[A2k] On Developing Opinions to Frame the World Telecom Policy Forum

Seth Johnson seth.p.johnson at gmail.com
Mon Jan 7 15:25:03 PST 2013


Hi folks, see my comments below I sent to the folks working on the
Secretary-General's Report framing the WTPF in May.  I just put it on
my blog with helpful internal links:

> http://internetdistinction.com/bricoleur/2013/01/07/prepare-sec-gen-wtpf-opinions/


Seth


First, where we're at and what I'm going to cover below.  Right now
we're preparing for the World Telecommunications Policy Forum in May,
preparing opinions to go with the revisions that will produce the
Fourth Draft of the Secretary General's Report, to be posted for
review on January 10th.  Just prior to that, from January 7 to 9, will
be an inter-sessional meeting of the Commission on Science and
Technology for Development (CSTD) that will help set context,
addressing urbanization and sustainability, broadband for an inclusive
digital society, and WSIS followup.  This past May the CSTD also held
a meeting on enhanced cooperation and public policy issues related to
the Internet, and issued two resolutions, one on science and
technology for development, and another on progress in relation to the
WSIS.  The IEG will then address the Fourth Draft beginning January
14th.

What I will do below is analyze the opinions under consideration, and
offer one or two that would also be helpful, at least sketching their
basic ideas.  As I do so, I will also offer comments on the Third
Draft of the Secretary General's Report for the WTPF.  Since the
deadline for submissions for that draft has passed, I offer these
comments now for consideration once the Fourth Draft is ready.  I will
focus on two areas of consideration that are relevant both now and
generally, and that also have import in relation to the important
questions many of us may have regarding the US's position in relation
to the overall processes underway, given the outcome of the WCIT:

   - Understanding standards-making while considering the question of
Internet governance in light of the unique character of transnational,
inter-governmental fora

   - Understanding the Internet in relation to international
development while distinguishing it from the general category of
information and communications technologies (ICTs)

I'll relate these considerations to the preparation of opinions for
the Secretary General's Report and the objectives of the upcoming
WTPF, and to the context formed by the approaching WTPF and WSIS
meetings, the upcoming CSTD event, and the CSTD's activities this past
May.  I will then address these concerns with an eye toward the next
plenipotentiary proceedings in 2014, noting how they relate to
relevant parts of the Guadalajara, Hyderabad and WSIS Resolutions.

We have to understand what the implications of standards-making in an
inter-governmental, transnational context really are, we have to
understand development in relation to what the Internet really is, and
we have to draw the right lines between the Internet and other notions
such as ICTs and traditional telecommunications. These questions are
key to gaining common understanding in the context of the question of
Internet governance and the WSIS, and the issue of the relationship of
intergovernmental bodies such as the UN and/or the ITU to the Internet
itself.

Here's an outline to see where I'm going -- full text below:


I. Addressing Opinions and Parts of the Secretary-General's Third
Draft of Its Report to the World Telecommunications Policy Forum

   A. Governance

      1) Characterizing the Unique Nature of International Governance
      2) Standards-making and National and International Governmental
Participation
      3) Addressing "Enhanced Cooperation" Given This Characterization
of the Nature of International Governance
      4) Key Characteristics of the Internet Relevant to Governance
and Development
      5) Formulating International Governance of the Internet
          i. Nationally-hosted Internet Oversight Bodies
          ii. A Technical Standard for Notifying End Users Whether
They Are Accessing Endpoints on Networks that are Not Open and General
Purpose
          iii. Inter-Governmental Public Policy Oversight Bodies

   B. Development

      1) Real Internet, ICTs and Development
      2) Need to Help CWG-Internet Define "ICTs"
      3) General Usage of the Term "ICT" In Relation to the WSIS and
the CSTD's Frame for Development

   C. National Telecommunications Incumbents

II. Fixing the Frame: Plenipotentiary Acts

   A. Key Considerations for Preparing the Secretary-General's Report
for the WTPF
   B. Guadalajara Resolutions That Would Need Review and Revision In
Order to Address International Governance of the Internet
Appropriately


