PROPOSED ITR REVISIONS AND THEIR
IMPLICATIONS FOR FREEDOM OF
EXPRESSION ONLINE
Influencing the debate in South Asia
Lea Kaspar, Global Partners and Associates, October 2012
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Contents
Executive summary ..................................................................................................................................................................................................... 3
Introduction ................................................................................................................................................................................................................... 4
ITU and the ITRs – Background ............................................................................................................................................................................... 6
What could change at WCIT ‘12?.............................................................................................................................................................................. 8
Broadening the ITU mandate? ........................................................................................................................................................................... 8
Analysis of key proposed revisions to the ITRs .......................................................................................................................................... 9
Proposed revisions to include reference to the internet in the ITR text ..................................................................................... 11
Proposed revisions to include security-related elements to the revised ITRs ........................................................................ 12
Proposed revisions to mandate pricing terms .....................................................................................................................................13
Proposed revisions to make ITU-T Recommendations mandatory ................................................................................................ 14
Other proposed revisions ............................................................................................................................................................................. 15
Influencing the debate in South Asia ...................................................................................................................................................................16
Advocacy ..................................................................................................................................................................................................................16
ITU Secretariat .................................................................................................................................................................................................16
South Asian governments .............................................................................................................................................................................16
Creating an international normative framework for debate ...........................................................................................................19
Capacity building ..................................................................................................................................................................................................20
Conclusion ..................................................................................................................................................................................................................... 21
Bibliography .................................................................................................................................................................................................................22
Annex ..............................................................................................................................................................................................................................23
Sample letter to request to join a national delegation to the WCIT ...................................................................................................23
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Executive summary
This regional level study explores proposals to
revise the International Telecommunication
Regulations (ITR) at the WCIT ’12 conference. It (1)
examines the potential implications of proposals
to change the ITRs for freedom of expression on
the internet in South Asia and (2) explores options
for civil society in South Asia to influence the
outcomes of WCIT ‘12.
Our findings suggest that some of the proposed
revisions to the ITRs could have negative
implications for user rights in South Asia. To avoid
potential negative consequences of particular
proposed revisions, we recommend that:
 Proposed revisions to include internet into
the ITRs should be analysed carefully. Their
potential negative effect on multistakeholder internet governance should be
weighed against any of their possible
benefits;
 The following proposed revisions should be
rejected:

Proposed revisions referring to cybersecurity, spam etc.;

Proposed revisions to change the current
pricing mechanisms (e.g. ETNO proposal);

Proposed revisions to make the ITU-T
Recommendations mandatory;
 Should the final ITR text not conform to
international human rights standards,
country reservations should be submitted
and mitigated at the national level.
We believe that it is paramount that the ITU
remains true to its original mandate and the broad
scope of the current ITRs, which have allowed the
internet to develop freely and benefit societies
everywhere.
We further encourage individual nation states to
refer to their obligations under international
human rights and free expression standards as set
out in international law, and in particular Article
19 of the ICCPR as they draft local provisions and
regulations. Furthermore, they are encouraged to
approach the WCIT’12 conference as part of a
long-term strategy to develop an international
internet policy framework that upholds human
rights.
Civil society in South Asia can have a significant
impact in promoting this position. Given the short
time frame, the most feasible activities for civil
society are lobbying their governments to open up
the consultative process, to make their position
papers publicly available, and to invite CSOs to
join their respective national ITU delegations. To
this end, they could engage various stakeholders
at multiple pressure points – including the ITU
Secretariat and South Asian national governments,
either directly or indirectly through lobbying
corporate stakeholders, the media, and the
broader civil society. To increase prospects of
long-term success, building a national momentum
across various civil society groups should be
accompanied by capacity building activities for
activists and users.
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Introduction
This December, 193 world governments will gather in Dubai to renegotiate the International
Telecommunication Regulations (ITRs) for the first time since 1988. The ITRs are a key treaty under the
auspices of the International Telecommunication Union (ITU), a UN agency that coordinates global
telecommunications networks and services. At this year’s World Conference on International
Telecommunications (WCIT ‘12), ITU member states will discuss proposals to adapt the ITRs to the new ICT
environment, potentially to include the internet.
Emergence of a new policy environment. Only ten years ago, it would have been hard to imagine the
intensity of debate currently surrounding this highly specialised and technical body and one of its
conferences. This is a new policy environment that is rapidly replacing the policy vacuum in which the
internet has largely developed and flourished. This trend is likely to intensify as governments, businesses
and civil society seek to exert their influence over the internet and fight to protect their respective interests
in the run up to the World Summit on the Information Society (WSIS) in 2015.
Changing the internet environment is likely to affect our enjoyment of free expression online. The
upcoming discussion at the WCIT ’12 conference is primarily a technical, commercial and, increasingly, a
political issue. However, it is also a free expression issue due to the ways in which the outcomes of this
conference are likely to influence the internet environment. In turn, the changes in the internet
environment have an impact on national-level restrictions on online content and access to internet
infrastructure, both of which are crucial for our enjoyment of digital freedoms.
Protecting freedom of expression online is a global struggle, with specific implications in developing
countries. In less developed countries, internet penetration levels remain low relative to those in the
developed world, despite significant growth in internet connectivity and number of overall users. Even
though India is currently the world’s third largest user in absolute numbers after China and the US with
over 120 million active internet users1, percentage of population using internet in 2011 did not exceed 10%.
Similar numbers were recorded in Sri Lanka (15%), Nepal and Pakistan (9%), and Bangladesh (5%)2. In
comparison, percentages recorded in Scandinavian countries now exceed 90%. This trend reflects broader
developmental problems these countries face.
