Internet DRAFT - draft-hill-itr-non-accession-harmful
draft-hill-itr-non-accession-harmful
General Area R. Hill
Internet-Draft Hill & Associates
Intended status: Informational
Expires: June 17, 2014 December 17, 2013
"Non Accession to the ITRs Considered Harmful"
draft-hill-itr-non-accession-harmful-01.txt
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Copyright Notice
Copyright (c) 2013 IETF Trust and the persons identified as the
document authors. All rights reserved.
This document is based on a more detailed legal analysis [Hill-2013]
and the author wishes to acknowledge Oxford University Press for
their permission to publish this summarized version. The full
version is at http://ijlit.oxfordjournals.org/content/early/2013/06/
10/ijlit.eat008.full?ijkey=otqkCXVOAelJUPy&keytype=ref
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Abstract
One of the treaties administered by the International
Telecommunications Union is the International Telecommunications
Regulations (ITRs), whose purpose is to promote the development of
telecommunication services. The 1988 version of the ITRs opened the
way for privatisation, liberalization, and the growth of the Internet
and mobile networks. [Hill-2013a, p. 8] Given the subsequent
significant structural and technological changes, the ITU Member
States agreed to meet in 2012 to revise the ITRs. While consensus
was found on an overwhelming majority of the treaty text, some
provisions proved to be controversial, leading to a split in the
membership and sharp criticism of selected provisions.
As a result, some ITU Member States did not sign the treaty. This
document analyses that criticism and attempts to place it in context;
it identifies problems that may arise if states to not accede
to the treaty, and suggests a way forward, concluding that not
acceding may have undesirable results for the citizens of
non-signatory countries and for interoperability in general.
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Table of Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. The 2012 ITRs . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Criticism of the 2012 ITRs . . . . . . . . . . . . . . . . . 5
4. Analysis of the Criticism . . . . . . . . . . . . . . . . . . 5
4.1. Analysis of Criticism of Specific Provisions . . . . . . . 6
5. A Way Forward? . . . . . . . . . . . . . . . . . . . 7
6. IANA considerations . . . . . . . . . . . . . . . . . . . . . 8
7. Security considerations . . . . . . . . . . . . . . . . . . . 8
8. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . 8
9. Informative references . . . . . . . . . . . . . . . . . . . . 9
Authors' Addresses . . . . . . . . . . . . . . . . . . . . . . . . 10
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1. Introduction
The World Conference on International Telecommunications (WCIT-12)
was convened in December 2012 at the request of the ITU members in
order to revise the International Telecommunication Regulations
(ITRs), which had been agreed in 1988 and which opened the way for
the privatisation and liberalization that has since characterized the
telecommunications sector, paving the way for the growth of the
Internet. [WCIT-12], [ITRs-2012]
The purpose of the ITRs is to establish general principles which
relate to the provision and operation of international
telecommunication services offered to the public as well as to the
underlying international telecommunication transport means used to
provide such services. And this with a view to attaining the
purposes of the International Telecommunication Union in promoting
the development of telecommunication services and their most
efficient operation while harmonizing the development of facilities
for worldwide telecommunications.
The ITU Member States felt that it was necessary to revise the ITRs
in light of the significant changes structural and technological
changes that have taken place since 1988, in particular
privatisation, liberalization, and the growth of mobile and IP-based
networks. [Hill-2013a]
Unlike previous ITU conference, the ITU membership failed to reach
consensus, with the result that the treaty agreed at WCIT was not
signed by all the states present and having the right to sign: 89
signed and 55 did not. Countries that did not sign the ITR may
accede to them at any time.
A refusal by some countries to accede to the new ITRs could deprive
their citizens of certain benefits (such as transparency of roaming
prices, prevention of numbering misuse, transmission of calling party
identification, improved accessibility for people with disabilities,
and best practices regarding energy efficiency and e-waste).
Further, non-uniform implementation could create difficulties for
companies operating worldwide, if different regulatory regimes
emerge.
