By EDRi

Over the next two weeks, EDRi will participate in two video conferences, on the 7 December and 12 December, organised by the European Commission in order to get live feedback from the ITU’s World Conference on International Telecommunications (WCIT) in Dubai.

The video conferences are an opportunity to get answers on the discussions taking place regarding some of the proposals that have been put forward and shed more light on the negotiations that could profoundly change the internet as we know it. Some ITU members states have tabled proposals that could indeed mean the end of the open, neutral and free internet. Issues of cybersecurity, limitations on access to infrastructure and sovereignty raise serious concerns about their impact on fundamental rights such as the right to freedom of expression and to privacy.

Send your tweets with the hashtag #askthecom to @edri_org and we will publish your questions and the answers we receive in updates of this post.

Update 7 December 2012

Eddy Hartog, Head of Unit International Relations, explained the work of the four staff members that are representing the European Commission in Dubai. The cooperation is going very well, and the Commission had no difficulty in getting observer status. After the ITU had decided to make committee 5 (composed of two working groups) and plenary meetings open to the public, many controversial issues have been moved to informal and ad hoc discussion groups. The Commission is trying to bring these discussions to committee 5 in order to avoid that things get buried.

One of the issues currently being debated is the question what to do with ITU resolutions and whether they should be binding through the treaty. Regarding Internet governance, the positions of the ITU member states were almost immediately clear. Russia tabled a proposal on Internet governance which was thrown out but which did certainly not mean the end of the debate. The Commission stressed that the EU’s position remains very firm that the ITRs should not include questions of internet governance.

Apparently, while there has been progress and consensus on keeping Appendix II of the ITRs, the discussions on roaming were more difficult. Overall, the Commission believes that the text is going into right direction in terms of transparency and being in line with EU legislation.

Scope of the treaty

EDRi inquired what the EU Commission’s position is regarding the on the scope of the ITRs. We wanted to know if the Commission was in favour of the ITRs applying to “recognised operating agencies” or rather to the much broader collection of “operating agencies”. We also asked what the Commission’s position is on key definitions such as “telecommunications / information and communication technologies (ICTs)”.

The Commission explained that the issue of recognised operating agencies was a politically important point which is still being discussed. The Commission prefers to keep the existing language. However, during the debates, there was a clear demand to include ICTs – which is an issue that also still needs to be discussed. Apparently, there were mixed opinions but the Commission supported the demand not to add a new definition including ICTs and was rather optimistic that this will not be adopted since it was far too vague.

Security

While the Arab States, some African and former Soviet countries support adding new language to the treaty on cybersecurity, the European regions oppose this language.

The European Commission admitted that technical aspects could be discussed but that the ITRs should not go beyond that. The Commission also explained not to be in favour of any actions on including fraud and spam since it does not believe that an international treaty is not the right place for this.

Routing

We asked the Commission if there has there been any decision on Art. 3.3 and the proposal that an «international route» should no longer be limited to traditional telecommunications.

The Commission opposes this position. If the provisions proposed by the Arab States and Camroon were to be accepted, administrations, that are mainly governmental entities, would have the right to know how traffic is routed – which raises serious data protection and privacy concerns. A compromise has not been reached yet between those that are in favour and those that do not think that an ITU member state should have the right to ask operating agencies.

ETNO’s proposal / IP interconnection

We relayed a question asked via twitter: What is the Commission’s position on ETNO’s proposal? Commissioner Kroes said that the ITU not the right place to discuss ETNO proposals. Whatis the right place? Does COM support the proposal for different Qualities of Service on the public Internet?

One idea by ETNO was to regulate IP interconnection. Eddy Hartog expained that they had a very clear debate on this during the European Conference of Postal and Telecommunications Administrations in Istanbul and reached a consensus with European partners that this issue does not have a place in the ITRs. ETNO has signed up to this European position.

IP interconnection will certainly be an upcoming topic for an internal EU debate with different opinions being voiced. However, in Dubai, Europe’s position is coherent and presented with one voice: The ITRs are not the right place to deal for IP interconnection. However, the issue was not completely solved yet.

Charging and accounting

We also inquired regarding the status of the discussions on Article 6, on charging and accounting. The Commission explained that Art. 6, on accounting and charging, was a very difficult topic. The US wants to delete this article completely.

