Fixing the Frame: Plenipotentiary Acts

    Finally, these considerations all need to be related to the plenipotentiary resolutions that would be affected, and which are guiding the entire process of engaging stakeholders in rationalizing the WSIS project.  Immediately below I reiterate the main considerations I’ve raised.  Below that I have provided an outline showing the Guadalajara Resolutions that are pertinent.  The Hyderabad and Geneva and Tunis WSIS Resolutions also need to be reviewed in this light:

    A. Key Considerations for Preparing the Secretary-General’s Report for the WTPF:

      • The unique nature of the international arena from a democratic standpoint
      • The nature of standards-making and how it relates to the unique nature of the international governance context
      • The key characteristics that let us understand whether we are providing for Internet in both the governance and development contexts:
        • that it is defined in terms of principles of interoperation between networks,
        • that the resulting platform is a general purpose platform
        • that it is available as a general purpose platform to end users, and
        • that it enables general purpose connectivity directly between end users throughout the globe (or beyond), to all other networks that interoperate on the same terms.
      • The need to delineate Internet from the general term ICTs as we address development issues
      • The proposed framework for Internet governance, with two bodies whose relationship to the Internet and its stewardship will be defined in terms of these key characteristics of the Internet, one of which will address public policy issues entailing governmental oversight, with the development of a general standard for notifying when users are accessing networks that are not fully open and general purpose by a comprehensive set of technical criteria

    B. Guadalajara Resolutions That Would Need Review and Revision In Order to Address International Governance of the Internet Appropriately

    1) Most Notable and Relevant:

        • Resolutions 100, 102, 130, 135, 140, 174, 178: ITU’s role re international public policy issues pertaining to the Internet, in building confidence and security in use of ICTs, in development of telecommunications/ICTs, providing technical assistance to developing countries, implementing regional projects, implementing the outcomes of the WSIS, in international public policy issues relating to illicit use of ICTs, in organizing work on technical aspects of telecommunications networks to support the Internet
        • Resolution 101: IP-based networks
        • Resolution 133: role of Member State administrations in management of internationalized domain names
        • Resolution 172: overall review of implementation of the outcomes of the WSIS
        • Resolutions 131, 181: ICT Index and community connectivity indicators; definitions and terminology relating to confidence and security in ICTs
        • Resolutions 122, 123, 170, 177: evolving role of the World Telecommunication Standardization Assembly; bridging the standardization gap between developing and developed countries; admission of sector members from developing countries to take part in the ITU-R and ITU-S sectors; conformance and interoperability
        • Resolution 138: the Global Symposium for Regulators
        • Resolutions 71, 72, 151, 157, 162: Strategic plan for the Union 2012-2015; linking strategic, financial and operational planning; implementing results-based management; strengthening project execution; the independent management advisory committee
        • Resolutions 14, 59, 163: Recognition of rights and obligations of all Sector Members of the Union; requests to the International Court of Justice for advisory opinions; Council working group on a stable ITU Constitution

    2) Other Resolutions Also of Note:

        • Resolutions 2, 146, 171: WCIT; review of the ITRs; preparations for WCIT
        • Resolutions 64, 137, 139, 180: non-discriminatory access to modern telecommunications/ICTs; Next generation network deployment in developing countries; telecommunications/ICTs to bridge the digital divide; facilitaing transition from IPv4 to IPv6
        • Resolutions 35, 36, 70, 98, 136, 175, 179, 182, 183, 184:
          telecommunications/ICTs for protection of the environment, in service of humanitarian assistance, in promotion of gender equality and empowerment of women, for safety and security of humanitarian personnel in the field, for monitoring and management in emergencies and disasters, for persons with disabilities, including age-related disabilities, in regard to climate change, in e-health, and facilitating digital inclusion initiatives for indigenous peoples
        • Resolutions 7, 25, 30, 34, 58, 124, 128, 143: various resolutions addressing regional initiatives and countries with special needs
        • Resolutions 32, 33, 37, 125, 126, 127, 159, 160, 161, 173: Various resolutions regarding special technical assistance to troubled locations
        • Resolutions 11, 68, 75, 114, 145, 169: Miscellaneous

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    Routing Around “Traditional Telecommunications” at WCIT: More Comments on Securing the Open Internet in the Transnational Context

    by on Dec.13, 2012, under Uncategorized

    by Seth Johnson

    Further Analysis
    “Recognized Operating Agencies”
    Competition and the Internet
    Vertical Integration and the Internet Platform
    Some Notes on Defending the Internet in a Transnational Context

    Further Analysis

    My initial analysis of the contributions of the US Delegation at the outset of the ITU’s World Conference on International Telecommunications (WCIT), concluding tomorrow, focused on highlighting certain discrepancies between the US’s rhetorical stance of opposition to a new international regulatory regime, increased control over Internet governance, and censorship, and what the actual recommended language would actually accomplish.  It shows how the US’s proposals emphasize a generalized conception of liberalized competition that if endorsed as part of the frame established by the ITU would serve to legitimize the failed conception of competition embodied by the telecommunications regulatory regime in the United States.  It also illustrates how the US recommendations do not actually limit the ITU from extending its scope beyond “traditional telecommunications,” as the Internet Society advocates that they should.  Instead the US’s position provides a broadly-stated frame that lets the ITU continue the expansive interpretation of its scope that it has already expressed in its previous proceedings, such as the Geneva and Tunis Declarations for the World Summit for the Information Society, and the Hyderabad World Telecommunications Development Conference Declaration.

