European Affairs

WCIT was organized by the International Telecommunication Union (ITU), which was established in 1865 at the advent of the telegraph. The ITU is now an organ of the United Nations. The ITRs, last updated in 1988 when privatization of government Post, Telegraph and Telephone agencies was just beginning, historically has given the ITU a facilitator role in regulating the termination of traffic between government-owned monopoly telecom operators. But the ITRs were increasingly marginalized as international communications became increasingly privatized and competitive—with the most dramatic changes driven by the private-sector commercialization of the Internet.

The issues at the WCIT were important to Internet freedom although couched in esoteric technicalities (See recent pre-conference article in European Affairs by U.S. Ambassador Terry Kramer.) The United Arab Emirates – which chaired the WCIT in Dubai--was reportedly alarmed by the role social networks played in the Arab Spring. Other autocratic regimes have also been concerned about the free-wheeling nature of the Internet and were seeking ways to rein it in. The U.S. and the European Union however, stayed aligned in opposition to changes that could result in Internet censorship. The twenty-seven Member States of the EU are voting members of the ITU and the European Commission is a non-voting sector member. The EU made the tactical decision to have a common position going into the WCIT, enabling it to speak with one voice. Each of the twenty-seven Member States did not sign the new treaty.

The U.S. and the EU are not always in agreement at the ITU, or on Internet governance. Over the years, EU Member States have argued for a more “distributed” role in Internet governance, with some believing the U.S. has too large of a stake. Moreover, Europeans have not structured their regulatory framework, like the U.S. has, to have so much regulatory burden attached to the classification of “telecommunications”– a fact driving some of the U.S. positions. Nonetheless, the EU appears to have looked beyond historical positions and grasped the critical need to preserve Internet freedom for the future.

The central question of the Conference, though deliberately unspoken, was whether the ITRs should be revised to expressly reference the Internet, thereby sanctioning inter-governmental regulation and possibly supplanting the existing bottom-up “multi-stakeholder” governance. (“Multi-stakeholder” refers to the current combination of private sector, governments, and civil society, acting together to resolve Internet naming, numbering, security and other issues.)

In the aftermath of the Arab Spring and elections in Russia and elsewhere, where social networks have threatened incumbent regimes, regulation of the Internet has become amore politicized question. For many years, economic growth attributable to the Internet served as a bulwark against tampering with its largely private, multi-stakeholder governance. But this year’s WCIT made clear that it will take more than economic growth to keep some nations from seeking to use an international treaty to sanction crackdown or surveillance of political speech. Despite repeated assurances from ITU Secretary General Hamadoun Touré that the WCIT would not be the forum—and the ITRs not the instrument—many ITU Member States pushed to approve inter-governmental regulation of the Internet through the ITRs. The United States and Europe had some critical successes in limiting that expansion, but ultimately, a Resolution explicitly encouraging ITU mission creep toward the Internet forced them to walk away from the signing table.

The alliance of the United States and the EU led to three notable successes. First, the alliance was able to prevent the expansion of the ITU’s jurisdiction from “recognized operating agencies” to al l“operating agencies”–including unlicensed providers of Internet services. Second, the treaty now explicitly states that the ITRs do not regulate content. Finally, the U.S. and the EU blocked inclusion of the European Telecommunications Network Operators Association’s(ETNO’s) “sending party pays” proposal. The EU is to be commended for rejecting a proposal from key European industry players. ETNO’s proposal would have required content providers to pay telecom networks to deliver content, like the result of portal searches, to their users. While these successes were critical and make the ITRs more palatable, they were not enough to save the treaty from the U.S. and EU perspective.

Regarding content regulation, the UAE introduced a proposal ostensibly to combat spam and increase network security. Nations objected to the proposal, including the Netherlands, Portugal, Sweden, and the United States, because it went beyond the technical infrastructure of network security and into the regulation of content. Despite this opposition, the Conference ultimately included this proposal as Article 5B of the revised ITRs, which allows Member States to take necessary measures to “prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services.” One country’s spam is another’s free speech. If governments were really concerned about spam, they could have written that article to apply to unsolicited commercial electronic communications. While Article 5B was an unwelcome addition to the ITRs, the U.S. and the EU achieved Article 1.1(a), which states that the ITRs “do not address the content-related aspects of telecommunications.” Article 1.1(a) should serve as a line of defense against those attempting to use the ITRs to sanction content regulation. Still, the inclusion of Article 5B undoubtedly influenced some Member States’ decision not to sign the treaty.

