Just Because the Sky Isn’t Falling, Doesn’t Mean It Can't

December 13, 2012
Guest Post

by David G. Post, Professor of Law, Temple University, Beasley School of Law

As you may have heard, the UN wants to take over the Internet. Two questions:  1. Really?  And 2. Should we be worried?

On 1: The vehicle for the alleged takeover is the World Conference on International Telecommunications, now underway in Dubai. The WCIT has been convened by the International Telecommunications Union (ITU), and it involves, in the ITU’s words, “review of the current International Telecommunications Regulations (ITRs), which serve as the binding global treaty designed to facilitate international interconnection and interoperability of information and communication services.” 

It sounds harmless enough. The ITU (and its regulations) go back almost 150 years. In the late 19th and early 20th century, international telecommunications meant telegraphs and telephones, and the ITU was created by 20 European countries to standardize telephone/telegraph interconnection protocols so that a telegraph message or phone call placed in London could be received intact in Rome (and, somewhat later, Rio de Janeiro and Riyadh). It’s not a trivial task, involving both technical standards and economic arrangements (to work out a system for allocating transmission charges), and by all accounts the ITU performed it well. Because telecommunications facilities were generally state-owned and state-operated for most of this period in most of the world, the ITU was constituted as a kind of “treaty organization,” one to which nation-state governments sent official representatives from the Ministry of Telecommunications (or its equivalent) to negotiate with their counterparts from other countries.  After WW II, the ITU was absorbed into the United Nations as a “specialized agency.”

The Internet – surely the most interesting development in the rather stodgy world of international telecommunications in a long while – arose and spread across the entire globe without any ITU oversight or involvement whatsoever. The Internet Protocols – the standards and operating processes and principles that defined, and that continue to define, the global Internet, and that allow that network to do the remarkable things it does – were developed entirely outside of ITU-sanctioned or ITU-organized processes. Not that the ITU was inactive during the formative years of the Internet; indeed, it produced its own set of inter-networking protocols (known as the “Open Systems Integration” protocols) in the mid-1980s, the official, UN-sanctioned entry, as it were, into what was then the heated world of competing inter-networking schemes.  The ITU’s Internet never became “the” Internet, i.e. the single, global communications platform that we now take for granted; in the eyes of many observers (myself included), that was not a coincidence.  the ITU’s scheme was based, unsurprisingly, on a network architecture  that had been developed for international telegraphy and telephony – one that assumed centralized control of within-country networks and single points of contact (gateways) between those within-country networks.  Given the choice, users – overwhelmingly – found more potential in joining an inter-network whose architecture – open and entirely decentralized – was very, very different – and the rest, as they say, is history.

Over the past 20 or 30 years, the ITU has continued its work on standards and protocols for the legacy telephone and telegraph networks. But an “International Telecommunications Union” that can only influence development of those legacy networks is doomed to irrelevance in the 21st century, when most of the interesting action in international telecommunications has been and will continue to be on the Internet.

Which brings us to Dubai and the WCIT. The ITU is using this Conference to assert a generalized “jurisdiction” over the Internet and over the Internet Protocols, and it is entertaining, for the first time, proposals from Member States that would modify portions of the Internet’s technical underpinnings within its process for revising and amending the International Telecom Regulations.  The specifics of the various proposals are complicated, and understanding exactly what is being proposed, and by whom, would be difficult even if the ITU operated transparently (which it does not).  (I’ve provided some resources below where you can get additional information about the various proposals that appear to be on the table, if you are interested).  Some of the proposals reflect features you would expect to find on an Internet designed by the governments of China, Russia, Iran, or Congo:  increasing capabilities to “sniff” and trace Internet traffic from sender to recipient, restrictions on the routing of Internet communications, and means to more easily collect and share subscriber identity information.  Others would give the Member States of the ITU a greater say in the operation of the Internet’s naming and numbering system – one of the truly foundational parts of the Internet infrastructure.  Others would modify the current scheme (known as “peering”) pursuant to which network operators pass data from one network to another across the Internet, converting it into a “sender pays” model more closely reminiscent of arrangements for existing telephone network traffic.

So: should we be worried about all this? The Internet Society, Global Voices, the Center for Democracy and Technology, Google, columnist Larry Downes at Forbes, and a host of others have been beating the drum to rally the opposition, pointing both to the appalling nature of particular proposals, and the general ill-advisedness of injecting the UN (and UN politics) into Internet “governance.” 