    In the following I extend my comments to further illustrate the implications for the open Internet of the US’s position and to describe how the goal of preserving the Internet’s nature would be most effectively served.  Along the way, I first examine the dispute over applying the International Telecommunications Regulations (ITRs) to “recognized operating agencies” (ROAs) as the US has advocated, or to all “operating agencies” (OAs).  I also offer comments pertaining to the relation between the generalized language regarding competition that the US advocates, and the US incumbents’ conception of telecommunications in the IP-enabled world as a vertically integrated market which that language fully supports.

    “Recognized Operating Agencies”

    As the conference has proceeded, the US has presented its advocacy for the term “recognized operating agencies” (ROAs) as guarding against efforts to extend the scope of the ITU to cover the Internet. In this recent interview, US Ambassador and head of the US Delegation Terry Kramer associates ROAs with traditional providers of telecom services while referencing the conference’s charter, which is focused on telecommunications, thereby projecting the ROAs versus OAs issue as about distinguishing telecommunications from Internet concerns.  However, what should also be noted is that the US is seeking to define a relationship between the ITU and international telecommunications providers that designates certain providers as specially “recognized” by their governments.

    The debate over ROAs or OAs is a dispute between contingents that both want to endorse oversight by the ITU — while we have not yet actually limited its scope or defined the distinction between “traditional telecommunications” and such terms as the Internet, ICTs, or information services, and while we are endorsing a broadly-stated definition of telecommunications that the ITU has already seen fit to interpret expansively in other proceedings prior to the WCIT.

    The distinction between the two positions is simply about two different modes by which to define the relationship of the ITU to providers of international telecommunications: either 1) by enacting explicit rules now that go beyond “traditional telecommunications,” and applying them to all “operating agencies” among nations that sign onto the ITRs; or 2) by not enacting rules that address the Internet (as yet), but by endorsing the ITU’s oversight in relation to particular “recognized” operating agencies that will then hold a special status under international rules for providing international connectivity to the public within their Member States.

    These are not the only options available for defining this relationship, and below I will explain how recognizing the nature of the Internet’s foundation would guard the Internet more effectively than the frame presently being promulgated at the the WCIT.  Nevertheless, the US presents its position for ROAs favorably as compared to the position of nations proposing to cover all OAs, by identifying the proposals of these nations as extending the ITU’s scope to the Internet and opening up the prospect of empowering censorship.  As I noted in my previous analysis, this stance against censorship can easily divert attention from addressing critical questions that might arise given the ITU’s already-established relationship to providers of physical telecommunications infrastructure.  The US’s argument for using the ROA term in terms of resisting censorship is an example of this, whereby it advocates a relationship between the ITU and US providers of international telecommunications services that places the incumbents’ national network offering in a unique new position legitimized by the framing of an international body.

    The way the US distinguishes other agencies from “recognized” operating agencies offers indications of the special status that ROAs would have (“other operating agencies that are not involved in the provision of authorized or licensed international telecommunications services to the public”).  Apparently other agencies will not provide international Internet connectivity to the public, and would need a license or authorization of some sort to hold “recognized” status.  This distinction in terms of authorization or licensing may also reveal that Article 9, the provision allowing “special arrangements” separate from the 1988 ITRs, and under which the international Internet was developed since then, will need to be removed or made subject to new forms of authorization (although revisions to that effect have not been proposed).

    In his recent interview, Ambassador Kramer offers new distinctions, identifying the ROA term with “traditional providers of public telecommunications services,” distinguishing this category from “Internet players” and private or governmental networks, rather than describing the distinction in terms of whether agencies provide international connectivity to the public or are authorized to do so.  This newer formulation does not clearly reveal whether by “private networks” Kramer means other providers competing at the physical layer and offering international connectivity to the public.

    Kramer also repeats the framing of the ROAs vs OAs issue in terms of resisting censorship, distinguishing telecommunications from Internet issues by noting the OA term could include “Internet players” and thus extend the regulations to give oversight of content.  Again, this allows the US to valorize its position in contrast to the prospect of censorship, but it also directs attention away from the fundamental basis of the dynamism of the Internet in competition at the physical layer.

