This article was co-authored by Ambassador Gross (chair of Wiley Rein’s International & Internet Practice), Carl R. Frank, Umair Javed, and Sara M. Baxenberg (members of Wiley Rein’s Telecom, Media & Technology Practice).

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During the past few years, the International Telecommunication Union (ITU) has been a battleground where governments promote rival visions of how the Internet should be governed. Although there has been a recent cease-fire as Internet governance debates have focused more on the role of ICANN, those skirmishes may soon restart at the ITU. Indeed, Internet-related issues already are moving from the periphery of discussions in the ITU’s Telecommunication Standardization Sector (ITU-T) to the top of the agenda at many ITU-T study group meetings. These discussions likely will culminate at the upcoming World Telecommunication Standardization Assembly (WTSA-16)—another significant meeting that will probably help to shape the ITU’s future role and activities regarding Internet-related public policy.

As a result, businesses and others in the communications, Internet, and related industries would be wise to monitor carefully the domestic and international preparations by governments leading up to WTSA-16. In essence, developments at WTSA-16 could have important and potentially harmful consequences for companies and others that might find themselves subject to new ITU oversight or even regulatory burdens.

What’s at Stake

There has been considerable controversy in recent years over the ITU’s role in Internet governance. Debates have been dominated by two factions with fundamentally different views. Some governments, such as the United States, those in Europe, Japan, and others, support a role for all stakeholders in Internet governance and have pressed for a multistakeholder approach that enjoins national governments to participate in Internet governance issues on equal footing with the private sector, civil society, and academia. Other governments, including China, Russia, and many from the Middle East, support a more robust role for governments in Internet governance and have favored multilateral or intergovernmental arrangements, where states are the primary actors in policy discussions administered by the ITU. Indeed, at a recent meeting in April, foreign ministers of Russia, China, and India agreed on “the need to internationalize Internet governance and to enhance in this regard the role of [the ITU].”

A few years ago, these debates came to a head at the World Conference on International Telecommunications (WCIT-12), a treaty conference that reviewed an important 1988 international telecommunications treaty, the International Telecommunication Regulations (ITRs). WCIT-12 saw a number of proposals from governments favoring multilateral mechanisms and expanded legal authority of the ITU regarding a variety of Internet-related matters. Because of fundamental disputes over the appropriate role of the ITU regarding the Internet, for the first time in the ITU’s 150-year history, a significant number of countries (including the United States and most of Europe) affirmatively declined to sign the revised treaty.

More recently, however, at the 2014 Plenipotentiary Conference held in Busan, South Korea (PP-14), governments decided to avoid fundamental changes to the ITU’s jurisdiction and instead appeared to embrace a more multistakeholder approach to Internet policymaking. Plenipotentiary Conferences, held every four years, are treaty conferences that set the ITU’s general policies and revise key legal texts of the ITU, including the Constitution and Convention. Despite calls from some governments to incorporate new ITU provisions to oversee Internet issues related to domain name governance, cybersecurity, privacy, data protection, and content, governments ultimately decided not to make such changes at that meeting. In fact, governments agreed to withdraw proposals, previously endorsed by Russia, China, Saudi Arabia, and others, aimed at providing the ITU with legal authority to coordinate global policies related to Internet governance.

Importantly, and little noticed at the time, decisions at PP-14 nevertheless subtly but materially broadened Internet-related work at the ITU in other, potentially significant ways. These changes were accomplished through several Resolutions adopted at Busan, reflecting a strategic shift on the part of some governments that significant changes can be made merely by the adoption of Resolutions (which drive the ITU’s agenda for a four-year cycle and beyond), rather than the more controversial process of changing the ITU’s jurisdiction by amending the Constitution and Convention. Notably, many of the new or amended PP-14 Resolutions refocused the ITU’s work beyond telecommunications and into more problematic areas such as Internet content and applications, cybersecurity, and Internet policy, among others. The impact of these series of Internet-related Resolutions now is reflected in ITU-T study groups and in the preparatory process for WTSA-16.

The Expanding Role of ITU-T Study Groups

ITU-T is one of three sectors of the ITU, the others being the Radiocommunication Sector (ITU-R) and the Development Sector (ITU-D). The ITU-T’s primary function is to develop and coordinate voluntary international standards, known as ITU-T Recommendations, covering international telecommunications. The ITU-T’s work primarily is carried out by technical study groups. These study groups address a wide variety of Internet-related technical and economic issues, including transmission protocols, cybersecurity, cloud computing, and the terms of interconnection agreements.

Technical decisions in these areas can have far-reaching economic and social consequences, altering the balance of power between competing businesses or countries and potentially constraining the freedom of users. What is more, the Internet-related PP-14 Resolutions illustrate how standards can be, in essence, politics and policymaking by other means. The increased attention paid by governments to the work of ITU-T study groups should trouble affected businesses as well as others and encourage them to understand the deeper meaning beneath the technical nuts and bolts at the ITU.

