By EDRi

This article is also available in:
Deutsch: [WCIT: Was passiert ist und was es für das Internet bedeutet | https://www.unwatched.org/EDRigram_10.24_WCIT_Was_passiert_ist_und_was_es_fuer_das_Internet_bedeutet?pk_campaign=edri&pk_kwd=20121219]

After two weeks of intensive negotiations, the World Conference on
International Telecommunications (WCIT) adopted the revised
International Telecommunications Regulations (ITRs), a controversial
treaty, which has been viewed by many as an attempt by the International
Telecommunications Union (ITU) and Member States to take over the
Internet.

The conference has been hailed as a success by the ITU with 89 Member
States signing the treaty. Meanwhile, others have pointed out that it
failed to achieve consensus leading to 55 Member States, including the
United States, Canada, Australia, the United Kingdom and several other
EU countries not signing the treaty.

So what happened in Dubai? Clearly, at the heart of the negotiations was
the question whether the ITRs were going to cover the Internet and
broader Internet policy issues. Despite repeated assurances of the ITU
Secretary-General Dr Hamadoun Toure that the ITRs were not about the
Internet or Internet Governance, it was abundantly clear that the ‘I’
word was on the minds of delegates as they set to discuss the Preamble
to the ITRs and various other provisions about spam and security.

After over a week of stalemate, matters came to a halt when the Iranian
delegate called for a vote on the inclusion of the “right of access of
Member States to access international telecommunications services” in
the Preamble to the ITRs. The proposal came in as delegates were
debating the inclusion of human rights language in that same Preamble.
The amendment was passed by a vote of 77 for, 33 against and 8
abstentions. For several western Member States this crossed a red line
amid concerns over several other provisions and a controversial Internet
Resolution contained in the “package” proposed by WCIT Chair Mohamed
Nasser Al Ghanim (UAE).

As the Chair highlighted several times, the “package” was a compromise
text, which was meant to achieve a “delicate balance” between the
various interests at stake. In particular, it introduced a reference to
“human rights obligations” in the Preamble to the ITRs, partly with a
view to assuage concerns about the possible negative implications for
freedom of expression and the right to privacy which may arise as a
result of the provisions on security and spam. Another clause was also
added making clear that the ITRs did not address the content-related
aspects of international telecommunications services.

At the same time, these elements failed to address the basic objection
of several Member States, led by the US, that spam brought in
content-related issues was inconsistent with the new clause excluding
content from the ambit of the ITRs. Moreover, there were continuing
concerns over the vague language used in Article 5A in relation to
‘network security’, which was seen by many as legitimizing censorship
and sweeping surveillance practices by Member States.
Finally, the “Internet Resolution” proved to be a particularly sticking
point for non-signatory countries, not least because of the way in which
it was adopted. The resolution “to foster an enabling environment for
the greater growth of the Internet” had been included as part of a deal
whereby the word “Internet” would be kept out of the treaty text and
pushed back in a Resolution. On 13 December 2013, the Chair baffled EU
delegates and others by passing the Resolution after “taking the
temperature of the room”- without a vote -just minutes before the close
of a plenary session in the wee hours of the morning.
While the Resolution is non-binding, it overly emphasises the role of
States in Internet–policy making at the expense of the multi-stakeholder
model, which has been the hallmark of Internet Governance. It also
unduly broadens the mandate of the ITU beyond its traditional technical
remit to include Internet public policy matters despite assurances of
the ITU Secretary-General to the contrary.

The introduction of a “right of Member States to access international
telecommunications services” was the nail in the coffin. As the debate
took place on the back of a discussion about human rights, the amendment
was widely regarded as an attempt to legitimise state control over the
Internet. The reality might be more complex than that. In particular, it
has been argued that this right could be used to force Internet
application, content and service providers to provide services to
particular organizations and in territories even if they don’t want to.

So what should we make of the ITRs? Although it fell well below
international standards of freedom of expression, as a compromise text,
the Chair’s package was just about acceptable. And even now, the ITRs
package remain a high level document, the word Internet does not feature
in the main text of the treaty and a number of contentious proposals,
such as the ETNO proposal, have been averted. It also contains a
reference to human rights, which is unusual but welcome for a
telecommunications treaty.

At the same time, the vague language of the provisions about security
and spam could be used to give a veneer of international legitimacy to
undue restrictions on free speech and privacy online. The Internet
Resolution was politically unacceptable and irretrievably tainted by the
deeply unsatisfactory process( It later emerged that this process was
common ITU practice, which was meant to help achieve consensus) where by
it was adopted. In a climate of distrust about some of the Member States
and the ITU’s true intentions, there were serious reservations to be had
regarding the revised agreement, which was not even necessary in the
first place. As the UK concluded, “My delegation came to work for
revised ITRs. But not at any cost. We’re not able to sign a bad
agreement that does nobody any favours and makes nobody happy”.

Are the ITRs going to make any real practical difference to the Internet
as we know it? It seems unlikely, at least for now. At the same time,
the split in the number of countries who signed the agreement and those
who didn’t clearly shows widely different views about the future of the
Internet and the provision of telecommunication services. The WCIT also
brought into sharp relief the concerns of developing countries that seek
greater access to the Internet.

Looking ahead, it is clear that these and other concerns will have to be
recognized and addressed in the various multi-stakeholder fora where
Internet policy is being discussed. As the ITU seeks to assert its
relevance in Internet policy discussions, particularly around
cybercrime, Internet advocates will have to continue pushing for greater
access and transparency of this organization in line with the
multi-stakeholder model of Internet Governance. These changes are vital
and need to take place as soon as possible as a slew of other meetings
that will further shape the debate over the role of governments and the
ITU lie ahead beyond WCIT in the run up to the World Summit on the
Information Society (WSIS+10).

WCIT 2012
http://www.itu.int/osg/wcit-12/highlights/signatories.html

Third Series of Texts Submitted by Editorial Committee to the plenary
meeting – WCIT 2012 (13.12.2012)
http://files.wcitleaks.org/public/S12-WCIT12-C-0065!!MSW-E.pdf

What really happened in Dubai? (13.12.2012)
http://www.internetgovernance.org/2012/12/13/what-really-happened-in-dubai/

Beyond WCIT – WSIS+10 and the coming year in Internet governance
(14.12.2012)
http://news.dot-nxt.com/2012/12/14/beyond-wcit-%E2%80%93-wsis10-and-comin

A19’s legal analysis of the initial draft of the future ITRs (19.10.2012)
http://www.article19.org/resources.php/resource/3483/en/itu:-draft-of-the-future-international-telecommunications-regulations

WCIT WATCH: Analysis of the new ITRs Part I (14.12.2012)
https://www.accessnow.org/blog/2012/12/14/wcit-watch-analysis-of-the-new-itrs-part-i

Consensus Crumbles as Nations Split on Internet Governance (14.12.2012)
https://www.cdt.org/pr_statement/consensus-crumbles-nations-split-internet-governance

(Contribution by Gabrielle Guillemin – EDRi member Article 19)