[governance] ITRs

[Lee W McKnight]

I will throw a few cents in this pot:

1st cent: - the information service vs telecommunications service definitional debate is indeed something of a how many angels fit on the head of a pin discussion; it is one however that has been going on in various FCC regulatory proceedings for, oh, 50 years.  But like other theological discussions, for some belief systems, it really matters.  

- It is that exception from regulation for data processing services which permitted the the data/packet switching net to be born and grow.  Telcos can and do provide regulated services via IP packets, but if one is in the business of providing other forms of information services which use IP...well then that is another thing.  

Of course other countries argue about other things and may not quite get why the definition of 'information service' versus the definition of 'telecommunications service' is such a big deal in the US, but it is and is in fact the end of the Internet as we know it (under US law) should the Internet lose its info service status.   

Anyway, none of that is news to some around the ITU, who would love to have the Internet become just a mega-telco thing.  Admittedly, if US regulators and the courts can agree on the telecoms v info service issues in the next 10 years...they will have made astounding progress compared to the last 50. 

2nd cent: The end or transition away from the public switched telecom network is well underway in the US; and many legacy regulations are indeed called into question by the transition. I spoke at an FCC workshop in the topic almost a year ago; but the planning has been going on for much longer than that. With universal service policies successfully reformed by the FCC earlier this year to promote broadband, the transition need not have negative effects for disadvantaged social groups. In fact we might all agree it is a good thing if telcos no longer can collect billions in subsidies for pretending to provide universal service, when not really doing anything except padding their profit margins as they did for the past decade with outmoded universal service policies being a profit center for them (I strongly suspect). 

So in sum, I suggest proceeding with extreme caution around the ITRs since every word used and agreed to there, like 'telecommunications' or 'information,' can have a huge impact on users of the net of nets.

Lee

________________________________________
From: governance-request at lists.igcaucus.org [governance-request at lists.igcaucus.org] on behalf of Suresh Ramasubramanian [suresh at hserus.net]
Sent: Monday, October 29, 2012 8:57 PM
To: governance at lists.igcaucus.org; Paul Wilson
Cc: parminder; Carlos A. Afonso; governance at lists.igcaucus.org
Subject: Re: [governance] ITRs

I do agree with Paul about the pitfalls of trying to bring the transport layer under the ITRs.

And I seriously doubt OECD would consider their committees or working groups to be any sort of regulatory organisation, if that was what you meant.  Peer review, analysis, best practice, metrics .. How or why are those being dragged into a discussion of regulating any part of the Internet?

--srs (iPad)

On 29-Oct-2012, at 23:38, Paul Wilson <pwilson at apnic.net> wrote:

