Recognizing WSIS Impacts

Unless it acknowledges key characteristics of the Internet, the World Summit on the Information Society will easily undermine it

To State Dept: re International Privacy, ITU Plenipotentiary Conference Frame

———- Forwarded message ———
From: Gadsden, Sally F
Date: Wed, Oct 17, 2018 at 2:52 PM
Subject: RE: My Comments at the Last ITAC Meeting
To: Seth Johnson , Holiday, Cecily C , Haag-Hooks, Jodi , Lusin, Adam W
Cc: Zichy, Franz J , Jackson, Lynnette M N , Najarian, Paul B

Adam – forwarding this to you as requested.

—–Original Message—–
From: Seth Johnson
Sent: Wednesday, October 17, 2018 12:56 PM
To: Holiday, Cecily C ; Haag-Hooks, Jodi
Cc: Zichy, Franz J ; Jackson, Lynnette M N ; Najarian, Paul B
Subject: Fwd: My Comments at the Last ITAC Meeting

Hi, can someone please forward this note to Adam Lusin (now Director, Multilateral Affairs, International Communications and Information Policy)?

Thanks.  Seth

———- Forwarded message ———
From: Seth Johnson
Date: Sun, Aug 12, 2018 at 3:18 PM
Subject: My Comments at the Last ITAC Meeting
To: Jackson, Lynnette M N , Lang, Stephan A , Zichy, Franz J ,
Cc: Najarian, Paul B ,

Hello Lynette, Stephan, Franz, all,

The following recaps my comments at the last ITAC meeting.  There’s a larger framework of analysis I work within, but all I’m covering here is what I said then, as a somewhat close approximation from memory.  I addressed privacy and the overall framework presented by the ITU Plenipotentiary resolutions.

I asked about whether the ITU PP preparations were discussing privacy with respect to government surveillance, noting that that was a somewhat rhetorical question since international discussions tend to be framed by governments and they don’t have a marked tendency to go into discussions of limits on them.

I then explained that the ITU is developing a framework more in keeping with the kind of intergovernmental frame modeled by the EU, a trade treaty based union, which has some important differences from the type of union we have in the United States.  I observed that despite the fact that the EU COJ’s overruling of the Safe Harbor Agreement was essentially based on the failure of that agreement to address the privacy right with respect to limits on governments as data passed between the US and the EU, the Privacy Shield and GDPR discourse had shifted the focus and developed a framework focused on positive rights limits on private corporations instead, and in fact the GDPR had carved out national intelligence, so the standard the court had applied against the Safe Harbor with respect to government surveillance would not apply to the new privacy framework when it enters the courts.

I compared this emphasis on positive and treaty-based rights at work in the EU to the United States’ federal divided sovereignty constitutional union with its strong negative fundamental rights limiting the government. The general upshot being that government surveillance remained an open question in international discussions regarding privacy and the Internet, that the general tendency of the ITU’s approach, consonant with the EU’s approach, was not designed to address that concern.

I observed that the Internet is uniquely suited for the international arena since it is designed to enable universal general purpose interoperability among heterogeneous nodes — or nations as the case may be — and the strong negative rights limits on the government we know here are inherently local since they are rooted in local constitutional acts, and that is unlike the way rights and policies work in intergovernmental treaties.  I said that this administration might be well suited to make that point, that the strength of rights within our “node” [is] one thing that we can present as a special strength America may represent as we interoperate with other states.

I clarified in followup that rather than conceiving an issue like privacy as a matter of developing special rules for interoperability “across nodes” (of a statutory rather than constitutional nature), we should remember first that the Internet already provides universal general purpose interoperability, and that if we approach privacy or other issues by developing interoperability in the sense of a common policy, we need to make sure that in so doing we do not supplant the free and open general purpose Internet platform.

I also gave four key concerns with the ITU’s framework of resolutions they have been working within since the last Plenipotentiary meeting, noting that I was working from notes from that time, so I had to state them generally without giving chapter and verse.  Those points were:

First, they declare the relationship of the ITU’s activities with sustainable development and Internet governance.  I noted that the Information Society project had effectively bracketed sustainable development for the first decade and since open infrastructure had been marginalized domestically for the same period the result is that we have not had a discussion of the sustainability of open infrastructure within the Information Society initiative.  The last Plenipotentiary conference came at about the same time as the WSIS+10 processes and the (re)introduction of sustainable development goals, after the Millennium Developments Goals had left out clear mention of sustainable development as a theme and indeed after 1997 the UN had separated its sustainable development track to a distinct track of conferences for this period (I also noted that a similar thing happened with respect to “intellectual property,” which had been directed to other, more directly trade- or finance-oriented tracks, for the same period, so likewise that concern had also been bracketed).  Both sustainable development and intellectual property sounded significantly in the last UN-wide Development Agenda in 1997. []

I also noted that while I’ve heard discussion about “ITU governance” related to preparations for the ITU Plenipotentiary conference, in fact the ITU’s Plenipotentiary resolutions currently directly claim terms of *Internet* governance, and I hoped the US would be attentive to that, averting a tendency to enable the ITU to redefine governance of the Internet by claiming the term.

Second, the ITU Plenipotentiary resolutions articulate sustainability in terms consistent with vertical integrated telecommunications frameworks and managed service intranet models.  I recalled that the ITU’s standards sector activities at the last WTSA had left out any consideration of standards that would reflect open infrastructure telecommunications environments or best efforts packet relaying as such.

Third, the ITU Plenipotentiary resolutions act to establish the ITU’s flawed framework in these respects as an underlying technical infrastructure for the Internet — again, claiming the term in association with a framework that rather assiduously leaves out the open network of autonomous networks that makes up the essence of the free and open Internet (and such as we support with an open infrastructure environment).  This technical infrastructure can be used to validate and enforce Internet-related public policy, so the way we approach issues (decentralized, heterogeneous, end-to-end in an open network [of] networks versus centralized approaches based in environments that support specialized or managed services) is implicated instrumentally in the implementation of this infrastructure.  That is, we should discuss these issues more before we allow a certain model to be set up that differs from the design and strengths of the open network of networks.

Fourth, I briefly noted that the resolutions articulate the relationship of the Information Society project to United Nations General Assembly resolutions on themes such as cybersecurity, ICTs for Development and sustainable development while using overgeneral terms such as ICTs, without being clear about what’s unique about the Internet.

Anyway, believe it or not, that does address what I covered, certainly with more developed effort at clarification here in this written recap.

Please be sure [these comments are] seen by those working on preparations for the ITU Plenipotentiary conference, as I promised to provide them.

Seth Johnson
Coordinator, Internet Distinction Project

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