    Competition and the Internet

    When entry by competing providers at the physical layer is impeded by dominant providers in any region, you do not have an Internet within that region — you have an intranet. There is no Internet if there is no interoperation between autonomous networks — and there is no free market in information products without competition at the physical layer making that market possible for end users.

    Likewise, there is no Internet within a vertically integrated telecommunications environment that has joined the physical layer with the higher layers within which Internet applications are deployed.

    Telecommunications policy is fundamentally about transmitting information across physical space, whether through the air or carried over or buried under the ground.  The freedom to compete at the physical layer is the crucial basis for the Internet that is at stake when developing telecommunications policy frameworks, including in the international context.

    Communications advocates recognize that the Internet platform that existed in the United States before 2005 was characterized by a highly competitive market among autonomous Internet providers at the physical layer.  Bruce Kushnick of The New Networks Institute has long chronicled the developments in communications policy in the United States, and in a recent article on Huffington Post he provides an instructive detailing of the history of Internet and broadband provisioning.  As of the end of 2000, there were over 9,000 independent ISPs in the field providing access to the Internet to 77.5 million subscribers, and while we can’t measure the demand produced by the Internet platform in terms of the products of the “traditional telecommunications” context, Kushnick shows that this competition at the physical layer was associated with a pronounced growth in deployed phone lines.

    The disappearance of this market was not a case of horizontal or vertical market consolidation by the incumbents; it was a regulatory act that in one move eliminated the competition and allowed the US incumbents to claim the physical infrastructure layer and vertically integrate it with their own information services offerings.

    We will not be able to guard the Internet until policy frameworks are articulated that clearly identify the role of competition at the physical layer in such a way that regulators will clearly understand the importance of the distinction.

    Vertical Integration and the Internet Platform

    The foremost question that delegates for the US must address regarding international telecommunications in the IP-enabled world is about potential impacts on the dynamism that comes from a real Internet that would be brought by the vertically integrated telecommunications context represented by the US incumbents.  A vertically integrated market benefits the competitiveness of particular telecommunications providers in certain ways but it works directly against other benefits for the public that are crucial aspects of the Internet platform and the market it creates.

    The merits of a vertical market in telecommunications in relation to public policy regarding the Internet cannot be assessed according to indicators related to particular products offered by particular telecommunications providers who have vertically integrated their production and supply lines across the physical layer.  Instead, the relevant merits are about the direct social advantages of: 1) the flexible, general purpose platform that is assured as a natural result of providers competing at the physical layer, who must also interoperate in a general purpose manner for the sake of their end users’ global reach and in support of the unpredictable variety of products that may be developed or consumed on other participating networks; and 2) the very differentiation of products and services made possible by this highly flexible platform, on the basis of which end users and network providers compete.

    Both of these advantages of the competitive market in interoperating, independent providers at the physical layer are counteracted when telecommunications providers gain market dominance by vertically integrating the physical layer with higher layers.

    These two advantages express the underlying dynamics produced by establishing a general purpose medium among interoperating providers that enables a new market in globally accessible and distributable information products.  The economics of vertical markets, on the other hand, relate to control and efficiency for particular producers and particular products supported by their production and supply chains.  An analysis in those terms does not address the impact of that integration on the very basis for a new kind of market made possible by a globally connected platform whose flexibility is assured by competition among providers at the physical layer.

    Some Notes on Defending the Internet in a Transnational Context

    As long as the Article 9 provision for special arrangements remains in the ITRs, we can always continue to use that as we have in the past, and ignore overtures by other countries (or the US) proposing that the ITU extend its provenance in such a way as to allow it to legitimize constraints on competitive access to the physical layer or to enact rules that obstruct innovation on the Internet platform established on that foundation. If we consider eliminating Article 9, however, then “recognizing” particular providers for oversight under the ITRs is not a particularly relevant limitation for preventing the ITU from undermining the Internet platform, or from expanding its scope to Internet governance.

    If we are to limit the ITU from expanding its scope in such a way as to interfere with the Internet, then we must recognize the nature of the Internet’s basic foundation.  There is only an Internet in a context constituted by open and free competition among independent providers who can readily gain access at the physical layer.  Conversely, when access to communications across physical space is impeded by privileged providers of infrastructure, that constitutes an intranet, not an Internet.  Thus recognition of the physical layer is key to defending the Internet, while overlooking the distinction alows the platform to be undermined.

    We can only secure that platform from the ambitions of an intergovernmental forum like the ITU by making sure the forum is not empowered with a frame that lets its provenance over the activities of providers of international connectivity be asserted in such a way that independent, private network providers are not readily able to enter the field and interoperate.

    Note that of course this approach cannot stop oppressive governments from interfering with the Internet within their own national networks, but this is the frame that in the long (and short) run will defend and preserve the Internet, because it is only within those national traditions that place a priority on fundamental freedoms that the kind of environment that will continue to route around censorship will exist.  It is only within this kind of environment that the Internet actually thrives and survives because in such a free country the activities of its citizens on that platform are secured by their claim of fundamental rights.  This is what we rely on to secure freedom in America — not “recognized” operating agencies, generalized support for “liberalized competition,” or broadly stated definitions of telecommunications.