In some ways, the greatest success of the United States and European Union alliance came in blocking a “sending party pays” proposal originally put forth by ETNO. Several months before the Conference ETNO championed a proposal that would force content providers (senders) to pay fees to network operators (in some countries, national governments) in order to transmit content to Internet users. Recognizing that this new arrangement would not only imperil content providers (many of which are in the United States and Europe) but also the ecosystem broadly, the United States strongly opposed the proposal and the European Union’s Common Proposals did not include it. The proposal, however, metastasized in developing countries outside the U.S. and Europe who believed it was an opportunity for economic benefit to state-owned communications companies.

Despite these critical successes, the United States and EU could not surmount an eleventh hour “Resolution” from the UAE to encourage the ITU to take an active role in the administration of the Internet. The proposal, entitled “To foster an enabling environment for greater growth of the Internet,” explicitly encourages the ITU to expand its reach to the Internet. The Resolution includes a principle that many Europeans espoused a few international conferences back: “all governments should have an equal role and responsibility for international Internet governance”. However, at WCIT, the U.S. and the EU worked together to oppose the Resolution. While the Resolution is non-binding and separate from the text of the treaty, there can be little doubt that this Resolution lays the foundation for the ITU to attempt inter-governmental regulation of the Internet—as opposed to governance driven by the bottom-up multi-stakeholder approach.

United States Ambassador Terry Kramer stated that it was with a “heavy heart” that the United States could not sign the treaty in its current form. While the heart may have been heavy, it was hardly lonely: at the time of this writing more than 50 nations have not signed the treaty—a number that includes three dozen European countries, India, Australia, Canada, Kenya, Japan, the Philippines, Chile, Colombia, Costa Rica and Peru.

The European Commission released a memorandum stating, “[i]n the opinion of EU participants, the final text risked threatening the future of the open internet and internet freedoms, as well as having the potential to undermine future economic growth. The EU was concerned about this possible harm not only within the EU, but globally, including developing countries.”

Failing to gain international consensus seriously undermines the ability of the ITRs to sanction government content control and surveillance, particularly with the United States and the EU united against the new treaty. As the European Commission noted, what is clear is that “existing commercial arrangements are untouched,” and “market-led commercial arrangements remain possible and the open Internet remains in place.” The decision not to sign should signal that a strong and committed alliance between the United States and the EU is one of the bulwarks against governments seeking to control the Internet.

As critical as United States and European support is to the future of an unfettered Internet, the alliance must continue to gain even more support if it wishes to stave off continued efforts for inter-governmental regulation. Round Two will come as early as May, with the ITU holding the World Telecom Policy Forum, and Round Three will be at the Internet Governance Forum in the fall. Another treaty conference follows in 2014. The United States and Europe must do as much as possible to show nations across the globe the importance of, and the economic benefits that come with, an open and free Internet. Countries prepare for ITU conferences in regional blocks, and the EU shares Region One with Africa and the Middle East. Russia, a proponent of an enhanced ITU role, gets to participate in both Europe’s CEPT (Conference of European Post and Telecommunications Administrations) and in its own bloc – the RCC (Regional Commonwealth in the field of communications). The U.S. has its own regional challenges, with only Canada, Chile, Columbia, Costa Rica and Perunot signing. Nonetheless, the U.S. and the EU are expected to continue to champion the economic benefits of a multi-stakeholder, private-sector led Internet. We fully expect to see more advocacy on the Internet’s importance to economic growth at places such as Google’s and by the Internet Society. Although the WCIT may have temporarily forced Internet freedom to be shouldered by a limited bloc of nations, the economic success and transformative ability of an open Internet continue to be its greatest defense.

Perspectives is an occasional feature of European Affairs where European Institute members discuss important topical issues.

Patricia Paoletta is a partner and Peter McElligott is an associate at the law firm of Wiltshire & Grannis LLP in Washington, D.C., which represents companies involved in these issues. Paoletta is former Telecommunications Trade Director at the U.S. Trade Representative.