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
- Characterizing the Unique Nature of International Governance
- Standards-making and National and International Governmental Participation
- Addressing “Enhanced Cooperation” Given This Characterization of the Nature of International Governance
- Key Characteristics of the Internet Relevant to Governance and Development
- Formulating International Governance of the Internet
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).
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.
When we recognize the unique nature of the international context in these terms, we gain insight into some of the problems addressed in the May 18 CSTD proceeding on enhanced cooperation.
- Parminder Singh, of IT for Change, advocates an intergovernmental approach to Internet governance, reflecting the recommendations from India. He properly characterizes multi-stakeholderism in terms of representation and characterizes various stakeholder groups distinctly, calling for their roles in the transnational governing structure to be based on this understanding. He justly notes the predominant influence of the US, as well as of monopoly communications providers in the current arrangements, and prescribes democracy as a solution. All of these points are valid, and in fact the notion of representing types of groups of people as such has long been understood as a dubious proposition. But neither the term multi-stakeholderism nor the internal notion of representation give us the insight we need to understand how best to frame international governance related to the Internet.
- Anriette Esterhuysen, of Association for Progressive Communications, notes the confusions among participants in the discussion over whether enhanced cooperation is already taking place or not, recognizes the disparities in power and participation among countries, and mentions questions regarding compliance with global agreements, including human rights. She also calls for greater participation by business, civil society and the technical community while noting that many stakeholders have no real voice yet. Clearly governments seeking to act in relation to the Internet do not think that real governance that they would call enhanced cooperation is taking place. And human rights and other international agreements are less binding among independent sovereign nations than legal terms that may be established within nations — but this is in the nature of the international arena, and human rights agreements can’t actually serve the same function there that fundamental rights do in national contexts.
- Markus Kummer, of the Internet Society, recites certain characteristics of the Internet and the bodies currently serving as its stewards, noting that the relevant bodies are distributed, just like the Internet, with no single organization in charge, and the overall processes are open, bottom-up, freely accessible, public and multi-stakeholder. He notes that there are presently two tracks, the Internet Governance Forum, which has a narrow, advisory scope under its current formulation, and the as-yet undefined “enhanced cooperation” notion, and simply calls for enhanced cooperation to be understood as learning to work together and find solutions that have real impact on peoples’ lives. For the reasons I give above, the Internet Society faces the greatest existential stakes in the discussion regarding Internet Governance — but the reason for this is specifically because the kind of inter-governmental body that is contemplated to address the broad range of public policy issues broached by the WSIS statements, is unmoored by the limits on governmental overreach that are in place within free national contexts. The characteristics of the Internet and the presently recognized steward bodies for the Internet that he outlines are specifically at risk.
- Marilia Maciel, of the Center for Technology and Society in the Getulio Vargas Foundation of Brazil, notes the problems of privatization of regulation, disparities in decision-making involvement across regions, and the politicization of the issue of Internet governance, and calls for change that reflects principles of transparency, accountability and multistakeholder participation, while finding the notion of enhanced cooperation under the UN uncomfortable, mostly in reference to those same principles. She calls for a new kind of shared decision-making process. The problem of UN involvement is likewise a reflection of the same difference: the people do not have the same recourse in the international arena, and the non-transparent behaviors we find governments exhibiting in the UN reflect the greater liberty to act as governments untrammeled by constraints they are held to within their national contexts.
4) Key Characteristics of the Internet Relevant to Governance (and Development)
The most important features of the Internet that pertain to the questions of international governance — and, as we will note below, questions of what we are setting up and what we want to foster in terms of technology when we undertake various approaches to development — are:
- that it is defined in terms of principles of interoperation between networks,
- that the resulting platform is a general purpose platform,
- that it is available as a general purpose platform to end users, and
- that it enables general purpose connectivity directly between end users throughout the globe (or beyond), to all other networks that interoperate on the same terms.
5) Formulating International Governance for the Internet
With these features in mind, along with a proper recognition of the nature of international governance, it may be possible to articulate governance that provides for the Internet in a context that maintains its technical and liberty characteristics, while also providing an inter-governmental context that can address public policy issues that may affect the Internet.
It would be possible to have oversight of the Internet explicitly accorded to national bodies as their hosts. Their hosts could rotate among nations as well. These bodies can prove their worth by their conduct and by the merits of the interoperable technical standards they foster. The scope of these bodies can be defined in technical terms on the basis of the above listed characteristics of the Internet. The scope of the work of these bodies would not address public policy concerns that either enter within networks or require government authority.
It would be in scope to have a body like this, hosted at the national level, develop a standard for notifying end users when they are accessing endpoints on networks that limit the general purpose platform, using technical and determinate criteria. This kind of standard would allow the extent to which there is real general purpose, open Internet connectivity available in every sense to be known.
