WCIT-12: An Opinionated Primer and Hysteria-Debunker

Jack Goldsmith
Friday, November 30, 2012, 6:58 AM
A significant amount of hysteria has greeted the World Conference on International Telecommunications (“WCIT-12”), which will be held from next Monday until December 14 in Dubai.  A casual reader of the news might wonder whether, as a Stanford Law panel asked a few days ago, WCIT-12 portends “the end of the Internet.”  Vint Cerf, the “father” of the Internet, 

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A significant amount of hysteria has greeted the World Conference on International Telecommunications (“WCIT-12”), which will be held from next Monday until December 14 in Dubai.  A casual reader of the news might wonder whether, as a Stanford Law panel asked a few days ago, WCIT-12 portends “the end of the Internet.”  Vint Cerf, the “father” of the Internet, claimed in the NYT that WCIT-12 heralds “a fundamental shift in how the Internet is governed.”  The European Parliament warns that the International telecommunications Union (“ITU”), which is convening WCIT-12, “could become the ruling power over aspects of the internet.”  The State Department's top information policy official testified before Congress that WCIT-12 could “slow the pace of innovation, hamper global economic development and potentially lead to an era of unprecedented control over what people can say and do online.”  And these are relatively mild statements compared to others being made in less exalted places.
These and similar warnings are, for reasons I hope to explain below, largely bunk – though as I will also explain in the end, they may be influential bunk.  Yes, WCIT-12 matters, but less for what it will do than for what it represents.  The Internet it is not about to change, and the most likely outcome of WCIT-12 is that the treaty that is the topic of the conference will not be materially revised.  The proposals flying around WCIT-12 are nonetheless important for what they say about the agendas of the nations of the world as they fight for control over the Internet, within their borders and without.  In what follows I seek to explain these points.
1.         Background
WCIT-12 is a meeting called by the member states of the ITU.  The ITU is an international organization that dates to the nineteenth century, and that has been traditionally devoted to international coordination of telegraph, radio, and telephone systems.  In 1988, under the auspices of the ITU, nations negotiated a treaty called International Communications Regulations (“ITRs”).  The ITRs established a very general regulatory framework for “global interconnection and interoperability” for 1988-era telecommunications, i.e., primarily circuit switch telephony.  In 1988, the commercial Internet was in its infancy and was not the focus of the ITRs.  (However, Article 9 of the ITRs, which counsels the “avoidance of technical harm” in special private telecommunication arrangements, was apparently a reaction to the Morris worm, which was the event that first sparked cybersecurity concerns on Internet protocol networks.)
The world has changed a lot since 1988.  To make a long story short, traditional telephony via dedicated lines has been replaced by a variety of internet protocol services traveling over the same telecommunication pipes, including email, internet telephony, instant messaging, video services, and much more.  The declining relevance of traditional telephony has rendered the 1988 ITRs – and, potentially, the ITU – increasingly irrelevant.  The announced aim of WCIT-12 is to consider “revisions” to the ITRs to make them (and the ITU) more relevant to modern communications, mostly by making them relevant to the Internet.  At the same time, the rising importance of the Internet to national and international communications, economics, and security has led the nations of the world (and their companies and regulators) to want promote their visions on the Internet, both at home and abroad.  And there are many such visions, ranging from the relatively open vision of the United States to the relatively closed visions of nations like China and Russia, and much in between.
The fight for control of the Internet – over its governance, its content, its delivery mechanisms, its protocols, its economics, and its security – has been going on for a while now in various places.  (Tim Wu and I wrote about this fight for control up through 2006 in Who Controls The Internet?)  Usually these skirmishes between nations take place on discrete topics with discrete audiences and interests.  What is interesting and important about WCIT-12 is that it is a platform for discussion of all of these issues at once.  A body once tasked with the relatively uncontroversial role of promoting technical standards for international telephony and radio has become a forum for nations to discuss competing visions for speech, security, economics, and governance.
2.         ITRs: Amendment Process and Enforcement
At bottom, WCIT-12 is about possible amendments to the ITRs.  Any nation can propose such amendments, and many have.  Doing so is costless, and is an easy way to promote one’s vision of the Internet and find and try to influence similar-minded nations.  Before delving into the substance of the amendments, it is important to understand how hard it is to actually amend the ITRs, and the limited impact of any such amendments.
ITU Secretary-General Hamadoun Touré has maintained that WCIT-12 “will not vote on any issues” but rather will proceed by consensus.  If this is true, then no nation – and especially a nation as powerful as the United States – need worry about WCIT-12, for every nation will have a veto.  Technically, however, it appears that the ITRs can be amended in a WCIT by a vote of the majority of the state parties.  This is not the easiest thing to do, as there are many hurdles (including complicated voting hurdles) to reaching majority agreement on any issue.  If, however, the ITRs were amended in a way not to the liking of the United States, the USG could simply decline to give its consent and not be bound.  (Note further that this is not merely a presidential decision; the 1988 ITRs were submitted to the Senate as a treaty, and presumably any fundamental change to them would be as well.)  Moreover, as the USG’s conditional consent to the 1988 ITRs shows (see page 43-44 here), the USG could consent to the amended treaty with any exceptions and qualifications it cared to make.