    Rather than endorsing the ITU with a frame that helps rationalize what passes for competition here in the US while setting the US incumbents up with a special relationship to new international rules governing international telecommunications, the WCIT proceedings in Dubai could become the occasion for setting a frame that secures the Internet platform while preventing international governance from becoming a means for empowering local governments to act through their special relationships with providers of national intranets to disrupt the freedom of the platform.

    The WCIT can be an opportunity to set a marker beyond which the executive branch in the US will not allow the US incumbents to pass. Whatever happens with the ongoing efforts of the US incumbents to characterize attempts to enforce the obligations that they incur along with the privileges they obtain in relation to the public right of way as governmental regulatory takings or violations of their free speech rights, we still can put their efforts to set the frame in these terms within an larger political context that can help us take back our communications policy.  But we can do so only so long as the executive branch is willing to use the treatymaking power to draw the line rather than to help the incumbents extend their reach to the international arena.

    We certainly don’t want our executive branch to endorse an international forum with a frame that will legitimize the failed conception of the US incumbents and let it stand as what we rely on to represent what fosters the development of infrastructure to support the Internet.

    If the administration were ready to state that we cannot secure the Internet unless we recognize that it’s based on a foundation of network providers that can readily gain access to and compete at the physical layer, then the WCIT could become an historic occasion to re-empower the Internet, to effectively guard against misapplications of international governance related to the Internet, to reassure US constituencies that have long sought to redirect telecommunications policy in the US, and to reassert the basis in fundamental freedoms that is the actual foundation that renders the Internet capable of routing around censorship.

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    Assessing the Prospects the WCIT Holds for the Open Internet: What the US Delegation’s Contributions Reveal

    by on Dec.02, 2012, under Uncategorized

    by Seth Johnson

    (also at TelecomTV and .NXT)

    The Question to Ask About the WCIT
    General Rhetorical Thrust of the US Delegation’s Recommendations
    Failing the Internet: What the US Delegation’s Recommendations Leave Out
    Protecting the Internet: Getting It Right First

    The Question to Ask About the WCIT

    The key question that Internet advocates must ask as the ITU updates its International Telecommunications Regulations (ITRs) at the World Conference on International Telecommunications (WCIT) this week is: What is being legitimized by these proceedings?

    The discussion surrounding the conference has been largely couched in terms of a contention between oversight of the Internet by various multistakeholder organizations more commonly associated with it, such as ISOC, IETF, ICANN and the regional registries, versus oversight by governments.  Troubling prospects are raised of binding regulations being established for the Internet through an international body backed by global governments, and of repressive governments gaining cover for their efforts to bottle up the medium under the sanction of such a body.

    The discussion of these issues, however, is a step removed from the more basic, far more critical consideration of the frame that the ITU’s proceeding will establish — what it will legitimize. We can gain much more insight when we recognize that the establishing of an international forum like this is not only of use for setting rules that will be mutually honored as binding among the participants, but also for the simple endorsing of a frame, of a set of terms and definitions regarding a subject area to which the participants are subscribing on behalf of their nations.

    Focusing on this question only requires examining the text that’s actually being proposed for the WCIT, and because many of the recommendations of the WCIT participants are now a matter of the public record, as a result of the partial record originally provided by WCITLeaks, and more recently the apparently nearly-current-and-complete archive made available by .NXT, we can now address this frame, without the distraction of the debate over contentious questions to which we had been limited before this past week.

    Among these submissions is the following text from the US Delegation regarding competition, originally proposed publicly by ISOC.  What makes it notable is the way it presents very generalized language regarding how to encourage development of communications infrastructure “inter alia through the fostering of competitive and liberalized telecommunication markets:”

    MOD USA/9A2/6

    Administrations*Member States shall encourage investment in endeavour to provide sufficient telecommunication facilities to meet the requirements of and demand for international telecommunication services,inter alia through the fostering of competitive and liberalized telecommunication markets.

    This recommendation can be said to represent the most significant outcome we can expect from the WCIT conference. It is of critical importance 1) because of its failure to acknowledge how the drive to develop infrastructure comes out of the way the basic foundation of the Internet works; and 2) because its generality comports perfectly well with the failed model of competition manifested by the telecommunications regime in the US.

    Below we offer some comments on the recommendations of the US Delegation, including its proposed update to Resolution 4 on “The Changing Telecommunication Environment,” to illustrate how the dynamism of the basic foundation of the Internet is not reflected in the frame presented by these contributions.  As such, the ITRs as envisioned by the US will only serve to legitimize the failed concept of competition promoted by the telecommunications incumbents in the US.

