Tell Congress to Fix the DMCALearn More About Section 1201
Very few people ever heard of the International Telecommunications Union (ITU) until recently – and with good reason. For more than 100 years, the ITU managed quite nicely serving as the forum for countries and telecom carriers to coordinate insanely-technical-mind-numbingly-boring-but-really-really-important stuff related to making the phone network work internationally, distributing satellite slots, and trying to harmonize what frequencies countries allocate to what services. But now the ITU has suddenly become very interesting. Why? Because the ITU members will hold a rare meeting -- the World Conference on International Communications (WCIT) – where the 193 member countries will vote on whether to amend the current ITU rules ("ITRs") that set the framework for all this extremely important boringness.
Unclear for now – especially in the pre-game – is whether and how the WCIT represents a potential threat to freedom of expression online. I recently had an argument with Professor Milton Mueller (see the comments section of this post on the IGP blog) about this. Milton’s central thesis is that the recent hysteria about the ITU "taking over the Internet" is overblown and that this is just about how carriers negotiate payments. This has been interpreted by some to mean that civil society organizations concerned with free expression online ought to stop fretting about fleets of UN black helicopters siezing the DNS rootservers and relocating them to ITU Headquarters in Geneva.
For a number of reasons, I strongly disagree with this assessment. Even without the concern that the ITU will somehow “take over the Internet,” certain WCIT proposals advanced by a number of regimes that engage in Internet censorship threaten the future of free expression online. These proposals, from the Russian Federation and several Arab states, would for the first time explicitly embrace the concept that governments have a right to control online communications and disrupt Internet access services. This would reverse the trend of the last few years increasingly finding that such actions violate fundamental human rights – a valuable tool in trying to pressure repressive regimes to sttop using such tactics.
How Could WCIT Impact Free Expression Online?
A recently released ITU document summarizing various proposals to modify the existing ITU regulations (“ITRs”) confirms what folks have been saying and leaking for some time now. The Russian Federation, various Arab states, and others have submitted proposals that would expressly ratify the right of member states to disrupt communication in the name of national security, and to limit the ability of parties to route around censorship or communicate anonymously by providing members states the authority to determine routing paths and to prevent “misuse and misappropriation of numbering resources.” (See, for example, proposed MOD 30 & 31A – but there are numerous other proposals that could achieve the same end).
Milton’s response when I raised concerns about the proposals of the Russians and others can be boiled down to “who cares?” Milton argues that since the current ITRs already contain all this bad language (albeit limited to traditional telephony services), saying it again with regard to Internet services makes no difference. Russia and China will keep doing whatever they want anyway, even if the ITU rejects the proposals.
Why This Matters For Internet Freedom.
I am confident that the Russians and others raising these proposals are all familiar with the current ITRs. Nevertheless, they regard pushing these proposals for WCIT as time well spent, and with good reason. Despite Milton’s opinion to the contrary, current international law does not explicitly recognize the same right of governments to disrupt Internet-based services as it recognizes in basic telephony. To the contrary, the trend in International law in the last few years has been to view widespread disruption of Internet networks as a means of suppressing speech as a violation of international human rights. We saw this in the global reaction to Egypt’s national disruption of its Internet networks as part of its effort to suppress the “Arab Spring” in 2011. For those of us in the United States, this issue continues to play out before the Federal Communications Commission in its proceeding on local government shut downs of wireless networks.
Adoption of any of the pro-censorship provisions at the WCIT does not automatically lead to Internet censorship everywhere. But it would represent the first material setback to the growing international consensus that disrupting networks and otherwise exerting control over Internet traffic flows for censorship purposes violates fundamental human rights. If the 193 nation members of the ITU expressly approve the principle that countries such as Syria may disrupt Internet access or dictate what routing information providers may use to “maintain national security” (or for any purpose), it becomes much harder to argue that such actions violate fundamental human rights.
I also believe it would impact the ability of the State Department to openly finance programs designed to route around government censorship of the Internet, such as this one in Syria. At the moment, we can say that our funding the ability of Syrians to route around government censorship online is fully consistent with treaty obligations and does not violate international law. If the WCIT adopts any one of several pending proposals, programs to help opposition movements in repressive regimes route around government Internet controls would violate out international treaty obligations, and would arguably be inconsistent with international law.
To be clear, the risk is not because there is something intrinsically sinsiter about the ITU, or because "multistakerholderism" is always good all the time rah rah free markets and God bless America. But neither is the question as simplistic as “do you really believe that a vote at the WCIT could give the Russian Federation or the ITU ‘control of the Internet?’” Either kind of false framing ought to raise a red flag for anyone engaged in a serious effort to assess whether those concerned with the future of free expression online ought to care about what happens at WCIT. From our perspective, it appears that several countries -- notably the Russian Federation -- are attempting to leverage the WCIT to legitimize repressive Internet censorship practices under International law. Those concerned about the future of free expression online would do well to take this concern seriously.