Users could be notified they are accessing endpoints on networks that are non-general-purpose, by a comprehensive set of criteria — from blocking or monitoring of ports, particular applications, or servers; to whether upload and download capacity are asymmetric, or whether capacity caps are in effect; to whether general purpose, application-agnostic traffic can be impinged on by specialized services on the same lines, or whether the lines are subject to traffic shaping based on application or content; to whether the network is on lines that are shared by regulation, or whether network neutrality is established by regulation; to blocking or monitoring traffic for spam, other undesirable content, copyright infringement, anti-government activities or for other purposes. This standard can also provide for notifications that transient traffic shaping is occurring because of temporary congestion issues. These modifications to the Internet standard of interoperation, would need a special designation to distinguish them from real, general purpose Internet connectivity, which is defined as general purpose, open connectivity for end users to every other endpoint on networks that offer the same conditions of connectivity.
(Fleshing out this range of considerations, one more comes to mind that is a perfect example of the difference of the status of governments in the international arena: it would be impossible to create a reliable transnational governance regime supporting a standard that would notify users whether “transient government monitoring” (or continuous monitoring, for that matter) is taking place “under emergency circumstances” — specifically because, as explained above, in the transnational arena, governments have “epistemic legal priority,” not the people. Every government is in the position in the international context to claim the prerogative to determine that their national interests warrant measures that invade rights over which within their national traditions their peoples may have claimed fundamental “epistemic legal priority” through their original constituent acts.)
Other bodies might also be set up more consistent with the inter-governmental type of enhanced cooperation that seeks to enforce public policy concerns that may affect the Internet. A body like this can craft agreements that support specific concerns, with provisions that allow individual nations to articulate under what conditions and to what parties general purpose Internet connectivity will nevertheless be available.
We can thereby allow for nations to set up networks that are not general purpose, open Internet, but which provide notifications of specialized adaptations or policies that are in place.
The unique feature of this arrangement is that it provides, to some extent, for the peoples of free nations to claim their fundamental rights. Individual nations can exercise their prerogatives regarding compliance with these intergovernmental rules on public policy issues, but more importantly, this arrangement allows for keeping the recourse to the priority of fundamental rights that people within free nations presently enjoy. While their executives might continue to exercise their international treaty powers in ways that override the forms of recourse that their peoples more clearly enjoy within their nations, the distinctions above will at least allow that issue to be raised.
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
1) Most Notable and Relevant:
- Resolutions 100, 102, 130, 135, 140, 174, 178: ITU’s role re international public policy issues pertaining to the Internet, in building confidence and security in use of ICTs, in development of telecommunications/ICTs, providing technical assistance to developing countries, implementing regional projects, implementing the outcomes of the WSIS, in international public policy issues relating to illicit use of ICTs, in organizing work on technical aspects of telecommunications networks to support the Internet
- Resolution 101: IP-based networks
- Resolution 133: role of Member State administrations in management of internationalized domain names
- Resolution 172: overall review of implementation of the outcomes of the WSIS
- Resolutions 131, 181: ICT Index and community connectivity indicators; definitions and terminology relating to confidence and security in ICTs
- Resolutions 122, 123, 170, 177: evolving role of the World Telecommunication Standardization Assembly; bridging the standardization gap between developing and developed countries; admission of sector members from developing countries to take part in the ITU-R and ITU-S sectors; conformance and interoperability
- Resolution 138: the Global Symposium for Regulators
- Resolutions 71, 72, 151, 157, 162: Strategic plan for the Union 2012-2015; linking strategic, financial and operational planning; implementing results-based management; strengthening project execution; the independent management advisory committee
- Resolutions 14, 59, 163: Recognition of rights and obligations of all Sector Members of the Union; requests to the International Court of Justice for advisory opinions; Council working group on a stable ITU Constitution
2) Other Resolutions Also of Note:
- Resolutions 2, 146, 171: WCIT; review of the ITRs; preparations for WCIT
- Resolutions 64, 137, 139, 180: non-discriminatory access to modern telecommunications/ICTs; Next generation network deployment in developing countries; telecommunications/ICTs to bridge the digital divide; facilitaing transition from IPv4 to IPv6
- Resolutions 35, 36, 70, 98, 136, 175, 179, 182, 183, 184:
telecommunications/ICTs for protection of the environment, in service of humanitarian assistance, in promotion of gender equality and empowerment of women, for safety and security of humanitarian personnel in the field, for monitoring and management in emergencies and disasters, for persons with disabilities, including age-related disabilities, in regard to climate change, in e-health, and facilitating digital inclusion initiatives for indigenous peoples - Resolutions 7, 25, 30, 34, 58, 124, 128, 143: various resolutions addressing regional initiatives and countries with special needs
- Resolutions 32, 33, 37, 125, 126, 127, 159, 160, 161, 173: Various resolutions regarding special technical assistance to troubled locations
- Resolutions 11, 68, 75, 114, 145, 169: Miscellaneous
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