[kictanet] The 2012 World Conference On International Telecommunications: Another Brewing Storm Over Potential UN Regulation Of The Internet

[Alice Munyua]

Dear all,

Something for  us to consider.

The International Telecommunication Regulations (ITRs) forms a binding 
international treaty under the International Telecommunications Unions 
(ITU)and go back to the early days of the ITU when there were two 
separate treaties, dealing with telegraph and telephone. The ITRs were 
adopted, as a single treaty, at the World Administrative Telegraphy and 
Telephone Conference held in Melbourne, 1988 (WATTC-88).

The  ITRs can be amended through a World Conference on International 
Telecommunications (WCIT), and the next amendment is scheduled for 2012. 
Before then a process of review of the ITRs, which began in 1998 continues.

The ITR comprise 10 articles, which deal with definition of 
international telecommunication services,  cooperation between countries 
and national administrations, safety of life and priority of 
telecommunications and charging and accounting principles. The adoption 
of the ITRs since 1988 is often taken as the start of the wider 
liberalisation process in international telecommuniactions and so a very 
important process for the ICT sector. The ITU plenipotentiary approved 
aWorld Conference on International Telecommunications (WCIT)  and 
the  Council constituted an expert group (council Resolution 1312) to 
pursue PP Resolution 146 (Antalya 2006) among others.
While its quite a complex legal/political process, (well at least to me) 
our liberalisation process has led to one of the fastest growing ICT 
markets and wee therefore need to engage in this process.


Below is an interesting article from a legal perspective.

Best

Alice



    http://www.whoswholegal.com/news/features/article/29378/the-2012-world-conference-international-telecommunications-brewing-storm-potential-un-regulation-internet/


    The 2012 World Conference On International Telecommunications:
    Another Brewing Storm Over Potential UN Regulation Of The Internet

Ambassador David A Gross and Ethan Lucarelli of Wiley Rein LLP consider 
the possible effects of the renegotiated UN International 
Telecommunication Regulations.

Ambassador David A Gross and Ethan Lucarelli, Wiley Rein LLP

Ambassador David A Gross and Ethan Lucarelli, Wiley Rein LLP

Once again, many companies in the telecoms and information and 
communications technology (ICT) sector are facing the spectre of a 
United Nations agency (in this case the International Telecommunication 
Union (ITU)) regulating critically important aspects of the internet as 
well as substantially expanding its jurisdiction over the telecoms and 
ICT industries.

It is important that telecoms, technology, and ICT lawyers, consultants, 
and advisers -- both in-house and outside -- carefully monitor the 
domestic and international preparations by governments leading up to 
this major international treaty conference as it will potentially have a 
material impact on companies throughout the entire sector.

Specifically, in December 2012, the ITU will be holding a major 
treaty-writing conference in Dubai that many countries would like to use 
to significantly expand the jurisdiction and legal authority of the ITU, 
even potentially giving this United Nations agency greater influence 
over internet governance as well as major telecoms issues such as 
accounting rates and termination charges for next-generation networks, 
data privacy, cybersecurity, international mobile roaming, and equipment 
specifications.

For more than two decades, the story of global economic policy has been 
one of promoting competition and increasing liberalisation across 
various industries, especially the telecoms and internet sectors. Today, 
however, significant government and civil society support is developing 
for a different policy outlook. Driven largely by the global financial 
troubles of recent years together with persistent concerns about the 
implications of the growth of the internet for national economies, 
social structures and cultures, some governments and others are now 
actively reconsidering the continuing viability of liberalisation and 
competition-based policies.

The ITU's World Conference on International Telecommunications (WCIT) 
could signal a shift in the regulatory paradigm on both the 
international and national levels. At the conference, a major 1988 
treaty known as the International Telecommunication Regulations (ITRs) 
will be renegotiated. Some within the ITU and among its 193 member 
states would like to see major changes to the treaty, particularly with 
respect to the internet as well as wireless, IP-based, and 
next-generation networks, which have historically been mostly free of 
intrusive economic and other regulation. Stating his belief that a 
substantial expansion of the scope of treaty is necessary, ITU 
Secretary-General Hamadoun Touré recently asserted that "[w]e need 
updated ITRs because without them we risk the collapse of the ICT 
networks which underpin all communications technologies, including the 
internet." Other countries, however -- notably, the United States -- 
believe instead that the WCIT should adopt only minor changes to the 
ITRs as necessary to modernise the existing provisions of the treaty, 
and that new provisions and authorities are unnecessary.

Because of the ITU's international visibility, decisions made at the 
conference could signal to both domestic regulators and other 
international intergovernmental organisations that a move toward more 
intrusive economic and other regulation is appropriate. It seems fair to 
say that the decisions made by governments at WCIT will help define the 
international regulatory environment for the internet and telecoms in 
the 21st century.