Text:

I. Addressing Opinions and Parts of the Secretary-General's Third
Draft of Its Report to the World Telecommunication Policy Forum

The third draft of the Secretary General's Report to the WTPF
addresses two general themes: Internet governance, and how to foster
development of technologies globally.  The first theme elicits
questions of the nature of standards-making, multi-stakeholderism and
"enhanced cooperation" in the international context, and the second
elicits questions of the nature of the Internet and information and
communications technologies (ICTs).


  I.A. Governance

We see two opinions on governance in the IEG record, both from Saudi
Arabia: one on enhanced cooperation and another on
multi-stakeholderism.  They call for enhanced cooperation to be
operationalized and invite the Secretary-General to establish an
intergovernmental organization to "fully actualize the role of
governments in the multi-stakeholder model of Internet governance."

The body of the Secretary-General's report also includes a section on
multistakeholderism and references global principles for governance as
themes to be discussed

These components of the report should be adapted based on a fuller
understanding of how the organizations long associated with the
stewardship of the Internet have functioned in relation to national
contexts wherein the role of governments is more reliably subject to
the claims of fundamental liberties than the international context can
provide.


      I.A.1) Characterizing the Unique Nature of International Governance

The distinct character of the international arena, from a democratic
standpoint, is often not understood sufficiently.  It is not enough,
to establish a sustainable democratic regime, to simply participate in
governing structures or to consent to the acts of representatives made
accountable through elections.  A parallel fundamental characteristic
of democratic regimes is the founding act of the people which
establishes such a regime.  This is generally referred to as an act of
the people's "constituent power."  When a people act as a people
independently of their government to draft and ratify a constitution
under which they will proceed to govern themselves, they are not only
defining explicit rules for the regular conduct of the government,
they are also asserting the priority of the people to the government.
By exercising the constituent power, a people lay a historical
foundation for the government wherein their fundamental rights come
prior within the legal system to the prerogatives of the regular
government, which acts in the name of the people on a day-to-day
basis.

This foundation does not exist in the international arena, and this is
why inter-governmental forums are less reliable contexts within which
the people can exercise their fundamental freedoms.  International
treaties, including those declaring rights, are acts among
governments, not constituent acts of the people that set the historic
priority of their fundamental rights.  International declarations of
rights are therefore of limited value because the rights they
articulate can be traded off against the will of governments, acting
individually or severally, much more willingly than can occur within
national contexts where governments do not invade fundamental
liberties without the risk of being overruled by the democratic legal
system, which holds certain fundamental rights as preeminent simply by
reference to their founding acts.  Though it is not regularly
understood, this is why the standards-making bodies that have been the
stewards of the Internet have readily allowed governments to
participate, yet they are much more leery in the context of
inter-governmental treaty structures.

In addition to this basic nature of the distinction, it's also
important to note that in a democracy that accords broad treaty-making
powers to its executive branch, the very demarcation of the
international arena from the national geographical arena over which
the people have claimed their sovereignty, allows the executive to act
through treaties in ways that -- most of the time, so far -- override
that local sovereignty, even that claim of the fundamental priority of
the rights of the people within their nation.  A third general point
is that transnational corporations also exploit this character of the
international arena.  These three considerations are the fundamentals
of what is at stake when we consider international governance from the
standpoint of democratic considerations


      I.A.2) Standards-making and National and International
Governmental Participation

Standards-making proceeds much more freely, with much more assurance
that technical considerations will be practically considered on their
own merits, in a context wherein governments cannot interfere without
triggering claims of the priority of fundamental liberties.  A
corollary is that inter-governmental standards-making will always be
hampered not only because of the slow pace of diplomatic negotiations
among governments, but because of the inherent sense of reservation
among participants in such forums regarding the much greater liberty
of governments to act in the international arena without being subject
to the claims of fundamental rights which have priority within
national governments.


