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.