Access and affordability pose significant obstacles to benefitting from the internet in South Asia,
alongside issues such as lack of electricity, low computer literacy, language barriers, and limited awareness
of the internet. Access to internet services in the region is becoming more affordable, but considerable
barriers in terms of access to internet infrastructure remain, particularly in rural regions and difficult-to1
2
Internet users are people with access to the worldwide network.
ITU 2012
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reach areas. In India, where only 25% of the population lives in urban areas, or Nepal where mountainous
terrain prevails, basic infrastructure is costly to build – raising costs for investors, as well as end-users of
internet services. Bridging the digital divide is a legitimate concern for these countries, and their aim to
address this at the ITU level should not be surprising. However, the ITU is not the best environment to
address these concerns.
Increased government regulation of online content has been a growing trend in South Asia. Countries of
South Asia, while experiencing a boom in ICT and internet use, are also seeing tightening of restrictions on
online content. These restrictions range from repressive law and regulation on censorship, surveillance, and
data protection, to physical attacks on bloggers and online activists. India and Sri Lanka are among the
countries that have passed laws in 2011 and 2012 which negatively affect internet freedom3. The repressive
elements of the Indian IT Act, which already included provisions for censorship and monitoring, have been
further expanded through new regulations to increase surveillance in cyber-cafes. In Bangladesh, the draft
law on the regulation of online media aims to impose exorbitant prices for online media licence fees, which
could have equally damaging effects for online free expression4. Control through intermediaries is also on
the rise in the region. India has emerged as a leader among countries urging telecommunications
companies to reveal their codes or provide other ways for the authorities to intercept their traffic5. And in
Pakistan, government users experienced increasingly aggressive efforts by the telecom regulator to censor
content transmitted via information and communications technologies (ICTs). Furthermore, several
countries in the region have reported physical attacks on government critics. In Sri Lanka, for instance, an
arson attack destroyed the offices of a popular online news site that had supported the president’s
competitor in the 2010 election6. These are worrying trends that should be taken into account while
negotiating provisions that might invite increased government regulation of internet content through the
ITRs.
Some proposals to revise the ITRs are likely to have a negative effect on free expression in South Asia.
The ITU’s work in telecommunication infrastructure standardisation is a prerequisite for a functioning
internet. However, it is not clear that radical amendments and expansions of the ITR treaty are necessary in
order to adapt its mandate to the new digital environment or improve ITU’s ability to address new
challenges. Nor is it likely that ITR revisions will solve or alleviate issues such as access and affordability in
developing countries, perhaps better addressed at the national level. In fact, should some of the current
proposals to revise the ITRs be passed, the effect may be the exact opposite. In particular, proposed
revisions to include internet or ‘ICTs’ in the definition of telecommunications, revisions that make reference
to variations of ‘cyber-security’, and revisions that aim to regulate pricing arrangements for internet traffic
may be detrimental for open internet and its ability to act as a conduit for human rights and free speech.
3
Freedom House 2012
Micek 2012
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Freedom House 2012a
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Freedom House 2012
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ITU and the ITRs – Background
The ITU is a standards-setting body for telecommunications infrastructure. In 1988, when ITU member
states last negotiated the ITRs, the treaty was envisaged as a document to facilitate global interconnection
and interoperability of telecommunications traffic between countries. Through principles set out in the ten
articles of the ITRs, the ITU was set to administer several aspects of global telecommunications policy,
including radio frequency spectrum allocation, satellite orbital slots, and the development of voluntary
international telecommunications standards. The ITRs set out principles for ensuring that networks can
connect with each other smoothly, and that international services are offered in a fair and efficient
manner7.
ITR text is elaborated through the work of ITU Sectors and Recommendations that are interpreted and
implemented locally by nation states. Particular recommendations on each of the issues mentioned in the
ITRs are further elaborated through the work of three main ITU sectors: ITU-R (radio-communications), ITUT8 (standardisation) and ITU-D (development), and their respective working groups. Hundreds of ITU
standards allow systems to work locally and globally9. For instance, the ITU-T standard-setting
Recommendations deal with transport protocols, voice and video compression, home networking, and
myriad other aspects of telecommunications. To illustrate, the Emmy award-winning ITU-T standard H.264
is now one of the most popular standards for video compression10. Once Recommendations are interpreted
and ratified by national legislators they are taken on by national telecommunications actors, such as
national communication regulatory agencies. Traditionally, communications regulators deal with various
aspects of national communications networks (including licensing, competition, and spectrum allocation)
and, alongside other relevant national actors (e.g. ministry of communications or equivalent) regulate the
work of local telecommunication service providers. The local variance in interpretation of what regulation
of telecommunications encompasses highlights the importance of national regulation, which is still the
primary regulator of free expression for online users.
The current ITRs’ breadth, openness and non-mandatory nature of its related Recommendations, make
the ITR treaty more important for what it doesn’t do than for what it does. Under Article 4.3 of the ITU
Constitution, the ITRs are legally binding. However, their broad nature, the option to submit country
reservations, and the non-mandatory nature of specific Recommendations leave great latitude when it
comes to implementation. Had the designers of the 1988 Treaty included specifics on regulatory issues, the
user and market driven internet – which has made it into such a powerful tool for innovation – free
expression and global information exchange may have not been possible.
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ITU 2012a
In the 1988 ITRs, ITU-T equivalent body was CCITT. Replacement of CCITT with ITU-T in the treaty is non-contentious.
