This third part (see the first part here  and the second here ), concludes the analysis  [es] by the Vía Libre Foundation  after the the World Conference on International Telecommunications  (WCIT) which took place in Dubai (United Arab Emirates) between December 3 and 14, 2012.
After the WCIT and Beyond (third part)
By Enrique A. Chaparro
VIII. The new ITR
The possibility of consensus fell through, the new ITR was passed with the support of most of the Latin American countries (except for those that have Fair Trade Agreements with the U.S.), thereby breaking the informal CITEL (1) agreement. A number of local media notoriously at odds with the government (Clarín, La Nación, La Voz del Interior) took advantage of the opportunity to shamelessly misinform, showing (as if more evidence were needed) their ignorance in these matters.
Thus, we have a brand new ITU, which will take effect in 2015. Since it is an international treaty, it must be approved in each case according to the legal mechanisms of each country. Many signers (and those who didn’t sign), including Argentina, created exceptions, as is usually the practice. In the not too distant future, the Executive branch will send it to Congress for approval. The final acts of WCIT 2012 are available on the ITU website.
Now, after all the hoopla created, what can we say about the ITR?
In general terms, with respect to the issues we’re interested in, the new ITR is better than the 1988 version. Though the improvements are purely declaratory, they recognize some important issues:
It incorporates the issue of human rights (Preamble);
It expressly excludes the regulation of the issue of content (Art. 1.1);
It incorporates a new article (8A) urging states to adopt best practices for energy efficiency and electronic waste.
It includes a new article (8B) promoting access to handicapped people.
It makes an attempt (weak, restricted and short range) to move in the direction of universal access by declaring the right of states to access international telecommunications services (Preamble).
The result of the process has been generally satisfactory, in that it doesn’t promote the proposals that could potentially mean a danger (as we saw above, very amplified by an intense publicity campaign).
The treaty expressly establishes that the references to ITU-T Recommendations in the text are not mandatory;
The definitions of “telecommunications” and “international telecommunications” did not change, and the new term “ICT” was not incorporated.
The treaty does not make any mention, express or implied, to the Internet. In any case, the ambiguity of scope remains the same as it was in 1988.
None of the regulatory proposals regarding “cybersecurity” were incorporated.
There was no trace of ETNO’s proposals about “sender pays” or quality of differentiated services.
Provisions for numeration are limited to references about numeration resources specified in the ITU-T recommendations, and do not extend to nomenclature, numeration or identification beyond that.
There are some potentially problematic issues, though their seriousness has been seriously exaggerated by some sources:
The incorporation of article 5A regarding network security and robustness. The wording (2) is too general, which allows multiple interpretations. But the worry expressed is legitimate, and the safeguards built into the treaty – see item 1 above – appear to be sufficient to ensure that there will be no legal basis for a repressive interpretation. The practical reality, as noted is another matter; and even without this clause, repressive regimes will continue to censor and monitor in the name of “security”.
The incorporation of article 5B regarding unsolicited bulk electronic communications. The wording is careful to not make any mention of the Internet. Given the safeguards imposed in the Preamble and in Article 1.1, its scope is limited: at best, it authorizes anti-spam mechanisms that do not work on content (and yes, it is possible to establish this type of mechanism) (4). Moreover, in many countries there are laws that prevent access to content without proper judicial safeguards, which further reduces the framework of possibility for this rule to work (5). Again, reality is another thing.
The approval of a resolution (PLEN/3), “Fostering an Enabling Environment for the Internet.” This resolution, which is not part of the treaty and as such is not binding, can be seen as a minimal concession to the members who pushed for a bigger part by the states, via the ITU, in management of the Internet. The ability this will have in shaping the future of the Internet can be considered negligible: all it says is that a majority of members states of the ITU want to keep discussing the issues of “governance” of the Internet in the ITU (6). Calling it a “Trojan horse” designed to empower Russia or China is at best–and assuming good faith–an exaggeration.
As an indirect result, this WCIT yielded another small positive result: due mostly to the pressure of social organizations, the transparency of the process, which still remains obscure, improved significantly.
IX. In the meantime…
While many organizations, many of them aligned with our positions, concentrated on this process, and invested an enormous amount of effort and resources, there were other actions much less publicized, with impact limited to academic circles that follow in detail the “governance” of the Internet and which constitute attacks on fundamental freedoms.
The GAC (Governmental Advisory Committee) of ICANN and its attacks on freedom of expression: the GAC is one of the groups that forms a part of the complex web of ICANN (7). The policy of assigning new top-level domains (TLD) allows for “early warnings” about the applications for new TLDs; this equivalent of veto power in the hands of the GAC has been used to block names that some states, led by the U.S., do not like, outside of any procedures or any adherence to international law. Thus, recently there have been a large number of early warnings against proposed TLDs. The majority of these objections don’t come from Russia or China, but from Australia, which with the argument of dealing with terms with “excessively negative connotations” and that they “lack sufficient mechanisms to address the potential for a high level of defensive registrations” (8), it has rejected the TLDs of .sucks, .gripe, .fail, .wtf and others. The argument of defensive registration is ridiculous, given that it doesn’t appear the $20 registration cost is going to have much affect on the costs for a corporation with enough minions to protect itself from a .sucks domain. But the other argument is plainly an attack on freedom of expression: an Internet user can write here “Australia sucks!”, he can publish it in a book; and can even try to register australiasucks.com….but he will not be able to register australiasucks. The basis in law? None, great, thank you.
