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The ITU and the Internet’s Titanic Moment

By Patrick S. Ryan

Try this: Mention the International Telecommunication Union (ITU) to a few casual Internet users, Netizens, or even the most senior-level computer programmers and technology experts and gauge their reaction. Few are likely to know what you’re talking about. Most will likely think you’re referring to either a telecommunications labor union or some kind of international working group. Only the most informed will know that the ITU is one of the most influential (and in fact the oldest) technology-based standard-setting and treaty-making institutions in the world. While it’s now a subsidiary of the United Nations (UN), the ITU predated the UN by more than 75 years, having been founded in 1865 to help coordinate the international standardization of telegraph signals. One of the most memorable forays that the ITU made into the international legal system happened 100 years ago when the seeds were planted for the ITU to take on the role of intergovernmental coordination on spectrum matters in the wake of the Titanic disaster. Today, the ITU’s primary mandate is for all intents and purposes limited to telecommunications; however, the ITU is currently working to gain relevancy in the areas of Internet security, privacy, and it is setting up a shop to compete with the open standardization bodies that built the Internet.

While the ITU isn’t exactly a household name, it nonetheless may end up making critical—and potentially harmful—decisions that have a profound effect on Internet users around the globe. The ITU is hosting a treaty conference in 2012, and together with policy consultations in 2013, these events may significantly change how the Internet is governed. Among other things, the ITU is persuing a mandate “to increase the role of ITU in Internet governance so as to ensure maximum benefits to the global community.” While this may sound innocuous, in the words of a colleague, current regulatory proposals from the ITU make the Stop Online Piracy Act (SOPA)—which threatened to grant new censorship and blocking powers to the U.S. government—“look like the equivalent of a bad hair day.” More to the point, Federal Communications Commissioner Robert McDowell recently described the dangers of ITU involvement in Internet regulation, noting that a “top-down, centralized, international regulatory overlay is antithetical to the architecture of the Net.” Netizens may—and perhaps should—be concerned about the increased role the ITU may play in the international regulation of the Internet, and the influence of the Internet community as a whole may even slow the speed with which the ITU assumes such a role. Regardless, if history is any predictor, it’s virtually inevitable that the ITU will be a lead player in the regulatory infrastructure of the Internet of the future.

With these thoughts in mind, it may make sense to examine the roots of the ITU more closely. In addition, it may be prudent to examine the challenges inherent in the manner in which the organization is structured and in the regulatory analysis and implementation procedures it follows. As we will see, the ITU’s role in the regulatory discussion going forward might best serve Internet users worldwide if that role is narrowly defined and limited to discrete areas of international standardization. Even then, we will argue that transparency and participation must be drastically improved, and that a system of checks-and-balances must be put in place to keep the ITU from flexing its muscles and bullying non-state actors into compliance—or worse, creating a splintered, balkanized Internet where some nations opt in to the ITU infrastructure while others opt out.

This article will first look at the events that took place 100 years ago at the time of the sinking of the Titanic as an illustration of how the ITU became relevant in the area of spectrum management. We will then turn to other areas of engagement of the ITU as it seeks entrée into the world of security, privacy, and standardization. Finally, in spite of its recent overtures to openness and participation, we’ll conclude that the ITU is not fit to enter into the world of Internet governance and regulation, because the Internet’s open, freely developed market. The ITU’s experience, on the other hand, is steeped in 150 years of closed, non-transparent state-run systems.

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July 16, 2012 Cite: 2012 Stan. Tech. L. Rev. 8


3 Responses

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  1. Paul Conneally, Head of Communications and Partnership Promotion Division, ITU says

    Speaking as a representative of the ITU Secretariat, and being an admirer of the Stanford Technology Law Review, I am very disappointed that the journal has published an article with so many blatantly incorrect statements about ITU and the process leading to the World Conference on International Telecommunications (WCIT-12). The author says he has spent some time in the ITU library, but clearly he did not gain a good understanding of the organization. We would have been pleased to help him research his article if he had asked for assistance and, should he wish to visit us again, we would be willing to clear up some of his misunderstandings. Meanwhile, although unfortunately I do not have time to write a detailed rebuttal of the whole article, I would like to highlight some of the most disturbing errors:

    ITU and the Internet

    The ITU membership (193 governments and over 700 private-sector entities, civil society and academia) has made it perfectly clear that there are no plans or intentions for the ITU to ” take over the Internet .” Just one example of this basic misunderstanding appears in paragraph 30, where the author wrongly claims that ITU plans to exercise direct control over the expansion of broadband networks in developing countries.

    Another statement without any basis is that “a system of checks and balances must be put in place to keep the ITU from flexing its muscles and bullying non-state actors into compliance – or worse, creating a splintered, balkanized Internet where some nations opt in to the ITU infrastructure while others opt out.” ITU does not have to flex any “muscles,” nor does it need to “bully non-state actors” – only Member States can enact laws, as they deem fit. Neither does ITU operate any type of “infrastructure.” And if anything leads to balkanization of the Internet, it will certainly not be ITU.