    General Rhetorical Thrust of the US Delegation’s Recommendations

    The US Delegation’s contributions project many of the same concerns we see expressed in the terms of the debate regarding the import of the ITU’s project.  Their recommendations place emphasis on resisting the prospects of international regulation, of increasing control over governance of the Internet, and of broadening the scope of the ITRs “to empower any censorship of content or impede the free flow of information and ideas.”1 They call for high-level principles, minimal or limited changes to the ITRs, an emphasis on their voluntary nature, and recognition of “the sovereign right of Member States to regulate their telecommunications sectors,” recommending that the scope of the ITRs apply only to “recognized operating agencies,” and that no changes be made in the definitions of telecommunications and international telecommunications service.2 The US Delegation places its recommendations within the context of the contrast between the “state-controlled companies providing basic fixed service” or “monopoly carriers” that existed at the time of the last revision of the ITRs, and the circumstances at present, with carriers conveying traffic under commercial arrangements within “competitive environments” or “liberalized markets with multiple companies competing across a wide range of services and technologies.”3

    More importantly, while the US projects concern for the questions presently under debate regarding international regulation, censorship and control by an inter-governmental body, the US also calls for attention to be placed on “the critical issue of promoting development and investment in telecommunications infrastructure in all countries.”4 The frame that the US presents in support of this goal is the key development at this juncture.

    Failing the Internet: What the US Delegation’s Recommendations Leave Out

    While it emphasizes development of infrastructure, the US does so without recognizing the key distinction between the US approach and that of other locales, where access to the physical layer is commonly recognized as a pertinent characteristic of the competitive framework, by which diverse competing providers may readily and freely enter the market and interconnect, thereby expanding the creative potential of the Internet platform — and where this access to physical infrastructure already installed across the public right of way is not characterized as a governmental regulatory taking, as it often is in the US.

    The US Delegation’s revisions emphasize stability and predictability and fair competition to attract private sector investment in infrastructure, as well as flexibility for innovation and development of new services, and technology neutrality in the ITRs.5 But they do not address how the foundation of the Internet drives demand for infrastructure through the growth of a free market of independent, interoperating providers who have ready access across the right of way.6 And while they note that “benefits” derive from “all market players [having] the flexibility to innovate and develop new services in competitive markets, in response to consumer demand,” nowhere do they identify how end user innovation drives demand.

    On Censorship: The US delegation couples its resistance to increasing control and its promotion of “an enabling environment for investment and innovation,” with opposition to censorship or blocking of the “free flow” and “global exchange of information and ideas.”  This stance in support of openness, however, does not necessarily apply to the provision of Internet connectivity by competing providers readily entering the field at the physical layer.  While laudable in itself, the critical feature of this stance in opposition to censorship is that it can also divert attention from the relationship the ITU has to providers of physical layer infrastructure.  Opposition to censorship in a transition to endorsing the ITU should not be allowed to substitute for directly addressing the implications of ITU oversight specifically in relation to the physical layer.

    From the standpoint of binding rules that might be enacted by an inter-governmental body, limiting the scope of rules so they do not empower censorship has an appealing cast. But from the standpoint of considering the frame being legitimized as we endorse the oversight of a body defined in this manner, this position based solely on generalized support for liberalized competition while limiting the scope of the ITRs so they do not support censorship does not address the basis of the Internet on an open foundation that allows independent providers to freely enable Internet users to transfer information among themselves.

    Furthermore, the telecommunications regime in the US is presently dominated by incumbents that claim regulating the infrastructure they have deployed across the public right of way raises the question of interference with fundamental free speech rights.  A frame in the ITRs that emphasizes free flow of information and ideas is actually fully in accord with that conception and could help play a role in legitimizing it.

    Neither, for that matter, will an opposition to empowering censorship in the ITRs prevent censorship by those nations that choose to impose it. Particular nations can always censor and restrict the flow of information by regulating telecommunications locally.  Of course, they might also attempt to employ the ITU to establish a basis to achieve that at the international level.  The Purpose and Scope of the ITRs already provide the ITU with a scope that makes this at least a possibility7, not the least because it reaches to the level of providers of physical infrastructure, though this sort of development would require accommodation and cooperation by participating Member States, in cooperation with their international telecommunications providers.

    However, the fact of the matter is that circumstances that obviate censorship and that promote free communication of information ultimately derive from legal regimes within particular national traditions that place a priority on such principles.  A set of rules articulated by an international telecommunications body, founded in the actions of Member State executive branch functionaries, even when coupled with open participation by volunteers, cannot provide the fundamental kind of grounding required to support principles that perpetuate free governments.