      I.A.3) Addressing "Enhanced Cooperation" Given This
Characterization of the Nature of International Governance

When we recognize the unique nature of the international context in
these terms, we gain insight to some of the problems addressed in the
May 18 CSTD proceeding on enhanced cooperation.

Parminder Singh, of IT for Change, advocates an intergovernmental
approach to Internet governance, reflecting the recommendations from
India.  He properly characterizes multi-stakeholderism in terms of
representation and characterizes various stakeholder groups
distinctly, calling for their roles in the transnational governing
structure to be based on this understanding.  He justly notes the
predominant influence of the US, as well as of monopoly communications
providers in the current arrangements, and prescribes democracy as a
solution.  All of these points are valid, and in fact the notion of
representing types of groups of people as such has long been
understood as a dubious proposition.  But neither the terms
multi-stakeholderism nor the internal notion of representation give us
the insight we need to understand how best to frame international
governance related to the Internet.

Anriette Esterhuysen, of Association for Progressive Communications,
notes the confusions among participants in the discussion over whether
enhanced cooperation is already taking place or not, recognizes the
disparities in power and participation among countries, and mentions
questions regarding compliance with global agreements, including human
rights.  She also calls for greater participation by business, civil
society and the technical community while noting that many
stakeholders have no real voice yet.  Clearly governments seeking to
act in relation to the Internet do not think that real governance that
they would call enhanced cooperation is taking place.  And human
rights and other international agreements are less binding among
independent sovereign nations than legal terms that may be established
within nations -- but this is in the nature of the international
arena, and human rights agreements can't actually serve the same
function there that they do in national contexts.

Markus Kummer, of the Internet Society, recites certain
characteristics of the Internet and the bodies currently serving as
its stewards, noting that they are distributed, just like the
Internet, with no single organization in charge, and the overall
process are open, bottom-up, freely accessible, public and
multi-stakeholder.  He notes that there are presently two tracks, the
Internet Governance Forum, which has a narrow, advisory scope under
its current formulation, and the as-yet defined "enhanced cooperation"
notion, and simply calls for enhanced cooperation to be understood as
learning to work together and find solutions that have real impact on
peoples' lives.  For the reasons I give above, the Internet Society
faces the greatest existential stakes in the discussion regarding
Internet Governance -- but the reason for this is specifically because
the kind of inter-governmental body that is contemplated to address
the broad range of public policy issues broached by the WSIS
statements, is unmoored by the limits on governmental overreach that
are in place within free national contexts.  The characteristics of
the Internet and the presently recognized steward bodies for the
Internet that he outlines are specifically at risk.

Marilia Maciel, of the Center for Technology and Society in the
Getulio Vargas Foundation of Brazil, notes the problems of
privatization of regulation, disparities in decision-making
involvement across regions, and the politicization of the issue of
Internet governance, and calls for change that reflects principles of
transparency, accountability and multistakeholder participation, while
finding the notion of enhanced cooperation under the UN uncomfortable,
mostly in reference to those same principles.  She calls for a new
kind of shared decision-making process.  The problem of UN involvement
is likewise a reflection of the same difference: the people do not
have the same recourse in the international arena, and the
non-transparent behaviors we find governments exhibiting in the UN
reflect the greater liberty to act as governments untrammeled by
constraints they are held to within their national contexts.


      I.A.4) Key Characteristics of the Internet Relevant to
Governance and Development

The most important features of the Internet that pertain to the
questions of international governance and questions of what we are
setting up and what we want to foster in terms of technology when we
undertake various approaches to development, are 1) that it is defined
in terms of principles of interoperation between networks, 2) that the
resulting platform is a general purpose platform, 3) that it is
available as a general purpose platform to end users, and 4) that it
enables general purpose connectivity directly between end users
throughout the globe (or beyond), to all other networks that
interoperate on the same terms.