THE ITU AND THE INTERNATIONAL TELECOMMUNICATION REGULATIONS

The ITU, established more than 100 years ago, is a specialised agency 
within the United Nations that focuses on telecommunications and ICT. 
The ITU allocates global radio spectrum and satellite orbits, develops 
technical standards to promote interconnection and technical 
interoperability, and works to improve telecommunications access for 
underserved communities. The ITU has historically disclaimed any 
authority to regulate domestic telecommunications, clearly recognising 
in the ITU Constitution the "sovereign right of each state to regulate 
its telecommunication."

While the ITU has a limited scope of regulatory authority over 
international radio-communication issues, it also adopts recommendations 
on a wide range of topics and facilitates the adoption of international 
treaties. ITU recommendations do not have the force of law, but rather 
set forth suggested regulations and requirements for national regulatory 
authorities. These recommendations address standardisation, economic and 
technical issues. By distinction, international treaties are generally 
binding law for all nations that are signatories to the treaty.

The ITRs are a binding 1988 treaty that established important general 
principles relating to international telecommunications services and 
transport, interconnection and interoperability of telecommunications 
facilities, and accounting and settlement of international voice traffic 
between administrations. While the ITRs provide a general framework for 
mutual agreements between countries regarding the exchange of 
telecommunications traffic, the ITRs also allow for private agreements 
between non-governmental organisations (e.g., telecommunications 
carriers). This is the typical method for most agreements for the 
exchange of international traffic today.

THE WORLD CONFERENCE ON INTERNATIONAL TELECOMMUNICATIONS

Since the ITRs were adopted in 1988, the international 
telecommunications marketplace has experienced rapid technological 
change, the development of competitive and liberalised markets, and the 
privatisation of national telecommunication service providers. As a 
result, in December 2012, the ITU will host the World Conference on 
International Telecommunications in Dubai to revise and modernise the 
treaty for the first time since its adoption.

So far, there is no international consensus about the scope of 
appropriate modifications to the treaty. For some governments, the WCIT 
presents an opportunity to significantly expand the jurisdiction and 
role of the ITU into previously unregulated, lightly regulated or 
domestically regulated aspects of the emerging digital economy. Some of 
the proposed changes to the ITRs could position the ITU as a 
supra-national regulator and require signatory nations to enact 
conforming domestic laws. ITU Secretary-General Touré has asserted that 
the recent problems in the financial and banking sectors were caused by 
"inadequate regulation and regulatory supervision" and he has called for 
the international community to agree to "a framework that will avoid any 
catastrophe" in the telecoms sector.

Participation will be limited to representatives of national 
governments. However, private sector entities generally have 
opportunities to help inform the policymaking in advance of the 
conference, such as through meetings with individual governments, 
participation in working groups or preparatory meetings, and appearances 
before international or regional organisations. Many governments allow 
members of the private sector to be on their national delegations to ITU 
conferences.

PROPOSED CHANGES TO THE ITRS

Typically, international telecommunications issues such as international 
mobile roaming, internet peering, and internet governance are handled 
today through a combination of negotiated agreements between private 
parties, bilateral and multilateral trade agreements, and 
non-governmental technical or civil society organisations. Some 
countries, however -- particularly within the developing world -- object 
to the current situation on the grounds that the system does not pay 
sufficient regard to their economic and other needs, that it 
disproportionately favours major international telecom and technology 
companies, and that the United States government has too much direct 
influence in decision-making. To address these perceived inequities, 
several new provisions and modifications for the ITRs have been proposed:

/Internet management/

Several countries have proposed to move oversight or "control" of 
aspects of the internet and internet development from the 
non-governmental multi-stakeholder mechanisms such as ICANN and replace 
them with the ITU.

/Internet charges/

Some governments would also like the ITU to play a greater role in 
regulating peering, termination charges for data traffic, and other 
internet-related rate issues to, among other things, potentially lower 
certain internet backbone costs and to capture for domestic coffers some 
of the value of international VoIP services entering their countries.

/Mandated application of ITU recommendations/

The ITU has issued non-binding recommendations on topics ranging from 
accounting rates and tariff issues to the construction, installation and 
protection of telecommunications cables, to the power flux density of 
wireless transmitters. While these recommendations are only advisory at 
the moment, some proposals could transform some or all of these 
recommendations into mandatory treaty provisions with the force of law.

/International regulation of roaming/

The ITU currently does not have legal authority to directly regulate 
either retail or wholesale international mobile roaming rates, but WCIT 
could expand the ITU's authority over international roaming, especially 
regarding wholesale rates.

