IT for Change's initial position paper on the current ITRs draft

We see four sets of issues that are most important in terms of the forthcoming ITU meeting, World Conference on International Telecommunication (WCIT), which will revisit the International Telecommunication Regulations. These are as follows:

1. State control over Internet routing system

This is perhaps the single most controversial issue in the ITR debate, even more than the ITU-ICANN issue discussed above. It is rightly feared that ITRs will be used by authoritarian countries like China and Iran to develop strict state control over the routing of Internet traffic which today is globally ordered to a large extent. Earlier inputs of these countries into the ITR draft were rather more explicit in this regard. Even though rendered relatively bare-bone in the current draft, there is significant text still there that can be used for a tightly controlled Internet routing system, which if taken to its logical end can lead to nation-wise balkanisation of the Internet.

In the current draft, it is the text pertaining to section 30 which deals with this issue. Options range from 'states right to know which routes are used', to 'states determining which routes are used', to 'imposing any routing regulation in this regard'. My proposal is to go with one of the listed options which is to suppress section 30 altogether; so, no language on this issue at all.

2. ITU and CIRs management

One of the most important issues is whether ITU is seeking to, and vide the ITRs be enabled to, take up the functions being performed by the distributed CIR management system as it exists at present.  In the current draft, section 31 A is of crucial import in this regard of ITU's feared encroachment of the remit of the ICANN plus system . The options in the current draft regarding this section range from 'naming, numbering, addressing and identification resources will not be mis-used' and 'assigned resources would only be used for the agreed purposes' to 'all ITU recommendations will apply to naming, numbering, addressing and identification resources' (existing or also future ??) to 'nation states, if they elect to, can control these resources within their territories for the sake of international communication'.

If ITU recommendations are made vide the new ITRs to apply to names and numbering systems, this may tend towards a creeping encroachment on ICANN's remit. One option in the current draft lists a set of specific ITU recommendations that will apply (these need to be studied individually which I haven't). Other options are more open ended, which means future ITU recommendations may also apply, which, may mean that ITU can formally enter into doing and/or supervising ICANN's work. This becomes more problematic when seen along with draft options that make ITRs obligatory and not just a set of general principles. We should speak up against all such efforts to take over, or even substantially affect, the current distributed system of CIRs management.

3. Definitional issues in the ITRs; telecom or Internet

Resolving this issue might take a good amount of out time. The issue is really tricky. Putting Internet under telecom, and thus under ITRs and ITU has its problems and a completely new kind of global regulatory system may then be built over it, which would hurt the way Internet has developed and needs to develop. However, it is also difficult to just argue that, when we are in times we are in, Internet traffic will be excluded from telecom definition, because that would beg the question - what then remains of telecommunication in the era of increased IP based convergence. Is then ITU to close down as traditional telephony disappears. Perhaps more importantly, correspondingly, does this new definitional approach also mean that national level telecom regulatory systems like FCC and TRAI wind up sooner or later.

We dont think we can afford to be co-opted into the efforts seeking complete deregulation of the entire communications systems that, for instance,  are at present being made in the US, which employ definitional logics of a highly dubious kind (like classifying Internet not as a telecommunication but as an information service and thus not subject to common carriage or net neutrality provisions, and similarly rescuing VoIP services from universal service obligations.) At the same time, it is necessary to resist providing constitutional basis to the ITU which can be used to for control of content and application layers. This is the dilemma. What would the implications of putting Internet under telecommunications in the definitional and other sections? What does adding 'processing' signals to just sending, transporting and receiving  signals does to what happens in the future vis a vis ITU's role? (These are all existing optional language in the current draft.)

This is something we really may have to spend a lot of time on. Our tentative suggestion is that we find a way whereby the transport / infrastructural layer is included in the definition of telecommunication (which also is closest to reality) and thus in ITR's remit. At the same time content and application layers are explicitly excluded. Contributing the right language in this respect may be one of the most important things that we can do. But as I said, this requires a lot of thinking and discussion among us.

In trying any such definitional separations, the issue of 'security' would become a sticking point. In fact, 'security' may be an issue we may have to separately treat in our submission, because there is also a lot of tricky language in the current draft around this issue.

4. Net neutrality or an open Internet

We should certainly speak against the ETNO proposal of a 'sender pays' arrangement. However, we should seek to go beyond it. Everywhere it is recognised that net neutrality is a regulatory issue. Net neutrality cannot survive with regulatory intervention, or at least some kind of normative soft pressure from regulatory quarters. So if there is an issue called 'global net neutrality' (CoE's experts report) then there is perhaps some role for a global regulatory system - if not of enforceable rules, at least for providing normative frameworks and general principles. And net neutrality concerns the transport layer, net neutrality concerns can be accommodated even while we do the above mentioned 'definitional separations' about what part of the Internet is telecom and which not.

 While even US telecoms are opposed to the ETNO proposal (for reasons one can appreciate) what they themselves propose in the US is the sender pays principle. Is it possible to use the ITR text in some way to promote a normative framework for net neutrality or an open Internet - or even more specific things like open peering and the such.

I read in the CDT's document about problems with use of QoS term which can become the normative indication for violation of net neutrality and it should be opposed.

5. Some sundry issues

Apart the issue of 'security' mentioned above, which may require separate treatment, I can see two other important issues. One, whether ITRs should stay as general principles or they should become mandatory. These is alternative language in the current draft on these option. I think we should seek that ITRs stay as general principles. Second, if the principal parties that are subject to ITRs should remain 'administrations' or be changed to 'member states and operating agencies'. I think the telecom environment has become complex and diverse enough to require the more flexible term 'operating agencies' to be included.