WCIT: Failure or success? Impasse or way forward?

1. WCIT: Failure or success?Impasse or way forward? Richard HillHill & Associates ATU-ITU Seminar on the outcomes of WCITDurban, 10 July 2013 Parts of this presentation are based on Richard Hill, “WCIT: failure or success, impasse or way forward?” International Journal of Law and Information Technology (forthcoming) DOI:10.1093/ijlit/eat008

2. Was WCIT-12 a success or a failure? • Failure: • Did not achieve desired goal, which was full consensus • Split amongst the membership, resulting in a vote • Media coverage was partly inaccurate, influenced by misinformation campaign • Success: • Active participation from all parts of the world • Broad agreement: 90% of the treaty is not controversial, 10% was agreed by 62% of Member States present and accredited to sign • Key issues were identified and discussed • It was agreed to continue discussions with a view to reaching consensus

3. Why the ITRs are important The International Telecommunication Regulations (ITRs): • Establish general principles on the provision and operation of international telecommunication services offered to the public • Facilitate global interconnection and interoperability • Underpin harmonious development and efficient operation of technical facilities • Promote efficiency, usefulness, and availability of international telecommunication services • Treaty-level provisions are required for international networks and services The ITRs underpin how we communicate with each other by phone or computer, with voice, video or data, and across the globe. The 1988 ITRs were not limited to telephony, on the contrary, they enabled the growth of the Internet.

4. What is “telecommunications”? • Defined in the ITU Constitution: • “Any transmission, emission or reception of signs, signals,writing, images and sounds or intelligence of any nature by wire, radio, optical or otherelectromagnetic systems.” • Many interpret this to include at least parts of “the Internet”. • But this is not the case in all countries

5. ITU’s mandate • Explicitly includes Internet matters • greater role in Internet governance • cybercrime • spam • respect for privacy and the protection of personal information and data • etc. This was agreed by consensus by all Member States

6. The goal is universal connectivityBut consider Average Broadband Speeds (Mbps) Source: CISCO VNI, 2012

7. Key WCIT12 overall outcomes • New ITRs (as old ITRs) not restricted to telephony • New ITRs (as old ITRs) cover “authorized operating agencies”, not just ROAs, but only with respect to international services offered to the public • No treaty text explicitly mentioning Internet • But implicitly included in some provisions, as is the case for the old ITRs • Explicit recognition of existing human rights provisions • New pro-consumer provisions • New pro-competitive provisions • New pro-investment provisions • Recognition of divergent views on Internet matters and need to discuss further

8. What is in the 2012 ITRs (1/2) • Preamble (human rights, right to access) • Article 1: Purpose and scope (not content-related, AOA) • Article 2: Definitions • Article 3: Right to communicate at good technical quality; countries to coordinate their infrastructure (misuse, CLI, traffic exchange points) • Article 4: International telecom services to be made available to the public (roaming transparency, quality and competition) • Article 5: Priority to be given to emergency communications (emergency number notification) • Article 6 [5A]: Network security • Article 7 [5B]: Combating spam Note: these are not the actual titles of the articles. The number in [ ] is the old art. no. Items in red are new compared to the 1988 version

9. What is in the 2012 ITRs (2/2) • Article 8 [6]: Charging and accounting (commercial agreements, encourage investments, competitive wholesale pricing) • Article 9 [7]: Suspension of services • Article 10 [8]: Dissemination of information (Member States to communicate information to ITU) • Article 11 [8A]: Energy efficiency, E-waste • Article 12 [8B]: Accessibility • Article 13 [9]: Special arrangements • Article 14 [10]: Entry into force; reservations • Appendix 1: Accounting rate system • Appendix 2: Maritime telecommunications • Some provisions of the old Appendix 3 on service telecommunications were moved to Article 6 Note: these are not the actual titles of the articles. Items in red are new compared to the 1988 version

10. WCIT-12 Resolutions • Special measures for landlocked developing countries • Globally harmonized national emergency number • Fostering an enabling environment for the greater growth of the Internet(controversial) • Periodic review of the ITRs • International telecommunication service traffic termination and exchange Note: these are not the actual titles of the Resolutions. All are new. All old Resolutions, Recommendations, and the Opinion were suppressed.

