[governance] ITRs

[parminder]

Hi All

IT for Change had prepared our initial response to the current ITRs 
draft, and shared it with some civil society groups. Although the 
following is written as an email based input to the proposed ITR 
discussions at the BestBits civil society meeting, a version of it was 
also shared with the Indian government. Thought may be useful to post it 
here as well. parminder

(begins)

We see four sets of issues that are most important, and they 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 havent). 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 telecommunicaiton 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, becuase 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.

(ends)

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