[A2k] Fourth Draft Published -- Re: On Developing Opinions to Frame the World Telecom Policy Forum

Seth Johnson seth.p.johnson at gmail.com
Thu Jan 10 11:46:56 PST 2013

> http://www.itu.int/md/S12-WTPF13PREP-R-0005/en


On Mon, Jan 7, 2013 at 6:25 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> 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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