    On ICTs and Convergence: A similar point applies to the question of the ITU’s relationship to the Internet in terms of convergence.  Various materials and proceedings of the ITU project the notion that it should expand its scope beyond past conceptions of telecommunications in light of the trend toward convergence of information and communications technologies. The outcome products for the previous steps in the ITU’s progress toward the WCIT conference are replete with references conflating telecommunications with information and communications technologies (ICTs) and extolling the glorious prospects of global advances that will be brought on by convergence and the wonders of the Internet, including the Guadalajara Resolutions Nos. 71 and 139, the Geneva and Tunis Declarations for the World Summit for the Information Society, and the Hyderabad World Telecommunications Development Conference Declaration. (The ITU/UNESCO Broadband Commission Platform for Progress and State of Broadband Reports are more attentive to distinguishing these categories.)

    One wonders how we should understand the US Delegation’s recommendations urging that the scope of the ITRs be limited, given this fact regarding the background of the ITU’s proceedings leading up to the WCIT.

    One could oppose the proposition that the ITU’s scope should be expanded in the way its previous proceedings envision, by making an argument consistent with the US’s resistance to enabling censorship: this argument would observe that this scope would give the ITU a capacity to regulate content.

    However, as already noted, a focus on resisting censorship diverts attention from addressing the real foundation of the Internet’s dynamism, and this is the key matter at stake as we contemplate the terms under which we might endorse ITU oversight internationally.  That can only be secured by making sure the forum is not empowered with a frame that lets its provenance over the activities of providers of international connectivity be asserted in such a way that independent, private network providers are not readily able to enter the field and interoperate.

    On Technology Neutrality: The US Delegation supports the following definitions of “telecommunication” and “international telecommunication service” in the ITRs, stating that retaining them will make the ITRs a “flexible and enduring treaty” since they are technology neutral:

    NOC USA/9A1/18

    Telecommunication: Any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.

    ADD USA/9A1/19

    International telecommunication service: The offering of a telecommunication capability between telecommunication offices or stations of any nature that are in or belong to different countries.

    These are definitions of very broad scope.  For our purposes here, it is important to note that while a principle of technology neutrality in crafting definitions assures their stability and flexibility by eliminating unnecessary specificity or presuppositions, it can easily end up serving, as it does here, to support broad definitions that overlook essential distinctions.  This language doesn’t narrow the scope of telecommunications to premises that might have been seen to apply within, or to define its scope within, regulatory frameworks of the past.

    In relation to the question of how development of infrastructure is promoted, the failure to acknowledge or raise the consideration of physical facilities works in concert with the frame laid out generally through the rest of the US Delegation’s recommendations, to support the legitimization of a deficient concept of the kind of competition the foundation of the Internet is built upon.

    In relation to the question of how wide the scope of the term telecommunications reaches, this definition is fully consistent with the expansive references to convergence and ICTs in the Guadalajara Resolutions, the Geneva and Tunis WSIS Declarations, and the Hyderabad WTDC Road Map. While the US projects a stance of resistance to expansion of the ITU’s scope and to the prospects of censorship, increasing control over Internet governance and an international regulatory regime, its appeal here to technology neutrality in support of the stability of these definitions actually works against limiting the ITU from assuming the broad scope of the agenda already declared through previous proceedings.

    What is important is what deficiencies there may be in the frame that is being instituted while the US endorses the ITU’s forum — not the appeals within the US Delegation’s recommendations to resisting censorship and control or binding inter-governmental regulation.  And the same technology neutral language that is designed to support the stability and flexibility of the ITRs, also allows rules to be legitimized that overlook the fundamental basis of the Internet’s dynamism in competitive access to the physical layer — the same basis that expands demand to develop physical infrastructure.

    Resolution 4: “The Changing Telecommunication Environment”

    We are concerned with whether the WCIT will produce a frame that will allow the legitimizing of a conception of the telecommunications regime that does not work, and above we have elaborated how this concern is borne out in the US Delegation’s inputs for the ITRs. Their recommendation to revise Resolution 4 on “The Changing Telecommunication Environment,” varies from this pattern slightly.  It lists specific courses of action for the ITU and its Member States which are phrased in terms that could be read as allowing for approaches that are based on policy frameworks that provide ready access across the right of way.8 And of the supporting documents they cite, the ITU/UNESCO Broadband Commission reports are notable for referencing this consideration explicitly, including a graphic of the OSI stack that designates the lower layers as regulatory, the higher ones as competitive, and the transport layer as indefinite.9

    However, Resolution 4 places these recommendations within a frame that fails to incorporate recognition of the dynamic by which Internet providers and end user innovation spur demand for infrastructure development, reflecting the frame the US Delegation promulgates for the ITRs as such. We see the same pattern of a broadly-stated endorsement of competition without references that guard against overlooking the Internet’s foundation in competitive access at the physical layer. We see the same references to the importance of infrastructure development, policies for stability, predictability and fair competition, and fostering “an enabling environment for investment in telecommunications infrastructure.” These references to an “enabling environment” reflect similar terminology in the outcome documents from the ITU’s previous proceedings leading up to the WCIT. All of this language is fully consistent with the conception of competition the US incumbents project.