    A number of selective citations are quoted and give a false impression. For instance, only part of a Resolution from ITU’s Plenipotentiary Conference in 2010 is quoted, and even that part is misinterpreted. The Resolution clearly states that ITU should “explore ways and means for greater collaboration and coordination between ITU and relevant organizations involved in the development of IP-based networks and the future Internet, through cooperation agreements, as appropriate, in order to increase the role of ITU in Internet governance so as to ensure maximum benefits to the global community .” (emphasis added). The idea is to bring many partners together, and to have ITU’s membership participate alongside them with the aim of benefiting everyone. And remember, when referring to “the role of ITU” it means the entire membership, operating under clearly defined democratic rules.

    Participation and transparency

    Although it is true that the ITU membership does not currently include the author’s employer, Google, it is free to join at any time. It would certainly be welcome. In fact, ITU’s current Secretary-General visited Google’s headquarters during his first year in office in January 2007 and the company has had a constant invitation to join ITU ever since. Membership of ITU is open not only to all governments, but also to any private company involved in work relevant to ITU, and to civil society and non-profit organizations. The membership comprises more than 700 private companies many of which are from the US.

    The entire gamut of stakeholder groups is free to join ITU. It is therefore untrue to claim that ITU is not multistakeholder. Not only has it been so long before this term was even coined, it was the lead organizer of perhaps the most multistakeholder of all global gatherings in this domain: the World Summit on the Information Society. It is the private-sector members of ITU who drive the technical work and agree, by consensus, on ITU technical standards. All ITU work is bottom-up, driven by inputs from its membership. All ITU documents are available to all members, and many national governments make them available to their citizens. In addition, all ITU Recommendations (that is, ITU-developed standards) are freely available to the public online, and an agreement was concluded with Google some time ago to make them searchable.

    Contrary to what the article implies, ITU’s experience is steeped in 150 years of consultations and consensus-based decision-making involving a multistakeholder approach and the cooperation of the public and private sectors.

    ITU’s mandate

    ITU’s long-standing definition of telecommunications is “any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.” I am sure your readers would conclude that this is all-encompassing. ITU technical standards (such as for data compression, broadband, fiber-optic transmission networks, cable modems, cybersecurity, etc.) facilitate the flow of Internet traffic. ITU also closely cooperates with over 40 other standardization bodies, including ISO, IEC, IEEE and IETF, in order to ensure the continued growth of the Internet. In fact it was the current version of the International Telecommunication Regulations (ITRs), approved in 1988, that permitted the expansion of the Internet.

    Titanic fallacy

    The article says ITU “seeks entrée into the world of security, privacy, and standardization.” In fact, ITU has long been part of that world. Following its foundation in 1865, its first action was to establish standards for telegraph signals and services. ITU’s work on radio spectrum goes back for more than a century. However, the author has shown his limited knowledge of ITU by claiming a relationship between a completely different type of treaty (the Radio Regulations) and the ITRs.

    Furthermore, the article describes ITU’s management of satellite orbital locations and associated spectrum resources on the basis of quotes dating back to 2001 and 2003. The problems reported have long been resolved to the satisfaction of all the membership, including satellite operators.

    Opinion v. fact

    ITU is actively encouraging participation in its work by all interested parties and its modus operandi is cooperation and collaboration. What makes this article particularly unacceptable is that it purports to be an objective analysis, but in fact presents a particular jaundiced point of view based on poor understanding, selective citations, misquotes, and misinterpreted “evidence.” This is especially problematic since the reputation of the Stanford Technology Law Review might give the article the spurious authority that it clearly does not deserve.

    I have written this commentary as I believe it is important for your readers to be aware that the article’s statements and conclusions are unsubstantiated and false.

Continuing the Discussion

  1. Domain Industry » The ITU and the Internet’s Titanic Moment by Patrick S. Ryan linked to this post on July 22, 2012

    [...] To download this essay in full by Patrick Ryan in a Stanford Technology Law Review, go to:stlr.stanford.edu/2012/07/the-itu-and-the-internets-titanic-moment/ssrn.com/abstract=2110509 [...]

  2. The ITU and the Internet’s Titanic Moment by Patrick S. Ryan | Domain Dealer linked to this post on July 22, 2012

    [...] We’ll use this as an illustration of how the ITU first became relevant in the area of spectrum management. We will then turn to other areas of engagement of the ITU as it seeks entrée into the world of security, privacy, and standardization. Finally, in spite of its recent overtures to openness and participation, we’ll conclude that the ITU is not fit to enter into the world of Internet governance and regulation, because the Internet’s open, freely developed market. The ITU’s experience, on the other hand, is steeped in 150 years of closed, non-transparent state-run systems. To download this article in full by Patrick Ryan in the Stanford Technology Law Review, go to:stlr.stanford.edu/2012/07/the-itu-and-the-internets-titanic-moment/ssrn.com/abstract=2110509 [...]