As important as a nation’s ability formally to opt out of possible ITRs amendment is the fact that any such amendments would almost certainly – like the current ITRs – be very vague and subject to multiple interpretation and contestation.  In addition, the ITRs and the ITU have no enforcement or dispute resolution mechanism.  Rather, they are, as the ITU itself correctly says, “implemented by member states through national legislation, without surrendering any sovereign rights to ITU or any other UN body.”  The United States has interpreted (and disregarded) the current ITRs in opportunistic ways when its interests suited it and its power permitted it (see, e.g., this case), and any nation could do the same in the face of any ITRs amendment.
In short, the ITRs are hard to amend; if amended, ITRs are not self-enforcing; the ITU has no army; and the ITU cannot force any nation to do anything it doesn’t want to do. Regardless of what happens at WCIT-12, regulation of the various aspects of the Internet described above – from content-control to cybersecurity – will continue to be governed almost exclusively on the national level, within national borders, where nations can exercise coercion over people, firms, and physical assets.  WCIT-12 cannot materially affect anything that China wants to do within its borders to preserve its relatively closed Internet, or anything the United States wants to do within its borders to promote its relatively open Internet.
3.         How WCIT-12 Could Matter
All that said, it does not follow that WCIT-12 is irrelevant.  WCIT-12 is potentially relevant, and possibly important, for at least two reasons.
First, some national regulators that want to exert more control domestically could be empowered under domestic law or politics if their regulatory aims find support in the ITRs.  As a matter of sovereignty, neither amendment nor non-amendment of ITRs would prevent nations from regulating within their borders to promote their vision of the Internet.  But given the domestic and legal situation in some nations, the ITRs might enhance domestic regulatory power in those nations by providing political or legal cover or support for such regulation.  And any such domestic regulations could impact other nations to the extent that they enhanced (or weakened) the nation’s power to regulate content, pricing, surveillance, and security on the Internet.  To take a simple example, if amendments to ITRs empower a regulator in Mongolia to charge Google or Facebook for transmission of its services in Mongolia (which currently does not happen), the ITRs could indirectly harm U.S. economic and political interests.  Conversely, Google or Facebook might at the margins have more leverage in the domestic realm to push back against a Mongolian regulator if its position is not contradicted or in tension with the ITRs.
Second, WCIT-12 is an opportunity for like-minded nations to meet, exchange ideas and plans, and form blocks of influence that can be relevant to the scores of Internet regulatory disputes that are going on today in various fora.  Power over the network resides primarily at the national level, especially concerning what happens within national borders.  And disputes over the international elements of the network are still at bottom disputes by nations seeking to assert their interests on the international stage.  The United States promotes a relatively open vision for the network, and seeks to impose this vision on other nations; China and Russia have something of the opposite goals; and many nations are in-between in various ways and along various dimensions.  Nothing WCIT-12 does, one way or the other, will change the fact that control over the network rests in nations and reflects each nation’s perceived political and economic and security interests.  Even the important non-state actor organizations in this area – such as ICANN and the IETF – are a battleground for national interests.  WCIT-12 is important because it is a forum where nations can assert and test their visions of the network, can seek to influence others, and can band together in various ways to seek impose their vision on others.  But while WCIT-12 can be an important forum for inter-national exchange and influence, everything WCIT-12 and the ITRs and the ITU do is parasitic on the distribution of national power and interest and is limited by those considerations.
4.         Substantive Issues
Scores of proposals are being floated at WCIT-12 for the amendment of the ITRs.  I will briefly mention and comment on three important baskets of issues.
  • Authority Over the Internet.  Right now the ITRs cover and apply to traditional telephony, which as noted above is quickly losing its relevance.  Most observers  interpret the current ITRs to not apply to internet protocol services.  (This is so even though the ITRs define the “telecommunications” within its purview broadly to include “transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.”)  Many WCIT-12 proposals are designed to extend the ITRs explicitly to cover internet protocol services.  These proposals might or might not succeed (and as I just suggested, they might not add much to the extent that the ITU already has nominal authority over the Internet.)  But even if they do succeed, they are likely to be vague and hortatory and will accomplish no more than urging or authorizing nations and their firms to enter into certain agreements related to the Internet if they like.  For reasons stated above, they won’t affect what is really important, which is the bargaining power of nations for control over the network, and they thus aren’t likely to affect the currently thin international regulatory structure of the Internet.  In addition, Russia proposes that “Member States shall have equal rights to manage the Internet, including in regard to the allotment, assignment and reclamation of Internet numbering, naming, addressing and identification resources and to support for the operation and development of basic Internet infrastructure.”  This is widely seen as the latest in a series of attempts over the last 15 years to bring the powers and responsibilities of ICANN under the thumb of national governments.  The effort is no more likely to succeed at WCIT-12 than in the past – in part because the mechanics of wrenching naming and numbering authority from ICANN is complex, in part because ICANN formally considers governmental concerns (through the Governmental Advisory Committee), and in part because the nation that created and indirectly controls ICANN, the United States, wants to preserve relatively private authority over naming and numbering.