9
ITU 2012b
10
ITU 2012c
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The link between the ITRs and the internet is not clear cut, as regulation of the internet is not explicitly
mentioned in the body of the Treaty. The definition of telecommunications set out in ITR Article 2.1 is “any
transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any
nature by wire, radio, optical or other electromagnetic systems”. This lends itself to broad interpretation by
individual country members and has, even in its current format, been seen as encompassing the internet. A
glance at the documents and conference topics discussed by different ITU sectors and working groups
makes it all the more apparent that the internet already forms part of the ITU agenda. It could be argued
that proposals which aim to make explicit reference to the internet in the revised ITRs would only put a
name to a practice that already exists.
At the moment, the ITRs apply to the infrastructural layer of the internet, but not beyond. ITU Secretary
General Touré often uses the analogy of ITU as regulator of the roads, but not of the traffic travelling on
these roads, or the behaviour of the drivers. There are various internet-related issues that the ITU and ITRs
do not regulate at present which fall under the connectivity, application and content layers of the internet.
These include maintenance of domain names, root servers, engineering protocols, etc. This part of internet
infrastructure is governed by a plethora of international bodies such as ICANN, ISOC, and IETF, and is not
covered by the ITU mandate.
The ITRs in their current format do not explicitly grant the ITU mandate to address content regulation.
Regulation of the issues such as cyber-security, censorship or intellectual property under the ITUs mandate
is particularly tenuous. In practice, however, a growing number of these issues are now covered by the
work of ITU, and telecom/ICT regulators around the world are seeing their mandate expand to include
information technology11. According to the ITU, mandates of regulatory agencies have been expanding
beyond the infrastructural layer of the internet to include the connectivity layer, the applications layer and
even to the content layer, although still to a limited extent.
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ITU 2012d
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What could change at WCIT ‘12?
The current controversy surrounding the WCIT ‘12 conference revolves around two main issues: firstly,
around the possibility of broadening the ITU’s mandate and implications this might have for internet
governance, and secondly, around the specific proposed revisions to the current ITRs.
Broadening the ITU mandate?
Traditionally, the ITU has been tasked with ensuring standardisation and interoperability of global
telecommunication networks. Over the years, the organisation has become increasingly involved with
digital technologies. However, there is contention over how much of the internet the ITU can be
interpreted to legitimately regulate, particularly since this is not explicitly mandated by the ITRs. As
outlined above, our view is that the ITRs apply to the technical aspect of the internet related to
telecommunication standards, but not beyond.
Reflecting the concerns expressed by various civil society groups, we believe that the ITU mandate should
not be explicitly expanded in the revised ITRs. Broadening the ITU mandate beyond technical
telecommunication standard issues in the new ITR treaty may undermine the current multi-stakeholder
internet governance model. The shape of internet governance will not directly be decided at the
conference, but the revised ITRs in their totality are likely to signal the appropriate or expected role of
governments in the ICT sector and internet governance in the 21st century. In case new ITR provisions give
scope for increased government regulation of the ICT sector, this could be detrimental to the current model
of internet governance under which the internet has flourished and become such a powerful medium for
freedom of expression.
The current model relies on a decentralised and multi-stakeholder decision-making process with input from
civil society, academics, engineers, and the private sector. This reflects the way the internet was originally
envisaged – as a global, interconnected information commons that was governed in a dispersed and
participatory manner by its users. This model was acknowledged as the most appropriate model of internet
governance and endorsed by nation states at the 2005 WSIS conference in Tunis. But it is still very much a
project under development with its own flaws and downsides. In comparison, the ITU decision-making
processes rely on the traditional state-led model that has been the traditional approach for dealing with
international public policy. Currently, the ITU decision-making processes are steered by nation-states,
largely behind closed doors, with its membership expensive and lacking inclusiveness12. To no great
surprise, many policy makers find it difficult to adapt to the alternative. This does not, however, change the
fact that a transparent, inclusive and multi-stakeholder model is the most appropriate model for internet
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Nation states are the only members with voting rights.
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governance13, and it only reinforces the need to support it, promote it, and improve it. Expanding the ITU
mandate in a way that would imply the need for greater regulation of internet by governments would be a
normative step back and could undermine the important work that has been done since Tunis 2005.
In the end, the interpretation of the ITRs is left to member states to decide on locally. However, we urge
governments and other stakeholders interested in upholding the WSIS 2005 agenda to carefully weigh any
potential benefit of proposed revisions to the ITRs against the potential of undermining the multistakeholder model of internet governance (see below for specific revisions that could have a normative
chilling effect for the multi-stakeholder model of governance).
Analysis of key proposed revisions to the ITRs
The final text of the new ITRs and the impact of incorporating particular revisions are difficult to predict.
The negotiation process is on-going and it is likely to continue until the Conference. A number of proposals
are currently on the table, only some of which are available to public scrutiny (a compilation of proposals
was issued earlier this year by ITU; others were leaked through the unofficial WCITleaks website14).
Analysis of proposed revisions and the respective list of stakeholders supporting or opposing them was
based on the following documents:
ITRs (International Telecommunication Regulations)
http://www.itu.int/osg/csd/wtpf/wtpf2009/documents/ITU_ITRs_88.pdf
Draft Compilation of Proposals: CWG-WCIT12 Temporary Document 62 Rev.2
http://files.wcitleaks.org/public/T09-CWG.WCIT12-120620-TD-PLEN-0062R2.pdf
USA: Proposals for the Work of the Conference
http://files.wcitleaks.org/public/US%20High-level%20principles.pdf
ARB: Arab States Common Proposals
http://files.wcitleaks.org/public/S12-WCIT12-C-0007!!MSW-E.pdf
ETNO: CWG-WCIT12 Contribution 109
http://files.wcitleaks.org/public/ETNO%20C109.pdf
ATU: CWG-WCIT Document 4-E (Africa Preliminary Common Proposals)
The final outlook of these proposals is likely to change as regional working groups continue to meet and
discuss them in an effort to reach regional consensus.