    Protecting the Internet: Getting It Right First

    Avoiding Distraction: While the discourse is consumed by debates surrounding the threat of an international regulatory regime directed by governments taking oversight of the Internet away from the open and participatory multistakeholder organizations that have long served as its stewards, the key question that illuminates how we should approach the implications of the WCIT is about what the terms within the ITRs that define the ITU’s relation to the Internet will actually say.  When we examine the position of the US, we see recommendations to update the ITRs with language that will legitimize a broadly-stated conception of competition in relation to development of infrastructure that places the fundamental basis of the Internet’s vitality at risk.  This is a representation of competition in the field of telecommunications that easily accommodates the conception of the incumbents in the United States, where the prospect of competition at the physical layer is severely limited and where, as Paul Budde says, Internet infrastructure and content are treated as combined.

    Thus, while we contemplate the implications of the ITU’s moves to institute themselves in relation to the Internet, the most significant and immediate practical concern we should have on the WCIT is about legitimation of the position of privileged providers by the language the US is actually proposing for the ITU’s core rules. Even without being mandatory, so long as the incumbents and the administration go along with each other, they can rationalize what passes for competition here in the US as fitting the generalized language of liberalized competition they’re espousing for the ITRs.

    We certainly don’t want our executive branch to endorse an international forum that will legitimize this conception and let it stand as what we rely on to represent what fosters the development of the Internet and the rollout of infrastructure.

    The Moment is Now: While Internet advocates must continue to engage in terms of assuring that a body that develops international rules among governments does not overrule, supplant or act to the detriment of already recognized, voluntary multistakeholder bodies, the important question is upon us at this moment: what is the frame that will be legitimized by those who are taking part in the ITU’s process, as they act to establish such a new international body?

    The established multistakeholder organizations long associated with the Internet’s oversight are its stewards in a way that the US is not; and other nations have other experiences related to telecommunications policies that build the Internet on a foundation that allows competing providers to readily enter the field and freely interoperate and connect their end users to the world.  Stakeholders in the broadest sense — everyone who wishes to communicate by means of this same platform — have the responsibility at this juncture to present other examples besides what the US experience represents, and to help clarify to the participants in the WCIT how they should best assure this international governmental body does not interfere with our ability to participate in building the power of the Internet.

    If we are to proceed with the endorsement of any such forum constituted of delegates empowered to assert claims over the Internet on behalf of their local governments, we should certainly not do so unless there is explicit recognition in its frame of the role that a foundation based on free and independent providers readily connecting the world plays in driving the Internet’s growth.

    Footnotes

    1) Addendum 1, Introduction:

    “As a decentralized network of networks, the Internet has achieved global interconnection without the development of any international regulatory regime. The development of such a formal regulatory regime could risk undermining its growth.”

    [. . .]

    “[T]he United States will not support proposals that would increase the exercise of control over Internet governance or content. The United States will oppose efforts to broaden the scope of the ITRs to empower any censorship of content or impede the free flow of information and ideas.”

    2) Addendum 1, United States’ Views on the ITRs:

    “The United States believes the changes that have occurred in the global communications sector since the 1988 World Administrative Telegraph and Telephone Conference (WATTC‑88) in Melbourne, Australia, can be addressed and accommodated with limited revisions to the ITRs. It is important that the ITRs continue to reflect high-level principles that are sufficiently flexible to accommodate existing and future technological and market changes.

    [. . .]

    “The success of international communications since 1988 indicates that the ITRs have provided a sound contribution to innovation and growth. As a result, most provisions of the ITRs require minimal, if any, changes. The exception is Article 6, which addresses the exchange of international telecommunications traffic. Article 6 requires substantial revisions to reflect today’s communications environment and to accommodate future technological and market changes.”

    [. . .]

    “Therefore, the United States proposes the following:
    · Minimal changes to the preamble of the ITRs;
    · Alignment of the definitions in the ITRs with those in the ITU Constitution and Convention, including no change to the definitions of telecommunications and international telecommunications service;
    · Maintaining the voluntary nature of compliance with ITU-T Recommendations;
    · Continuing to apply the ITRs only to recognized operating agencies or RoAs; i.e., the ITRs’ scope should not be expanded to address other operating agencies that are not involved in the provision of authorized or licensed international telecommunications services to the public; and
    · Revisions of Article 6 to affirm the role played by market competition and commercially negotiated agreements for exchanging international telecommunication traffic.

    Addendum 1, Proposals for the Work of the Conference:

    “[T]he United States also recognizes the sovereign right of each country to regulate its own telecommunications sector. Moreover, the United States opposes adding provisions to the ITRs that can be interpreted to restrict the choices available to governments in regulating their national telecommunications regimes.”

