1. WCIT-12 What happened? What next? ISOC Swiss Chapter WCIT Digest Bern, 8 March 2013 Richard Hill Independent consultant The views presented here are those of the author. They do not necessarily represent the views of the ITU Membership or of the ITU Secretariat or of ISOC

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. The goal is universal connectivity But consider Average Broadband Speeds (Mbps) 201120122013201420152016 Global 91216212734 Asia Pacific 81115212836 Latin America 45781012 North America 111418232937 West Europe 111418243242 C and E Europe 91215192429 Mid East & Africa 345678 Source: CISCO VNI, 2012

5. 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

6. 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 5A: Network security Article 5B: Combating spam Note: these are not the actual titles of the articles. Items in red are new compared to the 1988 version

7. What is in the 2012 ITRs (2/2) Article 6: Charging and accounting (commercial agreements, encourage investments, competitive wholesale pricing) Article 7: Suspension of services Article 8: Dissemination of information (Member States to communicate information to ITU) Article 8A: Energy efficiency, E-waste Article 8B: Accessibility Article 9: Special arrangements Article 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

8. WCIT-12 Resolutions 1.Special measures for landlocked developing countries 2.Globally harmonized national emergency number 3.Fostering an enabling environment for the greater growth of the Internet (controversial) 4.Periodic review of the ITRs 5.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.

9. 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

10. 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

11. 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

12. 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 environment for the greater growth of the Internet

13. Paragraph 3 of the Preamble 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” These Regulations recognize the right of access of Member States to international telecommunication services.

14. 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

15. Article 5A (1/2) Security and robustness of networks 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.

16. Article 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

17. Article 5B (1/2) Member States should endeavour 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 that sense.

18. Article 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

19. 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 Digital Development 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 role in the development of broadband and the multistakeholder model of the Internet as expressed in § 35 of the Tunis Agenda; – to support the participation of Member States and all other stakeholders, as applicable, in the activities of ITU in this regard.

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

21. Who can lead the way forward? Could Switzerland or ISOC-CH or ISOC – 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? And promote this message?

22. For more information http://www.itu.int/en/wcit- 12/Pages/default.aspx http://www.itu.int/en/wcit- 12/Pages/default.aspx http://www.itu.int/osg/wcit- 12/highlights/dec13-14.html http://www.itu.int/osg/wcit- 12/highlights/dec13-14.html http://www.scoop.it/t/wcit-12 http://www.cullen- international.com/ressource/4900/0/wcit-12- a-post-mortem-public-version.pdf http://www.cullen- international.com/ressource/4900/0/wcit-12- a-post-mortem-public-version.pdf

23. Backup slides

24. 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 other electromagnetic systems.” Many interpret this to include at least parts of “the Internet” – but this is not the case in all countries

25. 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

26. 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

27.  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 and civil society were all represented in the negotiations  Ultimately, it is ITU membership who negotiate, and the treaty is their agreement WCIT-12 procedure

28.  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 WCIT-12: ITU as a global convener

29. 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

30. 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

31. 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

32. 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

33. 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