      I.A.5) Formulating International Governance for the Internet

With these principles in mind, along with a proper recognition of the
nature of international governance, it may be possible to articulate
governance that provides for the Internet in a context that maintains
its technical and liberty characteristics, while also providing an
inter-governmental context that can address public policy issues that
may affect the Internet.

        I.A.1) i. Nationally-hosted Internet Oversight Bodies

It would be possible to have oversight of the Internet explicitly
assigned to national bodies as their hosts.  Their hosts could rotate
among nations as well. These bodies can prove their worth by their
conduct and by the merits of the interoperable technical standards
they foster.  The scope of these bodies can be defined in technical
terms on the basis of the above listed characteristics of the
Internet.  The scope of the work of these bodies would not address
public policy concerns that either enter within networks or require
government authority.


        I.A.1) ii. A Technical Standard for Notifying End Users
Whether They Are Accessing Endpoints on Networks that are Not Open and
General Purpose

It would be in scope to have a body like this, hosted at the national
level, that would develop a standard for notifying end users when they
are accessing endpoints on networks that limit the general purpose
platform, using technical and determinate criteria. This kind of
standard would allow the extent to which there is real general
purpose, open Internet connectivity available in every sense to be
known.

Users could be notified they are accessing endpoints on networks that
are non-general-purpose, by a comprehensive set of criteria -- from
blocking or monitoring of ports, particular applications, or servers;
to whether upload and download capacity are asymmetric, or whether
capacity caps are in effect; to whether general purpose,
application-agnostic traffic can be impinged on by specialized
services on the same lines, or whether the lines are subject to
traffic shaping based on application or content; to whether the
network is on lines that are shared by regulation, or whether network
neutrality is established by regulation; to blocking or monitoring
traffic for spam, other undesirable content, copyright infringement,
anti-government activities or for other purposes.  This standard can
also provide for notifications that transient traffic shaping is
occurring because of temporary congestion issues. These modifications
to the Internet standard of interoperation, would need a special
designation to distinguish them from real, general purpose Internet
connectivity, which is defined as general purpose, open connectivity
for end users to every other endpoint on networks that offer the same
conditions of connectivity.

Fleshing out this range of considerations, one more comes to mind that
is a perfect example of the difference of the status of governments in
the international arena: it would be impossible to create a reliable
transnational governance regime supporting a standard that would
notify users whether "transient government monitoring" (or continuous
monitoring, for that matter) is taking place "under emergency
circumstances" -- specifically because, as explained above, in the
transnational arena, governments have "epistemic legal priority," not
the people.  Every government is in the position in the international
context to claim the prerogative to determine that their national
interests warrant measures that invade rights over which within their
national traditions their peoples may have claimed fundamental
"epistemic legal priority" through their original constituent act.


        I.A.1) iii. Inter-Governmental Public Policy Oversight Bodies

Other bodies might also be set up more consistent with the
inter-governmental type of enhanced cooperation that seeks to enforce
public policy concerns that may affect the Internet.  A body like this
can craft agreements that support specific concerns, with provisions
that allow individual nations to articulate under what conditions and
to what parties general purpose Internet connectivity will
nevertheless be available.

We can thereby allow for nations to set up networks that are not
general purpose, open Internet, but which enable notifications of
specialized adaptations or policies that are in place.

The unique feature of this arrangement is that it provides, to some
extent, for the peoples of free nations to claim their fundamental
rights. Individual nations can exercise their prerogatives regarding
compliance with these intergovernmental rules on public policy issues,
but more importantly, this arrangement allows for keeping the recourse
to the priority of fundamental rights that people within free nations
presently enjoy.  While their executives might continue to exercise
their international treaty powers in ways that override the forms of
recourse that their peoples more clearly enjoy within their nations,
this distinction will at least allow that issue to be raised.