    3) Addendum 1, United States’ Views on the ITRs:

    “The current ITRs reflect a communications market where most traffic was exchanged between monopoly carriers and where the traffic was fixed telephony, fixed data, and telegraph. Today, most traffic is exchanged under commercial arrangements between carriers operating in competitive environments where there are multiple competing services.”

    Addendum 2, Introduction:

    “The United States’ proposals, in both the first tranche and this second tranche, reflect the dramatic changes in the telecommunications sector since the International Telecommunication Regulations (ITRs) were last revised in 1988, from a sector dominated by state-controlled companies providing basic fixed service to liberalized markets with multiple companies competing across a wide range of services and technologies. The United States’ proposals seek to build on the success of those changes by focusing on market-based solutions and approaches instead of global regulation, and by highlighting the importance of creating an enabling environment of further liberalization and competition that encourages private sector investment.”

    4) Addendum 2, Introduction:

    “In addition to proposals removing obsolete provisions and aligning the ITR text with the Constitution and Convention, the United States’ proposals address the critical issue of promoting development and investment in telecommunications infrastructure in all countries. There is a factually documented positive connection between well-developed telecommunications networks, which provide widespread access to international telecommunications services, and economic growth and societal benefit. Thus, it is appropriate that the WCIT promote high level policies for increasing access to telecommunications around the world.

    5) Addendum 1, Proposals for the Work of the Conference:

    “The United States recognizes the role that the ITRs have played in promoting the growth of telecommunications networks. Meanwhile, the United States also recognizes the sovereign right of each country to regulate its own telecommunications sector. Moreover, the United States opposes adding provisions to the ITRs that can be interpreted to restrict the choices available to governments in regulating their national telecommunications regimes. If the ITRs are to promote telecommunications development in an enduring manner, they must remain flexible enough to allow for rapid technological change and the evolution of new business models and consumer-oriented services.”

    Addendum 2, Introduction:

    “As recognized by the World Summit on the Information Society (WSIS), policies that create regulatory stability and predictability and ensure fair competition at all levels are necessary to attract private sector investment in telecommunications infrastructure. The United States’ proposals highlight the importance of establishing an enabling environment for investment and innovation, and ensuring that international telecommunications networks remain open to the global exchange of information and ideas. Specifically, the United States proposes to revise Resolution 4, “The Changing Telecommunication Environment” to highlight the importance of development, competition, and private sector investment in telecommunications infrastructure.”

    [. . .]

    “The United States believes that governments, consumers, citizens, and society benefit significantly when all market players have the flexibility to innovate and develop new services in competitive markets, in response to consumer demand. Telecommunications markets that are structured in this way attract investment, fuel technological advancement, and are efficient in delivering services to consumers. For this reason, the United States does not support proposals to amend the ITRs that would force a change to the operation of competitive markets.”

    MOD USA/9A2/38, Resolution No. 4:

    “considering
    “a) that the Geneva Declaration of Principles adopted by WSIS recognized that policies creating a favorable climate for stability, predictability, and fair competition at all levels should be developed and implemented in a manner that attracts more private investment in telecommunications infrastructure;”

    6) The Internet Distinction statement provides a clear description of how this foundation was originally established in the case of the United States.

    7) International Telecommunications Rules, Article 1.1:

    a) These Regulations 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. They also set rules applicable to administrations*.

    b) These Regulations recognize in Article 9 the right of Members to allow special arrangements.

    8) The US’s proposed update to Resolution 4 calls for the ITU to open telecommunications markets to competition, establish a universal service program to support infrastructure investment, encourage efficient and innovative mobile broadband practices for new market entrants, enable government programs to stimulate demand for and investment in telecommunications, and provide policy leadership on investment

    It encourages Member States to promote affordable access through regulatory environments that are fair, transparent, stable, predictable and non-discriminatory, that promote competition and technological and service innovation, and that encourage private investment incentives, and to share best practices regarding regulatory regimes that liberalize markets, promote competition and stimulate investments.

    9) The Platform for Progress report recognizes the physical network as a distinct layer from the services and functions that travel across it, encourages removal of pricing and other barriers to access to networks and infrastructure as far as possible, recommends facilitating sharing of infrastructure, and calls for “promoting of facilities-based competition [. . .] with policies encouraging service providers to offer access on fair market terms.”

    The State of Broadband 2012 report distinguishes three infrastructure layers: the passive layer, the active infrastructure layer, and the service layer. It is more focused on articulating how return on investment works in this framework, acknowledging sharing of infrastructure as an option among others and assigning “the intelligence of the network” to the “active infrastructure” layer. It observes that open access is critical in the case of publicly-funded national broadband networks, stating that it is needed when “economic bottlenecks [are] preventing competitive supply.” It cites “an emerging regulatory consensus” supporting open access to national broadband infrastructure and warns against state aid distorting the market, where subsidies for infrastructure development are linked to open access mandates.

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