The Internet Distinction

———- Forwarded message ———-

From: Seth Johnson <seth.p.johnson@gmail.com>
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)” <JohnsRB@state.gov>, “Perlmutter, Shira” <shira.perlmutter@uspto.gov>, “Schlegelmilch, Kristine (Geneva)” <SchlegK@state.gov>, “Zoller, Julie N” <zollerjn@state.gov>
Cc: Manon Anne Ress <manon.ress@keionline.org>, Jamie Love <james.love@keionline.org>, “Reves, Todd” <Todd.Reves@uspto.gov>, “Shapiro, Michael” <Michael.Shapiro@uspto.gov>, “Gordon, Marian R” <gordonmr@state.gov>, “Holiday, Cecily C” <holidaycc@state.gov>, Doreen McGirr <mcgirrdf@state.gov>, Justin Hughes <hughes@yu.edu>

 

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)” <JohnsRB@state.gov>
Date: Thu, Dec 11, 2014 at 7:00 AM
Subject: RE: Question for today’s debrief on the SCCR
To: “seth.p.johnson@gmail.com” <seth.p.johnson@gmail.com>
Cc: “Schlegelmilch, Kristine (Geneva)” <SchlegK@state.gov>

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:seth.p.johnson@gmail.com]
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
<Shira.Perlmutter@uspto.gov> 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 <seth.p.johnson@gmail.com>
> 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

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

• Nationally-hosted Internet Oversight Bodies
• A Technical Standard for Notifying End Users Whether They Are Accessing Endpoints on Networks that are Not Open and General Purpose
• Inter-Governmental Public Policy Oversight Bodies

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.

• Nationally-hosted Internet Oversight Bodies

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.

• A Technical Standard for Notifying End Users Whether They Are Accessing Endpoints on Networks that are Not Open and General Purpose

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.)

• Inter-Governmental Public Policy Oversight Bodies

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

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.

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.