    I.B Development

      I.B.1) Real Internet, ICTs and Development

Besides the issue of Internet governance, the remaining opinions and
topics or themes addressed in the third draft of the
Secretary-General's Report for the WTPF deal with development,
particularly in terms of developing and diffusing ICTs globally; or
they address policy issues more directly related to the Internet in a
technical sense.

The same characteristics that we have emphasized above in relation to
articulating how to set up governance structures related to the
Internet, also provide critical insight into development issues,
specifically as regards the question of what kind of communications
infrastructure is being set up: we need to make sure that development
efforts establish a real Internet platform and not something else.
For instance, national communications providers that have a privileged
status in relation to physical infrastructure or the public right of
way are not providers of Internet connectivity, but providers of a
national intranet.  There is no Internet except among autonomous
network providers that must interoperate to provide Internet
connectivity to their end users.

However, in this report, the emphasis is on fostering development of
ICTs in general rather than broadband infrastructure as such, which
was the focus of the US's position for WCIT. This emphasis on the
broader term, ICTs, presents a somewhat different problem in that it
reflects the broader framing of the overall WSIS project, which
expresses goals of addressing numerous global public policy concerns
related to the Internet, but which uses the term ICTs far more often
than the term Internet.

      I.B.2) Need to Help CWG-Internet Define "ICTs"

The Secretary-General's Third Draft notes in section 1.1.4 that
international Internet-related public policy issues are developed by
CWG-Internet, which the Council established under Guadalajara
Resolutions 102 and 140, the latter of which assigns the ITU a leading
role in the WSIS Tunis Agenda and asks the Council to oversee the ITU
in this role, and among other things to have a working definition of
"ICT" be developed to be provided as an input to the next
plenipotentiary conference in 2014.  CWG-Internet's membership is
limited to Member States though it is open to consultancy with other
stakeholders.

We should be addressing this definition at the WTPF in order to
clarify how to address the questions of Internet governance and
fostering of the key ICT of Internet connectivity.


      I.B.3) General Usage of the Term "ICT" In Relation to the WSIS
and the CSTD's Frame for Development

The general category of ICTs that we find in the Secretary-General's
WTPF Report needs to be delineated and defined while we consider
international development in relation to the Internet. The use of the
term ICT should not allow the key distinctions to be overlooked,
whereby the policies developed among governments in the international
arena will be able to gain priority over the characteristics of the
Internet. The only mentions of Internet in the CSTD's assessment last
May of the progress in implementing the WSIS's provisions, are in the
term "Internet governance," the Internet Governance Forum, and
references to public policy issues that pertain to the Internet under
the heading of enhanced cooperation.  The indicators for WSIS
assessment mentioned in that report are phrased as measures of ICTs.
The two Secretary General reports cited in the CSTD report, on WSIS
progress and innovations in financing of development, both subordinate
Internet to the term ICTs, and do not relate it to infrastructure.
The CSTD's resolution on Science and Technology in Development, issued
at the same time, describes innovation policies with no mention of the
Internet platform at all.

ICTs and Internet-related public policy issues also need to be dealt
with in terms of how they relate to the nature of the Internet and the
nature of the difference of the role of the people in the
transnational arena.

We should be recommending to the US's delegates as they prepare topics
for discussion at the WTPF and other future proceedings of the UN and
ITU how to address the distinctions between traditional
telecommunications, the Internet, and ICTs, as well as how public
policy issues that may impact the Internet fit into the scheme.


    I.C. National Telecommunications Incumbents

In the meantime, we see a general overlooking, amid the confusion over
international governance and development in relation to Internet
connectivity, of the role of the national incumbent.  The sorting out
regarding governance and development that we get by being clear about
certain key principles of the nature of the internet and
standards-making, also informs a proper understanding of the
incumbent's role in the international context.  We have already
alluded to the capacity for international governmental bodies to
legitimize the role of national communications providers that have a
privileged relationship to broadband physical layer infrastructure and
the public right of way.  Telecommunication markets that are
vertically integrated from physical layer up are not general purpose
Internet platforms, and they are not open to independent, competing
providers interoperating based on the Internet standards.