11. Legal status • All Resolutions entered into force on 15 December 2012 • New treaty enters into force in January 2015 • Until then the 1988 treaty is valid • After January 2015 • New treaty binds countries that have agreed to be bound (they are parties to the treaty) • Old treaty binds countries that have not agreed to be bound by the 2012 treaty (non-parties) • Relations between a party to the 2012 treaty and a non-party are governed by 1988 treaty • Unless a 2012 party denounces the 1988 treaty

12. Obligations of non-parties • The provisions of the new treaty do not apply to countries that do agree to be bound by it. These provisions include: • transparency of mobile roaming prices • accessibility • energy efficiency and reduction of e-waste • cooperation to combat unsolicited bulk electronic communications • Etc. • Thus, the citizens of non-parties may not benefit from those provisions

13. Consequences of split regime • Hard to predict • Non-controversial provisions might be implemented even by non-signatories • USA did not sign the predecessors of the ITRs until 1973 • But the situation today is not the same as prior to 1973 • Worst case: non-harmonized practices lead to fragmentation • Danger if there is no uniform international framework to facilitate global interconnection and interoperability?

14. Ways forward to avoid a split • Most countries agree to be bound by the ITRs • Most countries do not agree to be bound by the ITRs • Most countries implement the ITRs in a non-controversial manner • Recognize that Preamble does not prevent suspension of services or otherwise modify existing rights and obligations • Recognize that there is no extension of the covered entities or of the scope • Recognize that the security and spam provisions do not relate to content • Recognize that Resolution 3 does not change the mandate of the ITU

15. WCIT-12 key numbers • 1,275 proposals from Member States • over 1,400 delegates from 151 Member States • 150 hours of official conference meetings onsite • Final acts signed by 89 countries out of the 144 present and having authority to sign

16. WCIT-12: ITU as a global convener • 151 countries in Dubai • strong participation in negotiations • richer, more representative and more powerful treaty • Discussions about Internet governance revealed the full complexity of this issue • Strong divergence on some topics • During the preparatory process • And in Dubai. • Government and market forces were represented at WCIT-12 • This resulted in an extremely valuable exchange of views and ideas • Compromise outcome: • Signed by 89 governments out of 144 accredited to sign • More are expected to join

17. WCIT-12 procedure • The ITU Secretariat’s role is to bring the world together and facilitate their negotiations with an efficient support team to help delegates reach agreement. • Do not conflate the Secretariat with the ITU: the ITU is its membership • ITU hosted many preparatory meetings, and translated over 450 contributions in 6 UN languages to facilitate negotiations • WCIT-12 was the most open and transparent treaty making conference ever held • Decision-making sessions were publicly webcast • There were social media and interactive briefings • Stakeholders from government, private sector andcivil society were all represented in the negotiations • Ultimately, it is ITU membership who negotiate, and the treaty is their agreement

18. Role of Member States (1/2) • Tunis Agenda (WSIS) paragraph 55: • “Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues.” • Resolution 102: • the role of governments includes providing a clear, consistent and predictable legal framework, in order to promote a favourable environment in which global ICT networks are interoperable with Internet networks and widely accessible to all citizens without any discrimination and to ensure adequate protection of public interests in the management of Internet resources, including domain names and addresses

19. Role of Member States (2/2) • The ITRs are international law • National laws are agreed by parliaments • stakeholders do not participate in the formal decision-making process in parliament • nor they are consulted prior to the decisions being made • Similarly, in treaty-making conferences, Member States make decisions, after national consultations • stakeholders do not participate in the formal decision-making process at the treaty conference

20. WCIT multi-stakeholder involvement • In the WCIT preparatory process • open to all ITU members • ISOC submitted proposals • WCIT public comment web site • few comments received • Through national consultations • could be open to the public • documents could be made available to the public • As members of national delegations • ITU places no restrictions on who can be included • If ITU members, can attend WCIT as observers • could ask to speak, but none did

21. Some key points (1/2) • WCIT-12 made one thing extremely clear: every single country represented understands the critical importance of ICTs to its future socio-economic development and future prospects for growth and prosperity. This was not the case in 1988, and represents a major paradigm shift in the political and economic agenda • WCIT-12 showed that there is no single world view, but several different emerging views which need to be taken into account, especially in light of convergence • In particular, there were sharp disagreements regarding whether the ITRs should apply to “the Internet”, with significant misinformation being published • The fact that some countries have not yet signed does not mean that the treaty is not useful to the countries who have signed • Given the complexity of potentially managing international relations across several treaties (1988 / 2012 / bilateral), more countries may eventually recognize the value of accession to the new ITRs.