Four types of proposed revisions found in different proposals are seen as particularly worrying for open
internet and freedom of expression online and are analysed below. This is not an exhaustive list as clauses
are re-negotiated and new ones added. To get around this difficulty, we have used a set of principles/
questions to guide the analysis in assessing the proposed revisions. This set of questions can be used,
adapted and expanded to judge any suggested revision put forward in the following months.
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14
De la Chappelle 2011
http://wcitleaks.org/
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01
02
03
04
05
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Does the revision refer to a technical issue limited to telecommunication networks and standards
(does it fall within the core ITU mandate)?
Is the ITU the most appropriate place to address this issue (could the issue be solved at the national
level or would it be better addressed in another international/ multi-stakeholder forum)?
What effects is the revision likely to have on the current multi-stakeholder internet governance
model?
What effects is the revision likely to have on social and economic development in South Asia?
What effects is the revision likely to have on user rights and freedom of expression? This
consideration is assessed against the 2011 Joint Declaration on Freedom of Expression and the
Internet15.
Additionally, we have considered whether the proposed revisions could address concerns specific
for developing nations, which might outweigh rejection of that revision on other grounds.
Broadening of the ITRs to the internet, for instance, can be seen as a stepping stone towards
promoting universal internet service obligations at the international level, which is important for
developing countries.
We present both sides of the argument and provide our recommendations.
15
Joint Declaration on Freedom of Expression and the Internet 2011
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Proposed revisions to include reference to the internet in the ITR text
Currently, the ITRs have no explicit reference to the internet. Several proposed revisions16 aim to re-write
the definitions clauses (Article 2) to include ‘processing’ of traffic, and to include ‘internet traffic
termination’ under the definition of international telecommunication service. Other similar proposed
modifications include references to ‘VoIP’ Article 3.1, ‘Internet traffic and data transmission’ in Article 4.2,
as well as to ‘Internet and Internet Protocol’ in Article 4.3a. Inclusion of these revisions would
unmistakeably put the ITU on the internet governance map for those who don’t see it there already, and
reinforce its position on it for those who do.
IN FAVOUR
The revision would clarify the current ITR definitions. “The term Telecommunications/ICTs is
commonly used within the ITU. It is mentioned many times in all of its Conferences and Assemblies
outcomes. Although the term "Telecommunication" and its definition in both the ITRs and the CS&CV
already cover the ICTs, it is quite useful to clearly reflect this by slightly improving the definition.”
(ATU Common Proposal, Article 2.1A)
The revision could benefit developing nations by enabling the inclusion of universal service
obligations to the ITRs. Broader mandate might enable inclusion of universal service obligations and
promote the positive obligation to facilitate universal access to the internet as per Clause 6 (e) of the
Joint Declaration on Freedom of Expression and the Internet.
Known supporters: African Telecommunication Union (ATU), Arab States, Russia
VS…
References to ‘internet traffic’ and ‘data traffic’ in the new ITRs could undermine user rights by
sending a signal about the need for greater internet regulation at the national level, potentially to
include internet content. The trouble with these revisions lies in their potential to send a signal
about the need for greater internet regulation at the national level, which could manifest itself in
increased restrictions on free speech online. Greater government regulation may also hinder
economic openness and innovation.
AGAINST
Putting internet regulation explicitly in the text of the Treaty could undermine current multistakeholder internet governance model. The current internet governance model relies on open,
decentralised, bottom-down decision-making processes, unlike the traditional Westphalian statecentred system to which the ITU belongs. The future of the internet should be designed through
open, consultative and multi-stakeholder process, as agreed upon at the WSIS conference in 2005.
Known opposition: Spain, UK, US, the Netherlands, Internet Society, civil society groups including
Article 19, Index on Censorship, Center for Democracy and Technology, Accessnow, etc.
RECOMMENDATION: Proposed revisions aiming to explicitly include ‘internet’, ‘ICTs’ or ‘traffic’
into the ITRs should be considered with caution. Their potential negative effect on multi-stakeholder
internet governance should be weighed against any of their potential benefits.
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As presented in the Draft Compilation of Proposals
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Proposed revisions to include security-related elements to the revised ITRs
ITU was mandated to coordinate international efforts to “build confidence and security in the use of ICT” at
WSIS 200517. This should not be confused, however, with regulating traffic on networks which is still a
sovereign right of Member States. Several proposals aim to include ‘cyber-crime’, ‘data preservation,
retention, protection’, ‘spam’, ‘personal data protection’ in the revised ITRs (e.g. new Article 5A of the Arab
States Proposal). In a similar vein, new Article 8 of the Russian Proposal aims to introduce compulsory
‘identification of subscribers by operating agencies’. These inclusions are largely seen as attempts by
repressive regimes to internationally legitimise increased government control of internet content, which
falls outside ITU core mandate.
IN FAVOUR
There is need for standards that achieve interoperability and conformance to security measures
because of the interdependence of networks in today’s world. Different types of infrastructure are
now interconnected and failure in one can affect others. “Confidence and security in the use of ICTs
is one of the most (…) critical issues to be dealt with under the revised ITRs. (…) However, this could
only be achieved through global commitment and cooperation.” (Arab States Common Proposal,
Article 5A)
Known supporters: Arab States, Cuba, Russia
VS…
The ITU is not the most appropriate place to deal with these issues – they could be better
addressed elsewhere. As pointed out by ISOC, “issues such as cyber-security, cybercrime, spam,
etc., are most effectively dealt with by developing national best practices and codes of conduct,
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with appropriate international cooperation.”