> Parminder,
>
> On the topic of network neutrality I will only comment that it is the Internet of today which affords us the luxury of having a debate at all.
>
> Prior to the Internet, the concept hardly existed, and was not a reasonable expectation of any of the networks which existed then (which typically bundled application and connectivity services together, and then charged extra for new applications and for interconnection).
>
> It is also possible to imagine a future "Internet", featuring imposed barriers between countries, or regulated barriers between companies, or licensing of applications, or featuring a mishmash of different approaches to all of these; and in which network neutrality has become a forgotten concept, and the debate is no more.
>
> Even if I don't have a position, I prefer that we can continue to have a debate :-)
>
> Paul.
>
>
>
> On 30/10/2012, at 3:09 AM, parminder wrote:
>
>>
>> Carlos and Paul,
>>
>> Thanks for your response.
>>
>> First of all, let me say that our, IT for Change's, real view on this matter is that new ITRs should have been a part of a larger look at how Internet works and what is necessary to be done in terms of its governance in public interest, more so from the viewpoint of those who are currently marginalised, whose interests we seek to espouse. This was, and is, necessary now, since Internet is  no longer the 'interesting new thing' that it was 10-15 years ago. It is today a defining force shaping our societies, our social structures, and its power relationships. We at IT for Change, and our partner networks, are unable to satisfy ourselves that the way Internet has grown and shaped in the last few years is the best way for it to go, in terms of economic and social justice. It is increasingly causing a greater rather than lesser concentration of power, which trend is, in our view, not only possible to check, it is our collective duty to do so.
>>
>> Coming back to Internet governance, over the last few years we should have beendiscussing (rather than stalling such discussions) what part of the Internet needs what kind of governance - which is just, democratic, pluralistic etc. Not that we would have immediately come to the perfect solution, but we would have been closer to it, and, we would have have been closer to having a better understanding, perhaps even some degree of consensus, regarding what should go into the ITRs and what should not. Having a discussion on whether telecom regulators should have jurisdiction over transport aspects of the Internet or not 5 days before public comments into the ITU process closes is not the best way to be dealing with this issue. I do believe, for instance, that ITR amendments should have accompanied some kind of an agreement with everyone accepting the appropriateness and legitimacy of the current distributed system of DNS and technical standards management of the Internet, with perhaps a statement of a few general principles on the areas in which further evolutionary improvements need to be sought. The CIRs oversight issue needs to be resolved, at least discussed with all sincerity, at another level, and so also the issues of broader Internet related public policies, the mandate of OECD's CICCP and the proposed mandate of CIRP. All of this should be a kind of one package, because what we do in one place is linked to what is done or not done in another.
>>
>> Instead of taking such an holistic, and allow me to say, sincere, approach, what actually is sought be done is to treat ITR amendments as a kind of ugly emergency that needs to be given a fire-fighting response, and soon, when the fires are doused, we can be back to the merry neoliberal times of unbridled growth and shaping of the Internet in a manner that further entrenches existing power, without any kind of public interest oversight or intervention.
>>
>> Sorry for the lengthy disclaimer, but it was necessary for it to be stated to frame my response to the immediate issue at hand; whether any part of the Internet (meaning here the transport/ infrastructural) should to be within ITU's remit of not.
>>
>> For us, the basic question that we need to address here is; Is the availability a net neutral Internet to be considered just as a normal commercial service or good, subject to normal laws of commerce alone, or is it to be considered at a special level, as a guaranteed, universal service (which is free, subsidized etc when required), and whose qualities, like net neutrality, and other kinds, just have to be maintained, and if needed, will be enforced through a special dedicated system, as for instance telecom regulators do for telecom.
>>
>> How we proceed further depends on what response we give to this question. I know Milton's response to this question, but for others who think that Internet is not just like any other commercial good, and its basic availability and nature (net neutrality etc) has to be ensured, we then have to decide that either this is ensured by the existing telecom regulators, or we set up a new Internet regulatory authority.
>>
>> At this stage, we can make a distinction between the Internet as a basic infrastructure, which, I think requires the above protection, and its content and application layers where the barrier to entry, competition dynamics are 'normally' of a qualitatively different kind. This is why the content and applications layers should be kept out of the regulatory purview.
>>
>> And if indeed the transport/ infrastructural layer of the Internet needs to be regulated, now with increasing IP based convergence, since telecom regulator soon will have little non IP based infrastructure to regulate, it goes to reason that they regulate the transport layer of the Internet, which definitionally continues to be considered as telecom (which in fact as per existing definitions in the existing ITRs, and not only in ITRs but as per telecom statutes in most countries, is does indeed already count as telecom).
>>
>> For those who want ITU not to have remit over the transport/ infrastructural layer of the Internet, the question is; do they also want national level telecom regulators to not have anything to do with even with the transport part of the Internet. This would so much delight the telecom companies. In the US, they are  fighting precisely this case against FCC's rulings on net neutrality, and I recently heard a guy from a telecom association in India mutter something to a similar effect.
>>
>> There will be no net neutrality without a regulator for the Internet's transport layer. I think this much is understood by all net neutrality supporters. And there will be no universal service obligations, cross subsidisation for under served regions etc. We have to indeed be careful about what we ask at the ITU's ITR discussions, because the chickens will soon come home to roost, at the national level, whereby we would have perhaps permanently compromised possibilities of public interest regulation over the transport layer of the Internet, including any possibility of ensuring net neutrality.
>>
>> US citizens perhaps have a vote between no net neutrality (elect Romney) or  weak version of net neutrality, that doesnt extend to mobiles (re-elect Obama), but for the others less fortunate, international norms in this area are something that may be among the few positive hopes to clutch to. Getting Internet's transport layer out of the definition of telecom would basically set a norm that will soon travel downwards to the national levels, of course on the wings of the powerful multi national telecoms, to challenge the remit and authority of national telecom regulators to enforce any kind of net neutrality.
>>
>> parminder
>>
>>
>> On Monday 29 October 2012 06:40 PM, Paul Wilson wrote:
>>> Thanks Parminder for a mostly interesting statement, also to Carlos for the useful comments.
>>>
>>> Regarding part 3, whether it's a case of division or composition, it is really essential to be clear on the layers under discussion.
>>>
>>> In the TCP/IP model, we have layers called Link, Internet (Network in OSI), Transport, and Application.  The Internet layer corresponds to the IP protocol, and the Transport layer to the TCP protocol.
>>>
>>> Does IT for Change really suggest that the TCP layer should be placed under the ITRs' remit, and if so, how and why?
>>>
>>> On the other hand, it's fairly common to describe Layers 2 and 3 together (i.e. TCP/IP) as the Transport layer, and let's be clear that this layer *IS* the Internet.
>>>
>>> It's essential to understand that the network at these layers did not "just happen" and cannot be taken for granted, as if it is stable and constant.  Today's Internet - global, universal, open and neutral - is a direct product of and is maintained through the active management of this layer, and it certainly could change, very fundamentally, under a different approach.
>>>
>>> I have to assume that IT for Change is not asking for TCP/IP to be managed under the ITRs, but Parminder, I suggest you need to clarify, because as it stands, this part of your position should definitely be the most controversial.
>>>
>>> Paul.
>>>
>>>
>>> On 29/10/2012, at 9:48 PM, Carlos A. Afonso wrote:
>>>
>>>
>>>> Hi Parm, a few quick comments below.
>>>>
>>>> fraternal regards
>>>>
>>>> --c.a.
>>>>
>>>> On 10/29/2012 06:27 AM, parminder wrote:
>>>>
>>>>> 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.
>>>> Entirely agree. However, this is already done by certain countries independently of ITU's or any other international agreement, and will continue to happen.
>>>>
>>>>
>>>>> /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.
>>>> I think there is overall consensus that the current names and numbers management system, despite its enormous mishaps (e.g, the recent problems in launching new gTLDs) and a "pluralist" governance which is biased towards the domain name business is currently operationally sound and should not be replaced. If we want a single example of ITU's lousy meddling into the domain name realm, just review the ENUM fiasco. Instead, we have to continue to press ICANN and its contractor (the USG) for true pluralist internationalization -- a major challenge clearly recognized by the new CEO, Fadi Chéadé.
>>>>
>>>>
>>>>> /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 spen
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