II. Fixing the Frame: Plenipotentiary Acts

Finally, these considerations all need to be related to the
plenipotentiary resolutions that would be affected, and which are
guiding the entire process of engaging stakeholders in rationalizing
the WSIS project.  Immediately below I reiterate the main
considerations I've raised.  Below that I have provided an outline
showing the Guadalajara Resolutions that are pertinent:

   II.A. Key considerations for preparing the Secretary-General's
Report for the WTPF:

      - The unique nature of the international arena from a democratic
standpoint

      - The nature of standards-making and how it relates to the
unique nature of the international governance context

      - The key characteristics that let us understand whether we are
providing for Internet in both the governance and development contexts

      - The need to delineate Internet from the general term ICTs as
we address development issues

      - The proposed framework for Internet governance, with two
bodies whose relationship to the Internet and its stewardship will be
defined in terms of these key characteristics of the Internet, one of
which will address public policy issues entailing governmental
oversight, and with the development of a general standard for
notifying when users are accessing networks that are not fully open
and general purpose by a comprehensive set of technical criteria


   II.B. Guadalajara Resolutions That Would Need Review and Revision
In Order to Address International Governance of the Internet
Appropriately


      II.B.1) Most Notable and Relevant:

Resolutions 100, 102, 130, 135, 140, 174, 178: ITU's role re
international public policy issues pertaining to the Internet, in
building confidence and security in use of ICTs, in development of
telecommunications/ICTs, providing technical assistance to developing
countries, implementing regional projects, implementing the outcomes
of the WSIS, international public policy issues relating to illicit
use of ICTs, in organizing work on technical aspects of
telecommunication networks to support the Internet

Resolution 101: IP-based networks

Resolution 133: role of Member State administrations in management of
internationalized domain names

Resolution 172: overall review of implementation of the outcomes of the WSIS

Resolutions 131, 181: ICT Index and community connectivity indicators;
definitions and terminology relating to confidence and security in
ICTs

Resolutions 122, 123, 170, 177: evolving role of the World
Telecommunication Standardization Assembly; bridging the
standardization gap between developing and developed countries;
admission of sector members from developing countries to take part in
the ITU-R and ITU-S sectors; conformance and interoperability

Resolution 138: the Global Symposium for Regulators

Resolutions 71, 72, 151, 157, 162: Strategic plan for the Union
2012-2015; linking strategic, financial and operational planning;
implementing results-based management; strengthening project
execution; the independent management advisory committee

Resolutions 14, 59, 163: Recognition of rights and obligations of all
Sector Members of the Union; requests to the International Court of
Justice for advisory opinions; Council working group on a stable ITU
Constitution

      II.B.2) Other Resolutions Also of Note:

Resolutions 2, 146, 171: WCIT; review of the ITRs; preparations for WCIT

Resolutions 64, 137, 139, 180: non-discriminatory access to modern
telecommunications/ICTs; Next generation network deployment in
developing countries; telecommunications/ICTs to bridge the digital
divide; facilitaing transition from IPv4 to IPv6

Resolutions 35, 36, 70, 98, 136, 175, 179, 182, 183, 184:
telecommunications/ICTs for protection of the environment, in service
of humanitarian assistance, in promotion of gender equality and
empowerment of women, for safety and security of humanitarian
personnel in the field, for monitoring and management in emergencies
and disasters, for persons with disabilities, including age-related
disabilities, in regard to climate change, in e-health, and
facilitating digital inclusion initiatives for indigenous peoples

Resolutions 7, 25, 30, 34, 58, 124, 128, 143: various resolutions
addressing regional initiatives and countries with special needs

Resolutions 32, 33, 37, 125, 126, 127, 159, 160, 161, 173: Various
resolutions regarding special technical assistance to troubled
locations

Resolutions 11, 68, 75, 114, 145, 169: Miscellaneous




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