These changes would have negative consequences on freedom of expression online and user
rights. The proposed inclusion of monitoring internet traffic under the guise of cyber- security could
legitimise existing restrictive legislation and violations of users’ rights in countries that have already
put forward repressive regulation (censorship and state surveillance). The particular inclusion of the
compulsory identification of subscribers by operating agencies is worrying in the context of
increased pressure on service providers to share user information with governments.
AGAINST
These revisions would inappropriately expand the ITR scope to issues that fall outside ITU’s core
mandate. This argument is reflected in the guiding criteria used by CEPT, which states that the “ITU
shall focus resources and programmes on those areas of cyber-security within its core mandate and
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expertise, notably the technical and development spheres” , and not beyond.
Known opposition: Japan, Canada, Australia, Conference of European Post and Telecommunications
(CEPT), Internet Society, Japan Internet Providers Association (JAIPA), civil society groups including
Article 19, Center for Democracy and Technology, Accessnow, etc.
RECOMMENDATION: Proposals aiming to include ‘cyber-crime’, ‘data preservation, retention,
protection’, ‘spam’, ‘identification’, etc. into the future ITRs should be rejected. Security-related elements
should be in the ITRs only and if they apply to network safety, but not beyond it.
17
ITU 2012e
ISOC comment, Draft Compilation of Proposals
19
CEPT comment, Draft Compilation of Proposals
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Proposed revisions to mandate pricing terms
The proposal initially submitted for consideration by the ETNO group (European Telekom Operators), an
ITU sector member20, proposed several revisions. It proposes a new system of fees imposed on sending
networks and aims to introduce an IP interconnection provision which would allow charging internet traffic
providers to guarantee a ‘quality of service’ (e.g. service response time, signal-to-noise ratio). These
revisions are largely seen as ETNO’s attempt to recover market share from internet traffic. In an effort to
broaden support for its proposal, ETNO is lobbying other governments (ATU in particular) to incorporate
these revisions into their proposals.
IN FAVOUR
Introduction of a quality of service provision would support innovation to provide a value-added
service through allowing IP traffic to be managed according to its characteristics (ETNO Proposal)
Inclusion of sender pays model of charging would address the need for telecoms to be fairly
compensated for traffic carried across their networks and investment needs caused by rapid
internet traffic growths. (ETNO Proposal)
Known supporters: European Telekom Operators (ETNO) with potential to gain support among the
African Telecommunications Union countries (e.g. Kenya and Ghana)
VS…
Introduction of a quality of service provision is incompatible with the net neutrality principle and
is likely to undermine user rights/ freedom of expression online. The network neutrality principle
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states that there should be no discrimination in treatment of internet traffic . Under this revision,
operators would be encouraged to prioritise traffic based on what they consider has ‘value’. This is
at odds with international standards on freedom of expression.
A move to charge sending networks is likely to have a negative effect for access to content in
developing countries. Additional charges on international content providers may dis-incentivise
them from directing traffic to poorer environments where demand and profit opportunities are
lower, to the detriment of local empowerment and social development.
AGAINST
A move to charge sending networks may have a negative effect for economic development in
developing countries. Imposing sender-pays regulation on local content providers in developing
countries would increase operational costs and dis-incentivise local innovation.
Known opposition: US, Conference of European Post and Telecommunications (CEPT), civil society
groups including Article 19, Center for Democracy and Technology, Accessnow, etc.
RECOMMENDATION: These revisions should be rejected. Its benefits are likely to be limited to a
narrow group (telecoms) while undermining user rights and internet freedoms for others.
20
21
Sector Members do not have voting rights, but are allowed participation at ITU conferences.
Joint Declaration on Freedom of Expression and Internet 2012
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Proposed revisions to make ITU-T Recommendations mandatory
Several proposals suggest the need for stricter compliance with the ITU-T Recommendations by including a
phrase “shall” in front of various provisions referring to Recommendations in Article 1 (Purpose and Scope
of Regulations). This is important because ITU-T Recommendations are much more detailed than the
broad, albeit binding ITR Treaty. As mentioned above, the Recommendations are currently non-binding,
and subsequent detailed arrangements are resolved through voluntary compliance by governments and
operators (outside the ITU). The current framework is highly compatible with a market-led governance
model.
IN FAVOUR
These revisions would strengthen the compliance mechanisms of the ITU. The African countries
stated that “this is consistent with Article 1 of the ITU Constitution and Article 1 of the ITRs which
states that “Member States should, to the greatest extent practicable, comply with ITU
Recommendations”. To fulfil this task, in certain instances the ITRs can include technical, operational
and regulatory issues related to international telecommunications; in these cases, the ITRs can
include reference to specific ITU Recommendations, whose provisions would become mandatory if
such a Recommendation is deemed essential for the proper implementation/enforcement of this ITR
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provision to fulfil its intended purpose.”
Known supporters: Arab States, African countries, Russia, Mexico
VS…
Making the ITU-T Recommendations mandatory could exponentially increase the scale and
likelihood of any negative effect analysed above. Should the ITR Treaty be passed in such format,
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some have argued that disagreeing countries would opt out of the ITU altogether , causing major
damage to the global telecommunications environment as we know it.
These revisions would undermine the work of ITU-T Sector which relies on flexibility in adapting
Recommendations to the emerging changes in the ICT environment. Including reference to a
specific Recommendation into the ITRs would require revision of the ITRs every time a revision to
this Recommendation has to be made. This is not feasible.
Known opposition: US, UK, Sweden, Canada, Iran, IEEE Standards Association
AGAINST
These proposed changes are likely to have a negative impact on economic potential of the ICT
sector. The current system – based on voluntary consensus standards system, is the back-bone of
many market economies. Strict regulation can be particularly harming in a fast-changing sector
where rules need constant adaptation.