In the limit, refusal to implement the new ITRs might result in the
development of non-harmonized national practices which might lead to
an undesired fragmentation of the Internet.
These undesirable consequences can be avoided if all countries accede
to the ITRs with the understanding that the controversial clauses do
not in fact have the negative effects which have been attributed to
them by some commentators.
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2. The 2012 ITRs
Much of the 1988 ITRs were retained with some editorial revisions to
bring them up to date. In particular, the article on charging and
accounting was significantly streamlined and brought into alignment
with modern practices. In addition, new provisions were added to
prevent misuse of telephone numbers, to ensure transmission of
calling line identification, to ensure transparency of international
roaming prices, to improve network security, to combat spam, to
improve energy-efficiency and reduce e-waste, and to facilitate use
of telecommunications by people with disabilities. [ITRs-2012]
Most of the treaty text was not controversial, but certain specific
provisions of the treaty were controversial. Those provisions are
contained in 6 paragraphs out of a total of 77 paragraphs that
comprise the main text of the treaty. One Resolution adopted by
WCIT was also controversial. If that is included, then the
controversial text comprises less than 2 pages out of the total 24
pages approved at the conference. [Hill-2013]
3. Criticism of the 2012 ITRs
It has been said that the WCIT outcomes establish a new
international regulatory regime for the Internet and give new powers
to the ITU. This new regime threatens the current multi-stakeholder
model for Internet governance which has proven its worth, and it
threatens economic growth and freedom of speech around the world.
[EC-2012], [US-2013], [New-2013]
In particular a provision in the Preamble of the ITRs creates new
rights for states (which threaten established individual rights);
new articles on security and spam invite governments to take
content-based action which could result in regulation of speech on
the Internet; a new Resolution represents a direct extension of
ITU's role and scope into the Internet and shifts the emphasis from
community and consensus to centralization through government action.
4. Analysis of the Criticism
The criticism of the 2012 ITRs appears to be based on a superficial
and out-of-context reading of the provisions in question. When
analysed correctly from the legal point of view, it can be seen that
the new provision in the Preamble does not conflict with existing
rights of individuals or of states; that the new provisions on
security and spam cannot be understood to related to content; and
that the new Resolution does not in any way expand ITU's role and
scope, while it does recognize the multi-stakeholder model agreed at
the World Summit on the Information Society (WSIS). [Hill-2013]
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Thus it is incorrect to conclude that the WCIT outcomes establish a
new international regulatory regime for the Internet and give new
powers to the ITU. Nor do they threaten the current
multi-stakeholder model for Internet governance or free speech.
4.1. Analysis of Criticism of Specific Provisions
Regarding criticism of specific provisions [Hill-2013]:
* The new provision in the Preamble does not create any additional
rights or obligations, it merely recognizes the rights and
obligations that already existed under the Constitution, see in
particular its Article 35.
* New language in Article 1 regarding "authorized operating
agencies" merely aligns the ITRs with the ITU Constitution (which
has precedence over the ITRs) and thus does not extend the scope
of the ITRs.
* Article 5A on security and 5B on spam must be interpreted in light
of Article 1, which defines the scope of the treaty and states
that it does not address the content-related aspects of
telecommunications. Since the ITRs do not address content, those
articles cannot be seen to be addressing content. Thus, those
articles are about measures that do not depend on content. There
are such security measures and such measures to combat spam.
* Those who argue, in the alternative, that there are no possible
non-content-related measures regarding security and spam are in
effect arguing that the two articles are inoperative, because
Article 1 (Purpose and Scope) excludes content-related aspects and
prevails over Articles 5A and 5B. The usual approach to such a
situation would be to sign the treaty with a reservation of the
form "we will not apply Article 5B because we believe that it is
inconsistent with the Purpose and Scope".