At the end of November, the board of ICANN conceded to the International Olympic Committee, the Red Cross, and another set of intergovernmental organizations extraordinary powers for the registering of names under the new TLD. An arbitrary decision of the board, not based on any policy or process, undoing with one hand its previous ruling by the other hand, dismissing a process of ongoing policy development, and reversing a decision of ICANN’s own work group in charge of domain name policies, the GNSO Council.
Another concession to the trademark empire, but also an example of ICANN’s failure in becoming a legitimate institution for the generation of policies, which in practice belies the alleged “bottom up process” and shows that in reality what weighs in decision-making is the lobbying capacity of certain groups.
Another example of ICANN dynamiting their own processes and bowing to pressure from powerful groups: after heavy lobbying, the President of ICANN, Fadi Chehadi, caved in to demands by a trademark interest group to call a closed meeting in Los Angeles, which also, because of short notice about the event, had very uneven representation deciding on the requests of the lobbyists. The result, however, was not as bad as expected, but the whole process was another nail in the coffin of the alleged “transparent and democratic management” of ICANN.
How many cries of alarm, certainly legitimate, from well-meaning sectors would have brought to light facts like these three, if they had been carried out by an agency in the United Nations system?
X. Lessons learned and strategies for the future
There are helpful lessons amid this turmoil. The first is that even social organizations above suspicion can be led (for reasons often attributed to naivety) to positions that have nothing to do with their principles, which lead to being unable to differentiate them from positions taken by certain governments and corporations.
The second is that it is essential to take a deeper political reading of what is happening in international forums. This time, looking from the point of view of organizations that advocate the observance of human rights in all areas, there was no major damage in terms of consequences, nor loss of credibility for social organizations, a good number of which unintentionally played the game for a long time that one of the disputed sectors tried to play. A combination of smell, good instincts, reading habits, disproportionate media reactions and various trolls, meant that at the end of the process some organizations were able to discern that the outcome of the WCIT was far from serious enough to merit the theatrical bang by the U.S. and its allies.
In fact, some organizations have reached less alarmist conclusions that are not consistent with the analysis presented here. “Access” makes its diagnosis of the “the good and the ugly” of WCIT in terms we do not share, and is a good example of such a position (10).
Regarding the ITR itself, and at the local level, Congress must deal with it at some point. At best, it would be ideal to deposit an interpretive reserve letter for articles 5A and 5B, that says something like “Argentina understands, in line with the general principles set forth in the Preamble and Article 1.1 of the ITR, that in no case does a member state have the right to interpret Articles 5A and 5B as authorization to intervene in telecommunications, impose any restriction on freedom of expression, or act upon telecommunication content without law and specific order of a competent judge.”
This safeguard is much more important in laying the groundwork for Argentina’s position with respect to fundamental values (and both the government party as well as the opposition should be in agreement on this) than for any practical effect it might have. In all likelihood, these issues of the ITR in practice will be harmless (and the reserve will not in any way alter the actions of states which violate freedom of expression and privacy).
Moreover, we must continue to insist on the need for greater transparency in the ITU’s processes in general, and before our government in the need to integrate societal representation in processes like this.
The enormous public relations stunts surrounding the WCIT 2012 process which has raised dust for some time, has managed to set up something that Milton Mueller aptly called “ITUfobia”, and has served as an effective deterrent to prevent system stakeholders, particularly social organizations dealing with issues of freedom and fairness on the Internet, from discussing the real issue: how to build new “governance” institutions that are minimalist, open and effective, and legal principles applicable worldwide that regulate and limit the power of states and private sector actors to abuse users. This is Vía Libre’s commitment in all areas in which we work.
2. “41B. Member States shall individually and collectively endeavour to ensure the security and robustness of international telecommunication networks in order to achieve effective use thereof and avoidance of technical harm thereto, as well as the harmonious development of international telecommunication services offered to the public.”
3. “41C. Member States should endeavor to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services. Member States are encouraged to cooperate in this sense.”
4. It is likely that users would appreciate it if cell phone operators stopped sending unsolicited messages unrelated to their service, and if call centers stopped insisting on trying to sell you anything over the phone.
5. In Argentina, Article 5 of Law 25520. [INT]
6. The resolution is brief and does not say much. It can be seen in its entirety on the ITU website. The main part says:
The World Conference of International Telecommunications (Dubai, 2012) (…) resolves:
to invite Member States
1. 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 Digital Development and ITU study groups;
2. to engage with all their stakeholders in this regard, instructs the Secretary-General1. to continue to take the necessary steps for ITU to play an active and constructive role in the development of broadband and the multistakeholder model of the Internet as expressed in § 35 of the Tunis Agenda;
2. to support the participation of Member States and all other stakeholders, as applicable, in the activities of ITU in this regard.7. 108 countries of the UN are represented in the GAC, three of these generally not known (Cook Island, Niue, and Taiwan), one absolute theocracy (the Vatican), three administrative subdivisions of other states (Monserrat, Hong Kong and Bermuda), the European Commission and the African Union Commission.
8. “Defensive registration” is to preemptively register a domain name that could represent negative publicity for a company, but cannot be disputed based on the Uniform Dispute Resolution Policy (extra regulatory framework imposed by ICANN), for example cocacolasucks.com.
9. GNSO: Generic Names Supporting Organization, the ICANN group in charge of policies on generic domain names.
10. Accessnow.org, WCIT WATCH: Analysis of the new ITRs, part 1  [es] y part 2  [es].