Including human rights language

EDRi relayed a question by the NGO Access: We would like to know the Commission’s position on the inclusion of human rights language in the treaty (Tunisian proposal-C25). If they are favorable to including it, is there a preference on where (preamble v. in actual treaty)?

The European Commission representatives highlighted that they were not in favour of including this kind of language since there was no need to raise human rights the treaty. While they are very important, the Commission is not of the opinion to put everything that seems important into this treaty. However, it is possible that some parties might try to put this in again at a later stage, among other issues (such as security etc).. In any case, he congratulated Tunisia stressing that this was certainly a different Tunisia than two years ago.

Civil society statements

EDRi relayed a question that was asked by the NGO CDT: 29 statements by citizens and civil society organisations submitted through the Public Views and Opinions page hosted by the ITU – they have never been formally introduced into the conference documents and are not part of the briefing materials for delegates. Can the Commission explain why this is not the case and can the Commission call attention to these documents during the negotiations?

The Commission explained that this was due to a legal problem since only ITU member states could make proposals.
Furthermore, even if material from civil society is not included in the briefing documents, the Commission explained to have met many stakeholders before and the fact that the statements were not included in briefing documents does not mean that they are not taken into consideration.

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The Chairman of conference and Hamadoun Touré apparently do not have the same general vision of where the ITRs should go. The Commission concluded that hopefully 98% of the discussed items will not find their way into the final text apart from some paragraphs on price transparency and inadvertent roaming. On Wednesday, there might be more concrete text (12/12/2012).

Update 12 December 2012

On 11 December, the ITU has circulated a new version of the draft International Telecommunications Regulations (ITRs) leaked by WCITLeaks.org. The final text of the ITRs should be finished today, with the signing ceremony scheduled to take place on Friday, 14 December 2012.

This draft document (DT/51-E pdf) presented indeed some improvements. For instance, there is no definition of “ICTs” or “Internet” in the current text which is in line with EDRi’s position not to expand the mandate of the ITU to internet governance. According to the Commission, many smaller countries have also expressed concerns about bringing internet issues into the ITRs. On the other side there are still those countries that want the ITRs to cover internet governance, such as the Iranian delegation which explicitly stated that it came to Dubai for three points: security, spam and access to networks.

There are also many problematic issues remaining in the draft, mainly due to the fact that the language is so vague that it can be interpreted widely by member states, for instance the wording on spam. In addition, according to the Commission, many peculiar things are being brought up again.

At the same time, the European Commission considers that some parts of the draft could also turn out to be helpful for European policies, for example on roaming, and believes that this treaty will be a reasonable package for EU.

Definitions

Regarding the term “operating agencies” vs “ROAs,” the debates are still continuing. Currently, it looks as if a compromise definition will be adopted, which excludes, for example, private networks and thereby minimises the problem.

Net neutrality

More worrying, some of ETNO’s proposals seem to have found their way into the draft text again. Articles 42R to 42T demand that “Member States shall take measures to ensure that reasonable compensation is received for carried traffic” and that they “shall take measures to ensure that operating agencies have the right to charge providers of international communication applications and services appropriate access charges based on the agreed quality of service”.

To our question regarding these articles, the Commission stated that it had extreme difficulty with these provisions. None of them were suitable to neither the US nor the EU. These parts of the text apparently were pushed in very last minute. Even if the European operators had a different starting position, they had been persuaded that the ITRs are not the right place for this issue to be addressed. Later in the evening EDRi received an email by the Commission stating that these articles have all been sent back to a drafting group which, the Commission hoped, will determine that they are not appropriate for the ITRs.

International Networks

Regarding Article 3.8 a new draft suggests that “Member States shall, if they so elect, be able to manage the naming, numbering, addressing, and identification resources used within their territories for international telecommunications.”

While it could be argued that Article 3.8 would thereby authorise States to manage key Internet structures that are on their territories and to mandate that all sites hosted on in-country servers to only use domain issued by the state, the Commission believes that this wording limits member states to the current mandate of the ITU since “telecommunications” was added to the language. The Commission first thought that this article was to be deleted, but according to the new proposal, the naming and numbering referenced is apparently strictly limited to technologies that are already within the mandate of the ITU.

The negotiations were expected to go late into the night – yesterday evening, participants at the WCIT 2012 were still far from reaching an agreement on the final wording of the ITRs.