* In any case, by virtue of the "no content" provision of Article 1,
no country could invoke the ITRs as justification for imposing
content-filtering. That is, since content is outside the scope of
the ITRs, so is content-filtering. Of course a country might impose
content-filtering, but it could not invoke the ITRs as a legal
basis for doing so. That is, the "necessary measures" referred to
in Article 5B cannot be understood to include content-filtering.
* Paradoxically, those who refuse to implement Article 5B on the
grounds that it is related to content are in effect arguing against
limitations on measures to counter spam. Indeed at present there
aren't (to the author's knowledge) any international treaties that
limit what states can do regarding spam, apart from obligations
relating to human rights. If it is understood that Article 5B
does not relate to content, then that article puts an obligation on
states not to deal with the content-related aspects of spam. That
is a significant restriction. Those who state that Article 5B
applies to content are in effect denying the restriction and opting
for the status quo, where there are no restrictions (apart from
human rights) regarding how to deal with spam. And they are in
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effect creating a situation where there is no basis in
international law (apart from human rights) to complain regarding
anti-spam measures. Similar considerations apply regarding Article
5A on security: refusal to accept this article is tantamount to
refusing to accept restrictions on security measures (apart from
those arising out of human rights obligations).
* Articles 5A and 5B call for cooperation amongst ITU Member States,
a call which also appears in WTSA Resolutions 50 and 52. Many
countries have initiatives regarding security and spam. Presumably
it would be desirable for countries to cooperate to adopt "best
practices" in these area. That is, practices that clearly do not
impinge on human rights and that respect due process. So it would
appear that the call for cooperation is positive, because it
should make it less likely that some country would (perhaps
unwittingly) adopt inappropriate measures. That is, the call for
cooperation appears to make it more likely that security measures
would follow the best-practices models that are generally agreed.
* The operative part of Resolution 3 invites ITU Member States to
discuss Internet-related technical, development and public-policy
issues within the mandate of ITU at various ITU forums; to engage
with all their stakeholders in this regard. And it instructs the
Secretary-General of ITU to continue to take the necessary steps
for ITU to play an active and constructive role in the development
of broadband and the multi-stakeholder model of the Internet as
expressed in paragraph 35 of the Tunis Agenda; and to support the
participation of Member States and all other stakeholders, as
appropriate, in the activities of ITU in this regard. The
Resolution cannot (and does not) expand ITU's role and scope, and
it cannot (and does not) modify the WSIS outcomes. It does not
shift the emphasis from the multi-stakeholder model towards
top-down government action, on the contrary, it promotes
multi-stakeholder consultations.
5. A Way Forward?
A refusal by some countries to implement the new ITRs could deprive
their citizens of certain benefits (such as transparency of roaming
prices, prevention of numbering misuse, transmission of calling party
identification, improved accessibility for people with disabilities,
and best practices regarding energy efficiency and e-waste).
[Hill-2013]
Further, non-uniform implementation could create difficulties for
companies operating worldwide, if different regulatory regimes
emerge.
In the limit, refusal to implement the new ITRs might result in the
development on non-harmonized national practices which might lead to
an undesired fragmentation of the Internet. [LS-2013]
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There are various scenarios regarding what could happen in the future:
* 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
Implementation of the 2012 ITRs in a non-controversial manner might
appear to be the solution that is most consistent with a legal
analysis of the treaty and the solution that is most likely to avoid
undesirable consequences. [Hill-2013]
6. IANA considerations
There are no requests for IANA allocation of code-points in this
document, nor are any other IANA actions required.
7. Security considerations
The uncoordinated development of networks poses a risk of harm to
the Internet. A persisting split between signatories and non-
signatories of the ITRs could pose such a risk.[Raymond-2013]
Indeed, the recently revealed United States PRISM program
[Savage-2013] is an example of unilateral surveillance of foreign
Internet communications that some [ISOC-2013] consider inappropriate.
And surely most would consider the Iranian control of Internet
[Musil-2013] to be inappropriate.