22. Some key points (2/2) • WCIT-12 represents the start of global dialogue: ITU members will continue to work to find consensus solutions • The 2012 ITRs have been negotiated with one over-riding goal: to bring the benefits of communications to the 700 million people who still don’t have mobile phone network coverage and even more importantly to the 4.5 billion people who are not yet online • With over 90% of the world’s people now within reach of mobile phones, the challenge today is to bring Internet access to the two-thirds of the world’s population which is still offline • In order to maintain a single, interoperable and open Internet, some of the challenges that were raised by the developing countries and other countries have to be addressed, in particular concerns regarding financial matters and security issues • It is important to work together to bring connectivity to all the world’s people

23. WCIT-12 Key Achievements (1/3) • The treaty contains many major revisions and new areas, as important improvements on the 1988 treaty. Member States: • put special emphasis on freedom of access to the international telecommunication services • affirmed their commitment to implement the treaty in a manner that respects and upholds their human rights obligations • Agreed that the ITRs do not address the content-related aspects of telecommunications • Agreed that, consistent with the Constitution, the ITRs apply to “authorized operating agencies”: operating agencies, authorized or recognized by a Member State, to establish, operate and engage in international telecommunications services to the public

24. WCIT-12 Key Achievements (2/3) The revised ITRs include provisions for: • improving transparency in mobile roaming charges • promoting investments and competition • improving energy efficiency and cutting e-waste • ensuring the security and robustness of international telecommunication networks • combating unsolicited bulk electronic communications (spam) • preventing misuse of numbering resources • Calling Line Identification • bringing benefit of ICTs to 650 million people with disability • improving access to emergency services

25. WCIT-12 Key Achievements (3/3) 5 new Resolutions • improving broadband connectivity to landlocked developing countries and small island states • Globally harmonized emergency number • Foster greater internet growth • Periodic review of the ITRs • International traffic termination and exchange

26. WCIT-12: proposals left out (1/2) • Cost-oriented charges for mobile roaming and wholesale prices • General price transparency • Fair compensation for traffic carried/terminated • Restrictions on taxation • Restrictions on network neutrality • Routing transparency But it was agreed to study further most of these matters

27. WCIT-12: proposals left out (2/2) • Extension of scope to Operating Agencies (OAs) • Restriction of scope to Recognized Operating Agencies (ROAs) • Extension to ICT • Provisions on data protection, privacy, cybersecurity, cybercrime • Even though these are in the mandate of the ITU pursuant to Council Resolution 1305 • Making ITU Recommendations mandatory • Alternative dispute resolution on international connectivity matters including Internet • Provisions regarding Internet • Purely liberalized approach to broadband deployment

28. Reasons given for not signing • Third paragraph of the preamble • ITRs apply to “authorized operating agencies” • Expansion of scope of ITRs • Article 5A • Security and robustness of networks • Article 5B • Unsolicited bulk electronic communications • Resolution 3 • To foster an enabling environmentfor the greater growthoftheInternet

29. Paragraph 3 of the Preamble These Regulations recognize the right of access of Member States to international telecommunication services. • Is subject to Article 35 of the Constitution: • Any Member State can cut off communications with any other Member State, for any reason whatsoever, provided it informs the Secretary-General • So no new rights or obligations are created • It recognizes the rights of citizens, not just of governments • Not really “unprecedented”

30. Purpose and scope • Unchanged with respect to 1988 • Application to AOA was decided in 1998, by a change in the ITU Constitution (no. 38, article 6) • ITRs only apply to services offered to the public • not to purely private networks (the term “public” is specifically present in the ITRs) • OAs (and AOAs) are entities that operate an installation intended for an international telecommunication service • so local ISPs would presumably not be included • Nobody ever complained about the entities covered since 1998 • There is no extension of the scope of the ITRs

31. Article 6 [5A] (1/2)Security and robustness of networks • Member States shall individually and collectively endeavour to ensure the security androbustness of international telecommunication networks in order to achieve effective use thereofand avoidance of technical harm thereto, as well as the harmonious development of internationaltelecommunication services offered to the public.

32. Article 6 [5A] (2/2) • Is subject to: • human rights obligations • article 1: “These Regulations do not address the content-related aspects of telecommunications.” • Cannot be seen as addressing content • It is about measures that do not related to content (see Recommendations ITU-T E.408 and X.805.) • Should lead to cooperation to implement best practices that are already prevalent • should make it less likely that some country would (perhaps unwittingly) adopt inappropriate security legislation

33. Article 7 [5B] (1/2) • Member States should endeavour to take necessary measures to prevent thepropagation of unsolicited bulk electronic communications and minimize its impact oninternational telecommunication services. • Member States are encouraged to cooperate in that sense.

34. Article 7 [5B] (2/2) • Is subject to: • human rights obligations • article 1: “These Regulations do not address the content-related aspects of telecommunications.” • Cannot be seen as addressing content • It is about measures that do not related to content (e.g. address filtering; see Recommendations ITU-T X.1231 and X.1240) • Should lead to cooperation to implement best practices that are already prevalent • should make it less likely that some country would (perhaps unwittingly) adopt inappropriate spam legislation

35. Resolution 3 (1/2) • resolves to invite Member States • to elaborate on their respective positions on international Internet-related technical,development and public-policy issues within the mandate of ITU at various ITU forums including,inter alia, the World Telecommunication/ICT Policy Forum, the Broadband Commission for DigitalDevelopment and ITU study groups; • to engage with all their stakeholders in this regard, • instructs the Secretary-General • to continue to take the necessary steps for ITU to play an active and constructive rolein the development of broadband and the multistakeholder model of the Internet as expressed in§ 35 of the Tunis Agenda; • to support the participation of MemberStates and all other stakeholders,asapplicable, in the activities of ITUin this regard.