Prof. Jack Goldsmith takes something of a contrarian view. As bad as many of the proposals are, he reminds us, they’re just proposals, and many are extremely unlikely to attain the requisite majority support among the ITU’s Member States. And more significantly, he notes that even if they are enacted, ITRs are not self-enforcing; the ITU has no army or other mechanism to enforce any of its “regulations” other than by adoption by individual Member States, in their own implementing rules and regulations. The ITU, in short, can’t really do anything to the Internet that we don’t want it to do.

There’s something to be said for both sides. Some of the proposals would indeed have dreadful consequences for free expression over the Internet, and if they are indeed unlikely to pass, that is, in part, a consequence of the drum-beaters who have shone a light on them. (It’s what I have called elsewhere the “Reverse Tinkerbell” effect– instead of becoming true as more people believe it to be true, it becomes false; the more people who believe that the ITU is going to act badly, the more light that will be shone on what it is up to, and the more light that is shone on what it is up to the less likely it becomes that the ITU will act badly.)

And it’s also correct to point out that the Internet is a hard thing to “take over.” The ITU (or anyone else, for that matter) can promulgate all the “Internet Protocols” it wants to – but at the end of the day, they only become truly binding on Internet users when they’re adopted and implemented by Internet Service Providers around the globe (whether under legal compulsion or voluntarily).

But to me, Goldsmith’s reaction misses, or elides, an important point, one that will (I hope) become the focus of debate and discussion over the next decades. To begin with, we all derive incalculable benefits from having a single global communications platform that admits all users and allows all users to communicate with all other users, wherever they may be located.  Anything that interferes with that principle is presumptively – in my book – a bad idea. Even if the ITU were nothing more than a gathering place for the exchange of network design ideas among those who would fragment the global Internet along national boundaries, it might be time, as Andrew McLaughlin has persuasively argued here, to start to think about dismantling it altogether.

And I continue to believe that there is an even more fundamental principle in play in Dubai.  Who should make the rules that bind all Internet users? The Internet has, in just 30 years or so, become an immensely and unimaginably valuable thing – valuable in terms of dollars and cents, and valuable for any number of other reasons not so easily monetizable.  (See Spring, Arab)  That means that control over the processes by which its rules – the ones binding across the entire inter-network – get made is also an immensely and unimaginably valuable thing, if you could somehow get your hands on it, or even a piece of it.  Once it’s in play – and WCIT suggests that it is now in play – how do we protect it? From what and from whom do we protect it?

And hardest of all, perhaps: Who are “we”? Who gets to decide how the rules binding across the global network get made? Goldsmith writes that the WCIT “won’t affect what is really important, which is the bargaining power of nations for control over the network.”  Is that what’s really important?  I would have thought that what’s really important is that everyone has an equal right to participate in the processes by which rules binding upon them get made, and  that whatever processes are used to make Internet-wide rules should somehow reflect the views and preferences of Internet users – not the governments that sometimes do, but often do not, reflect those views and preferences.  Goldsmith and I have had a version of this argument before, and I continue to believe that Goldsmith’s Realpolitik position – which to my eyes amounts to “they’ve got the guns, so they make the rules” – strikes me as unprincipled. The Internet Protocols constitute a new language through which the peoples of the world can communicate with one another; by what right has it become the subject of the “bargaining power of nations” to decide its future?  As with English, or Italian, or the system of musical notation or mathematical symbols, even if the governments of the world were to declare, at the WCIT or in the well of the General Assembly of the United Nations, that after due consideration they had reached the judgment that they have the “sovereign right” to make the rules and to decide the future course of their development, I don’t see a principled argument in favor of allowing them to do so. By what right is it theirs, and not a right belonging to Internet users in the aggregate, acting collectively?  You know – the way it was built in the first place? 

* Some references on the World Conference on International Telecommunications

Forbes/CNET columnist Larry Downes has had a series of useful and highly informative articles about the ITU’s plans for the WCIT here, here, here, and here.

The wcitleaks.org site has been indispensable in compiling and distributing documents concerning the various WCIT agenda items. 

The Internet Society and Center for Democracy and Technology pages devoted to WCIT and related matters are also extremely helpful in trying to parse the significance of the WCIT development.