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RECOMMENDATION: We believe that disadvantages of this revision for free expression outweigh
its benefits. Proposed revisions to make ITU Recommendations mandatory should be rejected.
22
African group criteria for assessing proposals, Draft Compilation of Proposals
Mueller 2012
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ITU 2012f
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Other proposed revisions
It is worth noting that there are many other proposals currently on the table. Most are not available to
public scrutiny. Within these, not all revisions are controversial. There is now wide agreement about the
revision of the preamble of the ITRs, and some cosmetic revisions such as changing the CCITT into ITU-T,
etc. Ideas behind some proposed revisions may in fact have positive effects for users, such as the revision
to set transparency standards for international data roaming prices.
RECOMMENDATION: A general recommendation for local civil society is to assess any proposed
revisions based on the above guiding questions and a subsequent cost-benefit analysis.
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Influencing the debate in South Asia
Advocacy
WCIT ’12 is an inter-governmental conference and only the 193 ITU Member States are able to approve
changes to the ITR treaty text. Once the WCIT conference commences, it is highly unlikely that individuals
or organisations outside of ITU Member States will be able to influence changes to the ITRs, unless by
joining their national delegation. There is room, however, to influence the debate in the build-up to the
meeting at the national level. The most important step for civil society will be to reach-out to policy makers
in South Asian countries and make sure they are in touch with their internet community, that they have the
relevant information available to them, and understand the implications of these negotiations for their
constituents.
ITU Secretariat
The Secretariat does not have decision-making power, but it could contribute to making the preparatory
process more transparent. A more transparent process would facilitate civil society to be informed and
lobby their governments more effectively. Furthermore, the ITU Secretariat has encouraged civil society
groups to submit their opinions and comments about the ITRs and the preparatory process through an
online portal (available at http://www.itu.int/en/wcit-12/Pages/public.aspx). Received contributions will be
available as background material for Member States. The official ITU deadline to receive public views and
opinions is November 3rd, but civil society groups are encouraged to submit their written concerns directly
to their governments until the Conference. There is a possibility that civil society groups will be allowed to
attend (in an observatory capacity) the WCIT ’12 conference, but this has not been confirmed.
South Asian governments
The first line of defence is reaching out to national governments. However, lobbying governments is a
complicated process25. It can depend on civil society capacity, levels of openness to public input and
consultation of a country in question, but also on the issue itself. The process of lobbying governments on
issues related to foreign policy, which involves influencing governments positions and actions in the
international arena – in this case participation in ITU/ WCIT, can be particularly challenging. The foreign
policy decision-making processes are notoriously non-transparent, which means that citizens are very
limited in holding politicians to account.
25
Applicable to democratic societies; in autocracies, this type of activity may not be possible or feasible for civil
society at all.
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Generally, top-government officials who want to stay in office often adhere to strategies that do not
threaten potential re-election. In foreign policy, this is not the case. Foreign policy decisions are seldom the
issues that get governments voted out in elections. This makes it easier to bypass consultation with
relevant stakeholders, as the decisions in this field have little or no repercussions. The other complicating
issue is the lack of capacity of civil society to understand, follow, and participate in these discussions. In
part, this is due to the fact that foreign policy discussions rarely seem as relevant to local constituents as
education, health-care and employment, which have a more direct impact on citizens’ everyday lives.
Depending on the local context, the following options
for activities could be explored by local groups in
the run up to the conference:






Engaging with decision-makers and informing them about civil society’s views and concerns about the
issues and proposals being discussed at the WCIT ’12 conference.
Where possible, putting direct pressure on decision makers by joining national ITU delegations (see
Annex for sample letter);
Lobbying decision makers to share national positions and potentially, other unpublished proposals;
Working on creating indirect points of pressure on governments through sympathetic private sectors
representatives, media and potentially foreign governments;
Working on developing a national environment which is conducive to multi-stakeholder debate
through working with media (issuing press statements, organising public discussions), academic
institutions, and broader civil society (awareness raising and information campaigns, social media
tools);
Based on previous bullet-point, developing and signing a joint statement by industry, academia and
wider civil society about the danger of inadequate consultation with key stakeholders.
Potential to influence the debate: Bangladesh
The Bangladeshi government has only recently started preparations for the WCIT conference. The
preparatory process so far has been closed and it is unlikely that the government will open public
consultations or openly invite civil society representatives onto the national ITU delegation. One civil
society organisation has nominally been included onto the delegation (Bangladesh NGO Network for
Radio and Communication), but there is doubt that it will play anything but a rubber-stamp role. The
government agency in charge of the process is the BTRC (Bangladesh Telecommunication Regulatory
Commission). The local Internet Society (ISOC) chapter has engaged with the BTRC, has briefed
members of the Parliamentary Standing Committee for Post and Telecom, and is in touch with Foreign
Ministry officers responsible for UN agencies26.
On the wider civil society side, there has been minimum engagement apart from activities organised by
ISOC, which has held seminars at two universities highlighting the consequences of WCIT. There is a
general lack of civil society capacity to engage with these issues.
26
ISOC 2012
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Potential to influence the debate: India
So far, the Indian government and Indian ITU Sector Members (private companies that can participate in
the Conference, but have no voting rights) have not played a prominent role in the WCIT ’12 preparatory
process and the issue is only now starting to emerge on the government’s agenda.
Recently, the government of India has prepared a draft paper on their position regarding WCIT. This
paper has been circulated to businesses, possibly to some telecom companies, but not to civil society.