36. Resolution 3 (2/2) • No expansion of ITU’s role and scope • Promotes multi-stakeholder consultations • Cannot modify or override WSIS outcomes

37. Specific provisions (1/7) • 3.5 Member States shall endeavour to ensure that internationaltelecommunication numbering resources specified in ITU-T Recommendations are used only bythe assignees and only for the purposes for which they were assigned; and that unassignedresources are not used.

38. Specific provisions (2/7) • 3.6 Member States shall endeavour to ensure that international calling lineidentification (CLI) information is provided taking into account the relevant ITU-TRecommendations.

39. Specific Provisions (3/7) • 3.7 Member States should create an enabling environment for the implementation of regional telecommunication traffic exchange points, with a view to improving quality, increasing the connectivity and resilience of networks, fostering competition and reducing the costs of international telecommunication interconnections.

40. Specific Provisions (4/7) • 4.4 Member States shall foster measures to ensure that authorized operating agencies provide free-of-charge, transparent, up-to-date and accurate information to end users on international telecommunication services, including international roaming prices and the associated relevant conditions, in a timely manner.

41. Specific Provisions (5/7) • 4.5 Member States shall foster measures to ensure that telecommunication services in international roaming of satisfactory quality are provided to visiting users. • 4.6 Member States should foster cooperation among authorized operating agencies in order to avoid and mitigate inadvertent roaming charges in border zones.

42. Specific Provisions (6/7) • 4.7 Member States shall endeavour to promote competition in the provision of international roaming services and are encouraged to develop policies that foster competitive roaming prices for the benefit of end users.

43. Specific provisions (7/7) • 5.4 Member States should encourage authorized operating agencies to inform allusers, including roaming users, in good time and free of charge, of the number to be used for callsto the emergency services.

44. Article 8 [6] (1/2) • Significantly restructured. Now starts • 8.1 Subject to applicable national law, the terms and conditions for international telecommunication service arrangements may be established through commercial agreements or through accounting-rate principles established pursuant to national regulation. • 8.1.1 Member States shall endeavour to encourage investments in international telecommunication networks and promote competitive wholesale pricing for traffic carried on such telecommunication networks.

45. Article 8 [6] (2/2) • Then continues with provisions similar to those of the old article 6, with a chapeau stating: • The following provisions may apply where the terms and conditions of international telecommunication service arrangements are established through accounting-rate principles, established pursuant to national regulation. These provisions do not apply to arrangements established through commercial agreements. • Appendix 1 was simplified and the deadlines were reduced to 50 days, consistent with Recommendation ITU-T D.195.

46. New Articles9 [8A]: Energy efficiency/e-waste10 [8B]: Accessibility • 9 Member States are encouraged to adopt energy-efficiency and e-waste bestpractices taking into account the relevant ITU-T Recommendations. • 10 Member States should promote access for persons with disabilities tointernational telecommunication services, taking into account the relevant ITU-TRecommendations.

47. New Resolution on International telecommunication service traffic termination and exchange (1/6) • Considering • that the transition from dedicated phone and data networks to converged IP-based networks raises regulatory, technical and economic issues which need to be taken into consideration; • that many Member States have expressed a need for the initiation and implementation of commercial agreements between authorized operating agencies and service providers of international services, with the objective of empowering all the participants in the new value chain,

48. New Resolution on International telecommunication service traffic termination and exchange (2/6) • Noting • that some Member States are observing a deterioration in the quality of international services and voice traffic; • that Study Group 3 of the ITU Telecommunication Standardization Sector (ITU-T) is mandated to study the development of Recommendations, resolutions and guidelines related to these issues;

49. New Resolution on International telecommunication service traffic termination and exchange (3/6) • that there is a need for broader understanding of alternative dispute resolution mechanisms arising out of commercial arrangements; • that some Member States have concerns for the prevention and mitigation of fraud in international telecommunications,

50. New Resolution on International telecommunication service traffic termination and exchange (4/6) • Resolves to invite concerned Members States to collaborate so that: • each party in a negotiation or agreement related to or arising out of international connectivity matters can seek the support of relevant authorities of the other party’s State in alternative dispute resolution; • their regulatory frameworks promote the establishment of commercial agreements between authorized operating agencies and the providers of international services in alignment with principles of fair competitionand innovation,