  • Cybersecurity.  There are a number of cybersecurity proposals for WCIT-12, and they are usefully summarized in this CDT report.  They basically come in two stripes: proposals that would enhance national control over cybersecurity, and proposals that would require international cooperation.  As for national control, Art. 34(2) of ITU Constitution, to which the ITRs must conform, already acknowledges national control over “private  telecommunications which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency.”  Nations already have sovereignty, recognized by the ITU, to impose their cybersecurity vision within their borders, and nothing that can happen in WCIT-12 will change that.  As for the international cooperation proposals, the nations of the world cannot not even agree on very basic cooperation requirements for 1990s-style cybercrimes.  The Cybercrime Convention is full of vague definitions and sovereignty exceptions, and even with these weaknesses, it has been ratified by only 37 nations.  Don’t expect anything more to emerge from WCIT-12 on the international cybersecurity front.
  • Pricing for Internet Services.  There is a complex and serious issue here but I don’t think much will happen on it at WCIT-12, or that it will matter if somehow the ITRs are amended in this context.  The basic issue, much simplified, is that the enormous revenues that nations and their telecoms used to derive from international telephony pricing structures diminished with the shift to cheaper Internet-based alternatives such as email, Internet telephony, instant messaging, and the like.  Under current contractual and other arrangements, telecoms and ISPs in one nation transmit internet packets from abroad (and pay for the bandwidth needed to transmit those packets) without collecting the type of revenues they used to collect for traditional telephony transmission.  Some nations at WCIT-12 propose to introduce language in the ITRs that would make acceptable the application of some version of telephony pricing model to the Internet in order to charge for carriage for Internet services in their countries.  Others propose to ensure that certain private sector contractual arrangements (such as quality of service guarantees) would be acceptable under the ITRs. These are debates about the financing of Internet communications, distribution of responsibilities and costs for such transmissions, and network neutrality.  I doubt anything will happen on this at WCIT-12 because the USG and its powerful content-providing firms are dead set against it.  But the important point is that it won’t matter much whatever WCIT-12 does.  Nations currently have the sovereign power to charge whatever they want, or to arrange transmission however they want, within their borders.  As Dwayne Winseck explains, some nations are already exercising this power.  The changes proposed at WCIT-12 could be imposed unilaterally by a nation, as long as (a big if) it has adequate bargaining power over foreign telecoms and foreign nations.  With the caveat noted in section 3 above, nothing that WCIT-12 does will change this bargaining power issue in a material way.  No doubt more nations will find ways to make internet services pay for carriage, but I think this will happen unilaterally, as a function of national interest and power, and not because the ITU or the ITRs blessed the ideas.
5.     Final Thoughts
The ITU has little intrinsic power.  In light of the decline of traditional telephony and the rise of internet services, WCIT-12 is more an ITU relevance-grab than an ITU power-grab.  As Milton Mueller cleverly says: “[I]t would be wrong, and a bit silly, to talk about the ITU “taking over” the Internet.  It is, rather, the Internet that is taking over the world of telecommunications, setting more and more of the terms and conditions under which the ITU and its operating entities function.”  Mueller is right that the ITU is playing catch up in light of the move away from traditional telephony.  In virtue of the headlines and consternation it has caused simply by virtue of its convening power, I think the ITU has largely succeeded in enhancing its relevance.  \
But while convening and agenda-setting are forms of power, the real power over the Internet lies with nations that are fighting for control over the Net in the ITU and other places.  As Tim Wu and I wrote at the end of Who Controls the Internet?:
“It’s not just that nations have the power to shape the Internet’s architecture in different ways.  It is that the United States, China, and Europe are using their coercive powers to establish different visions of what the Internet might be.  In so doing they will attract other nations to choose among models of control ranging from the United States’ relatively free and open model to China’s model of political control.  The result is the beginning of a technological version of the cold war, with each side pushing its own vision of the Internet’s future. . . . [W]e have tried to highlight the abiding significance of geography, of individuals whose attitudes and preferences differ sharply by geography, and most importantly of the national governments that use coercion to enforce national laws within their territories.  In the coming decades, these factors, and the consequent struggles between nations and their national network ideologies, will do much to determine how life on the bordered Internet is lived.  (Emphasis added.)
Nations are (and have been for a while been) building national networks in their images, and they will continue to do so.  WCIT-12 is the latest and perhaps greatest of many events in which nations seek to express and project these images globally.  It is doubtful that any particular one of these various images will become embodied in the ITRs (except to the extent that the status quo, which will likely be maintained, largely reflects the vision of the United States).  But regardless of what happens with the ITRs, nations will continue to try to impose their visions of the network domestically and will seek to impose their visions abroad to the extent they can.  This is why the anti-WCIT-12 hysteria is potentially influential, for it is designed to rally and organize the national forces that really matter, and to influence nations with a particular vision of Internet openness.

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Note: Of the many things I have read on WCIT-12, the most useful sources were the documents collected at www.wcitleaks.orgthis four-part series by Milton Mueller, and this four-part series by Dwayne Winseck.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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