At the 88th IETF meeting, there was consensus that steps should be
taken to counter pervasive surveillance (such as
encryption). [Housley-2013] However, such technical means can only
be implemented if they are legally allowed, thus governments should
agree to allow such steps.
8. Acknowledgments
This document is based on a more detailed legal analysis [Hill-2013]
and the author wishes to acknowledge Oxford University Press for
their permission to publish this summarized version. This summarized
version was presented at the GiGaNet workshop in Geneva on "The
global governance of the Internet: Intergovernmentalism,
multistakeholderism and networks", 17-18 May 2013.
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9. Informative references
[EC-2012] European Commission, "No change to telecoms and internet
governance - EU Member States amongst dozens not signing
proposed new International Telecommunications Regulations
(ITR) Treaty, remain 100% committed to open internet"
(memo 12/992 of 14/12/2012), http://europa.eu/rapid/
press-release_MEMO-12-991_en.htm
[Hill-2013]
Richard Hill, "WCIT: failure or success, impasse or way
forward", International Journal of Law and Information
Technology, vol. 21, no. 3, p. 313,
http://ijlit.oxfordjournals.org/content/21/3/313
[Hill-2013a]
Richard Hill, The New International Telecommunication
Regulations and the Internet: A Commentary and Legislative
History (Schulthess/Springer),
http://www.springer.com/law/international/book/
978-3-642-45415-8
[Housley-2013]
Russ Housley, "IETF88 Technical Plenary Hums", E-Mail.
https://www.ietf.org/mail-archive/web/ietf/current/
msg83857.html
[ISOC-2013]
Internet Society, "Statement on the Importance of Open
Global Dialogue Regarding Online Privacy", 12 June 2013,
http://www.internetsociety.org/news/internet-society-
statement-importance-open-global-dialogue-regarding-
online-privacy
[ITRs-2012]
ITU, "International Telecommunication Regulations",
http://www.itu.int/en/wcit-12/Documents/final-acts-wcit-
12.pdf
[LS-2013] L.S., "Internet Regulation: A digital cold war?", The
Economist, http://www.economist.com/blogs/babbage/2012/
12/internet-regulation
[Musil-2013]
Steven Musil, "Iran develops software to control social
networks", 6 January 2013, CNET, http://news.cnet.com/8301
-1023_3-57562295-93/iran-develops-software-to-control-
access-to-social-networks/
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[New-2013] William New, "European Commission VP Kroes Urges Open
Internet, Prods Copyright Owners", Intellectual Property
Watch, 21 March 2013, <http://www.ip-watch.org/2013/03/21/
european-commission-vp-kroes-urges-open-internet-prods-
copyright-owners
[Raymond-2013]
Raymond, M. and Smith, G., 2013. "Reimagining the
Internet: The Need for a High-level Strategic Vision for
Internet Governance," Centre for International Governance
Innovation, Internet Governance Papers, Paper No. 1, July
2013, http://www.cigionline.org/sites/default/files/
no1_4.pdf
[Savage-2013]
Charlie Savage, Edward Wyatt, and Peter Baker, "U.S.
Confirms that it Gathers Online Data Overseas", The New
York Times, June 6, 2013, http://www.nytimes.com/2013/06/
07/us/nsa-verizon-calls.html?_r=0
[US-2013] Witness statements made at the 5 February 2013 Hearing
"Fighting for Internet Freedom, Dubai and Beyond", U.S.
House of Representatives Committee on Energy and
Commerce's Subcommittee on Communications and Technology
http://energycommerce.house.gov/hearing/fighting-for-
internet-freedom-dubai-and-beyond
[WCIT-12] ITU "World Conference on International Telecommunications"
http://www.itu.int/wcit. See in particular the
presentation http://www.itu.int/en/wcit-12/Documents/
wcit-myth-buster-en.pptx
Authors' Addresses
Richard Hill
Hill & Associates
Geneva, Switzerland
Phone:
Fax:
Email: rhill@hill-a.ch
URI: www.hill-a.ch
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