The paper is reported to be very top-level and lacking understanding of the issues and the type of
decisions that could be discussed at ITU level. It mentions issues such as the need for expansion of
telecommunication connections in developing nations. Although the ITU might not be the place to
address it, this reiterates the need to find a proper forum to do so. The draft paper is not India’s final
position and there is room to influence it in the following months. According to the local Internet Society
(ISOC) chapters, so far, India's WCIT position has not been adequately consulted with the stakeholder
groups. At the recently held Indian IGC (Internet Governance Conference – http://www.iigc.in/) which
was co-organised by Internet Society, Federation of Indian Chambers, and industry, a public official
attending the panel on WCIT was said to have had very modest understanding of the ITRs. Generally,
there seems to be a lack of expert analysis and competence to penetrate the minutiae of the ITRs and
individual proposals. This applies both to the governmental and civil society level. Lack of access to
documentation is part of this problem. In this context, it is difficult to reach a consensus on strategy for
the WCIT ‘12.
Currently, civil society groups (e.g. Centre for Internet and Society, IT for Change, Internet Democracy
Project) are discussing these issues. A joint civil society position has yet to emerge, but groups are
considering making written submissions on their positions to the government. There might be potential
to lobby the Indian government to make its position and draft documents widely available and to
include civil society members onto the national ITU delegation.
Potential to influence the debate: Nepal
So far, the Nepali government has yet to significantly engage with this issue. Civil society side so far has
shown minimal interest and there is a general lack of capacity among civil society groups to understand
and engage with the issues under review at WCIT ’12. The exception is the local ISOC chapter which has
been monitoring these developments. It is currently planning a small multi-stakeholder discussion on
the process. The date for this meeting has not yet been announced.
This situation implies that there is very limited scope to influence the debate in Nepal in the upcoming
months. Capacity building and awareness raising activities and programs should be developed as part of
a long-term strategy if local civil society is expected to effectively participate in this process and
influence the debate.
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Creating an international normative framework for debate
Civil society efforts at WCIT ’12 should be seen as part of a long term-strategy to protect the empowering
role of the internet. WCIT ’12 is only one in a series of conferences leading up to WSIS 2015 (and beyond)
where various stakeholders will seek to assert their influence over the future direction of internet
governance. However, lack of a global unifying set of operational principles for internet policy is a major
obstacle to effectively engage in the upcoming debates. At the moment, there is a lack of shared
understanding of the technical, commercial and regulatory environment necessary to effectively support
freedom of expression, innovation and enterprise in internet policy.
Legitimate concerns raised by developing nations have to be part of this strategy. Developed countries
have made some important efforts to develop principles for internet policy making27, but these have yet to
be fully embraced by countries in the developing world. Many US-led initiatives in particular have largely
been seen as promoting US commercial interests without adequately addressing legitimate concerns
specific for developing nations, including access, affordability and local skills and demand. Finding a way to
address these issues will be paramount in reaching a broad consensus on the future of internet policy and
governance.
Civil society in South Asia could have a leading role to get past this polarisation as a legitimate
stakeholder to represent concerns of developing nations. They could engage in activities such as:
 Raising awareness among their government representatives of the dangers, but also possibilities of
engagement in the upcoming international debates for societies in the developing world;
 Providing independent analyses and contextualisation of issues such as those under scrutiny at WCIT;
 Participating in international forums and liaising with regional and global civil society representative
who share their concerns;
 Signing national and international petitions or open letters to make their concerns public.
27
See, for instance the OECD Internet Policymaking Principles, the Council of Europe Internet Governance Declaration,
and the Internet Rights and Principles Coalition Charter.
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Capacity building
The above activities and avenues for influencing the debate will only be effective if civil society has the
capacity to carry them out. In South Asia at the moment, civil society knowledge on internet policy issues is
very limited – only a handful of organisations have the adequate capacity to engage in internet policy issues
and processes. With this in mind, investment in capacity building programs and activities for civil society
will be important if greater engagement on these issues is expected to happen.
Due to the short time frame, it may not be feasible to achieve major outcomes through capacity building
initiatives before December 2012. Nevertheless, capacity building should be seen as part of a long term
strategy to influence the debate. The WCIT ’12 conference is only one in a series of meetings dealing with
internet policy issues that are being held in the upcoming period.
One proposed capacity building activity could include bringing together freedom of expression and human
rights activists with the tech community at the national level. Building capacity of local groups could be
done in collaboration with private companies who share their interests as well as through experiencesharing with other local groups. As part of this effort, groups that are more knowledgeable could train civil
society members on a range of issues, including substantive understanding of the debates and actors,
training them on advocacy tools and skills, providing information on fundraising strategies, etc. At the same
time, internet freedom advocates could be put in touch with their regional peers in order to recognise
common interests and learn about best practices in other countries (e.g. twinning programs, participation
in regional IGF working groups). Finally, groups can be encouraged to participate at international meetings
and workshops related to internet policy.
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Conclusion
Outcomes of WCIT ’12 could have implications for economic, social and human rights of internet users in
South Asia. The discussion happening at this year’s WCIT conference and its outcomes could have
significant implications for the way in which users access, send and receive information via the internet
everywhere. In South Asia, which now accounts for over 150 million global internet users28, these concerns
are not only related to free expression, but also to economic and social development of local communities.
The ITU might not be the adequate place to address some pressing concerns for South Asian countries
regarding access and affordability. Instead, these will require local investment in infrastructure through
public-private partnerships, increasing basic literacy, technical skills, and demand. These issues, however,
fall outside the core ITU mandate. Most importantly, the ITU does not rely on a transparent multistakeholder process which is critical to ensure commitment by all relevant stakeholders – governments,
private sector, technical community, civil society and wider public.
Even if WCIT is not the appropriate place to address these issues, it is important that countries in the
region find a place to address their legitimate concerns and develop and promote a policy position that
will ensure maximum benefits and protection for their citizens.