Three study groups, discussed below, are particularly notable for their increased focus on Internet regulation and Internet governance. Led by governments that prefer to address such issues via multilateral public policymaking, the activities of these groups are moving further into what many think more properly is the arena of multistakeholder governance.

• Study Group 3 – Economic and Policy Issues. Historically, SG3 focused on traditional telecommunications economic issues such as international tariffing, roaming, and resale. More recently, SG3 refocused on a series of topics related to the Internet, particularly over-the-top (OTT) services, “charging and accounting/settlement mechanisms,” and “relevant aspects of IP peering.” For example, newly adopted text that could become a Recommendation encourages governments to develop measures to strike an “effective balance” between OTT communications services and traditional communications services, in order to ensure a “level playing field” (e.g., with respect to licensing, pricing and charging, universal service, quality of service, security and data protection, interconnection and interoperability, legal interception, taxation, and consumer protection). Plainly, SG3 is pushing the ITU even more into Internet-related policy and technical matters.
• Study Group 17 – Security. SG17 coordinates security-related work; cybersecurity and spam are high on its agenda. Cybersecurity is proving to be a dominant issue throughout the ITU, and related, contentious debates are finding a new home in SG17. Some of the work of SG17 arguably involves fundamental and important foreign policy and national security issues that appear to fall outside the ITU’s remit, such as cybercrime. In addition, SG17 increasingly is focusing on the security of applications and services for Internet of Things (IoT), smart grid, cloud computing, and the protection of personally identifiable information. Each of these activities potentially sets a precedent for an expanded ITU role in these issues going forward.
• Study Group 20 – IoT and Its Applications Including Smart Cities and Communities. SG20 was created in 2015 over the objections of some governments, including the United States. Those objections were based upon the concern that the focus of SG20—namely, the development of international standards for the coordinated development of IoT technologies, including M2M communications and ubiquitous sensor networks—either was unnecessary or was allotted elsewhere. Nevertheless, SG20’s activities seemingly have centered on the attempted standardization of end-to-end architectures for IoT and mechanisms for the interoperability of IoT applications and datasets. Some governments and many others have expressed concern that recent expansions of the ITU’s work agenda on IoT runs parallel to, and potentially impedes the effectiveness of, existing global standardization efforts primarily driven by the private sector through a variety of other standards development organizations.

Businesses and others may find it worthwhile to monitor the activities of these various ITU-T study groups—they effectively may set the international regulatory environment for many aspects of the Internet and new technologies. Indeed, although study group outcomes theoretically are voluntary, the ITU-T study groups’ work often is converted directly into domestic law in many countries, or could become international “norms,” or even treaties, and thus mandatory standards.

WTSA-16 and the Future of ITU-T

WTSA is a “once every four year” ITU conference that sets the mission of each ITU-T study group until the next conference. WTSA-16 is scheduled to be held in Tunisia from October 25 to November 3, 2016. WTSA-16 decisions will be important because, among other things, they will determine the scope of the ITU’s impact on the Internet-related issues discussed above.

Governments and particularly private sector companies and others that participate are expected to address a number of Internet public policy-related issues. These include the OTT, cybersecurity, and IoT issues now being discussed in study groups 3, 17, and 20, respectively. In fact, governments may submit proposals for new work on these issues, further solidifying an expanded role for the ITU going forward. Other governments are expected to offer proposals to restructure or even eliminate some of the study groups. Governments and others also likely will discuss other Internet-related issues at WTSA-16, including:

• ITRs. One of the outcome Resolutions from PP-14 calls for review of the ITRs every eight years. That Resolution requires formation of an Expert Group on the ITRs in early 2017, comprised of governments and other private sector members of the ITU to initiate review. WTSA-16 could become one of the first testing grounds for another WCIT.
• Internet Resolutions. Many existing ITU resolutions regarding Internet Protocol-based networks and the ITU’s role regarding international Internet public policy issues—especially pertaining to the management of Internet resources—will be important topics of discussion at WTSA-16. In addition, WTSA-16 likely will address issues associated with strengthening the role of the ITU in building confidence and security in the use of ICTs, and the role of governments in the management of internationalized domain names.

The preparatory process for WTSA-16 already has begun. Over the next few months, study groups will hold their final meetings and they will draft new questions for the next four years as well as specific recommendations for approval, modification, or deletion by governments. Regional telecommunication organizations, including APT, the Arab States, CEPT, CIS, and CITEL, are holding preparatory meetings to prepare regional positions on the issues that will be discussed at WTSA and to develop common regional proposals. Although formal decision-making at WTSA-16 will be limited to governments, the private sector and others can have a material impact both directly and through their national delegations.