/Cybersecurity/

Some countries are seeking to include cybersecurity and cybercrime 
provisions into this treaty so that the ITU can impose new regulations 
and establish itself as the organisational home for international 
cybersecurity policymaking. Included within this could be broad new data 
privacy, spam, and child protection regulations.

/Developing country issues/

Some developing world countries suggest that the ITRs be modified to 
allow them to charge carriers from the developed world higher rates. In 
addition, some countries also would like to modify the ITRs to lower the 
costs for developing world countries when they bargain with commercial 
carriers for international telecoms and internet services, as well as to 
ensure "transparency" for retail and wholesale prices and quality of 
service.

These and the other changes proposed in the WCIT preparatory process 
could greatly expand the scope of the ITRs and grant the ITU substantial 
new regulatory powers, thereby radically changing the regulatory 
landscape. The effects of these revisions could affect the fundamental 
economic structure of the entire ICT sector. For example, making the ITU 
Recommendations mandatory would effectively supersede established 
industry practice and domestic regulations with respect to core aspects 
of equipment design and network operations. Similarly, proposals related 
to how companies can collect and use customer data, cybersecurity, or 
child protection would interject an international intergovernmental 
organisation into the relationship between service providers and their 
customers. Additionally, the combined effect of the proposals would be 
to bring under ITU authority the core functions of many established and 
effective international non-governmental organisations such as IEEE, 
ISOC, ICANN, and W3C, particularly with respect to the design of systems 
and infrastructure, the development of protocols, and the management of 
domain and numbering resources.

/Other Proposals for Increased International Regulation of the Internet/

Perhaps even more significant than the specific reform proposals being 
considered in the run up to the WCIT is what these proposals represent 
in terms of the broader regulatory paradigm. The outcome of the 2012 
WCIT may signal to regulators on both the international and national 
levels what the appropriate role of government should be in the 21st 
century regarding the internet and telecoms generally. Governments, 
particularly in the developing world, could interpret the introduction 
of new interventionist regulations through the ITRs as signalling that 
increased regulation of the ICT sectors is appropriate, which could 
ultimately hinder investment and competition in these markets.

Indeed, discussions regarding international internet policymaking are 
already gaining momentum within the UN and various other international 
forums. Some of these proposals are more specific than others, and they 
each have different likelihoods of producing real results, but taken 
together, they demonstrate the widespread attention these issues are 
receiving by governments around the world. To illustrate:

/India's proposal for a new UN agency/

In late October 2011, India submitted to the UN a proposal for the 
establishment of a new mechanism for internet-related public policy 
activities to be called the United Nations Committee for 
Internet-Related Policies (CIRP). As proposed, the CIRP would oversee 
the bodies responsible for operational functioning of the internet and 
global standard setting, as well as crisis management and international 
public policy matters.

/International Convention on Cybercrime/

Russia has long sought UN action regarding cybersecurity and 
internet-transmitted information. In September 2011, Russia, China, 
Tajikistan and Uzbekistan submitted to the UN General Assembly a 
proposal for the adoption of an International Code of Conduct for 
Information Security. Among other things, this Code would commit 
signatories to cooperating in "curbing the dissemination of information 
that incites terrorism, secessionism or extremism or that undermines 
other countries' political, economic and social stability."

/World Technology Policy Forum/

In 2013, the ITU will convene the 5th World 
Telecommunication/Information and Communication Technology Policy Forum 
to discuss internet issues related to the ITU's involvement in 
internet-related public policy. Unlike the WCIT, this Policy Forum will 
not create binding international treaty documents, and therefore it may 
be a more comfortable forum for some of these discussions.

/London Conference/

In early November 2011, the United Kingdom hosted an international 
Conference on Cyberspace in London, which emphasised the development of 
uniform international norms for private and governmental behaviour 
online. This conference is expected to become an annual forum for policy 
discussions among high-level ministers and other governmental 
representatives, with meetings already being planned for the next two years.

Despite the broad and dramatic scope of various governmental proposals 
-- which could affect core aspects of running an ICT, telecoms, or 
internet-based business -- the WCIT preparatory process is not receiving 
sufficient attention from most businesses and others. The WCIT could 
lead to new regulations governing how these businesses are run and how 
such businesses may interact with their customers, partners, and 
vendors, as well as how they can innovate and provide new and improved 
services. Moreover, because of the implicit attacks on established 
mechanisms of internet governance, the WCIT has the potential to 
destabilise and politicise standardisation processes and the management 
of the internet architecture in a way that could also hinder innovation 
and efficiency. Many national delegations are interested in hearing the 
concerns of industry and others. Interested companies and other groups 
should take steps to monitor the conference preparatory processes and 
should be on the lookout for opportunities to inform and influence the 
debate.

-- 


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