Local civil society can play an important consultative role in this process by engaging their decisionmakers and sharing with them their concerns about potential changes in and of the internet environment.
However, some major obstacles are facing South Asian civil society groups to participate in this process.
These include lack of interest and experience from policy makers to include the public in their decisionmaking, but also lack of resources, time and capacity on the side of wider civil society and public.
These are serious problems which have to be addressed through sustained capacity building and
awareness raising programs and activities. It is perhaps unfeasible to expect that requests for greater
transparency and public consultation during the preparatory process for WCIT ’12 will have great impact.
However, seeing that WCIT is only one of many battles to be fought over the future of the internet and its
governance in the next couple of years, the need to build local knowledge and skills should be
acknowledged and built into a long-term strategy as soon as possible.
Recommendations for overcoming obstacles for civil society participation:




28
Capacity building on knowledge & skills, including research and training activities;
Establishing a rapid response fund to engage in short-term advocacy efforts;
Promoting wider public engagement through awareness raising and capacity building;
Promote collaboration between internet rights and human rights groups, IT developers, academia,
media, and business.
World Bank 2012
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Bibliography
De la Chapelle, B., 2011. Internet Policy Making. Available at: http://dl.collaboratory.de/mind/mind_02_neu.pdf
Freedom House 2012, Freedom on the Net 2012. Available at:
http://www.freedomhouse.org/sites/default/files/resources/FOTN%202012%20-%20Full%20Report.pdf
Freedom House 2012a, Freedom on the Net 2012: Country Report – India. Available at:
http://www.freedomhouse.org/report/freedom-net/2012/india
ISOC 2012. Review of WCIT ‘12 Preparations around the World. Available at: http://www.internetsociety.org/wcitpreparations-around-world
ITU 2012. ICT Data and Statisticts. Available at: http://tiny.cc/jt34kw
ITU 2012a. WCIT Background Brief 1. Available at: http://www.itu.int/en/wcit-12old/Documents/WCIT-backgroundbrief1.pdf
ITU 2012b. What We Do. Available at: http://www.itu.int/en/about/Pages/whatwedo.aspx
ITU 2012c. ITU-T Standards in Action. Available at: http://www.itu.int/net/ITU-T/info/action.aspx
ITU 2012d. Trends in Telecommunication Reform. Available at: http://www.itu.int/dms_pub/itu-d/opb/reg/D-REGTTR.13-2012-SUM-PDF-E.pdf
ITU 2012e. WCIT Background Brief 6. Available at: http://www.itu.int/en/wcit-12old/Documents/WCIT-backgroundbrief6.pdf
ITU 2012f. WCIT-12: Public Views and Opinions. Available at: http://www.itu.int/en/wcit-12/Pages/public.aspx
Joint Declaration on Freedom of Expression and the Internet 2011. Available at:
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=848&lID=1
Micek, P., 2012. Censorship by Economics: Bangladesh Demands High Licensing Fees from Online Media. Accessnow.
Available at: https://www.accessnow.org/blog/bangladesh-demands-high-licensing-fees-from-online-media
Mueller, M. 2012. US Memo: ITU's Dubai Meeting Not Likely to Affect Internet Governance. Available at:
http://www.internetgovernance.org/2012/01/30/us-memo-itus-dubai-meeting-not-likely-to-affectinternetgovernance/
WCITleaks.org, 2012. Available at: http://wcitleaks.org/
World Bank 2012. Data on internet users. Available at: http://data.worldbank.org/indicator/IT.NET.USER
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Annex
Sample letter to request to join a national delegation to the WCITi
Honourable [NAME OF DELEGATE/REPRESENTATIVE],
The undersigned *ORGANIZATIONS/INDIVIDUALS+ respectfully request to join *COUNTRY’s+ delegation to the World
Conference on International Telecommunications (WCIT).
[Include a brief description of the expertise and experience brought by the signatories of this letter explaining the
relevance of including them on the delegation.] We believe that we will bring additional technical, economic and legal
expertise [delete/add as appropriate] and serve as a resource for the [NATIONALITY] government to advance our
common goals at the WCIT.
While we are aware that some parts of the WCIT may be opened to the public, and therefore to civil society, we feel
that genuine multi-stakeholder participation requires access to the working groups drafting the treaty text, which at
this point, requires being on a national delegation. The ITU has encouraged member states to bring multi-stakeholder
delegations to the WCIT because of the range of expertise they bring. As you may be aware, there is no deadline to
ii
register delegation members, nor is there any limit on number of delegates in a delegation .
The continued success of the Internet depends on the genuine participation of all stakeholders, including government,
the private sector and civil society. Indeed, the [NATIONALITY] government made a commitment to a multiiii
stakeholder approaches to ICT and the Internet at the World Summit on Information Society (WSIS) .
We are also particularly interested in joining the delegation because we are concerned with proposed changes to the
ITRs that could impact how [NATIONALITY] citizens and businesses access and use the Internet. We trust that we can
work together in inclusive and transparent ways to ensure that the Internet is not imperilled, that it remains open and
continues to facilitate and encourage economic development and the realization of human rights in [COUNTRY].
We look forward to your response.
Sincerely,
[NAMES OF INDIVIDUALS/INSTITUTIONS]
i
Visit https://www.accessnow.org/policy/itu for additional advocacy tools for the WCIT, including sample talking
points to use during a consultation and points of contact for your government.
ii
See the Convention of the ITU and the General Rules for Conferences, Assemblies and Meetings of the ITU (CV49
and GR Ch I, Sections 1&2) available here: http://www.itu.int/net/about/basic-texts/index.aspx
iii
http://www.itu.int/wsis/docs/geneva/official/dop.html
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