As the ITU-T 2018 Plenipotentiary Conference rolls toward a close this week, its most controversial and contentious subject appeared baked into a new treaty instrument resolution that has apparently reached a kind of steady-state. After distilling the many input proposals through ten revisions and a corrigendum, the tasked drafting committee has produced a new resolution with the simple title of “OTTs.”

Bear in mind that Over-the-Top (OTT) encompasses any and all communication networks and services—including those using ephemerally encrypted tunnels—that can be instantly and massively instantiated across the world. OTTs can—and have been—used to plant malware, to create massive network attacks, to create phony accounts to change election outcomes, to establish extremist groups to massacre religious worshipers, to surreptitiously exfiltrate user data, to remotely control IoT devices. The list of significant OTT threats to peoples, societies, and nations is lengthy.

It is preposterous understatement to suggest there are international “considerations” and “challenges.” However, that is about as close as the OTT Resolution gets to point out (using the Apollo 13 phrase) “Houston, we have a problem here.”

One can only imagine the dialogue in Dubai where a national delegate tries to sell the benefits of OTTs to another country, and they are reminded that the USA elections were hacked from an adversary nation via OTTs. It is worthy of a Saturday Night Live skit.

Plainly, OTTs have potentially profound adverse impacts on national sovereignty, legal systems, network services compliance obligations, network attacks, human rights including privacy, cybersecurity, wholesale data theft, fraud and consumer protection, cybercrime, national security, protection of cyber-physical infrastructures. Yet, none of these “red team” adverse consequences are found in the OTT Resolution.

Still, in the end, the new OTT Resolution seems to be on the way to adoption, and it does call for extensive continuing “collaboration and dialogue.” What the resolution doesn’t get quite right, however, is that the transition occurring is not from “legacy to an IP-based ecosystem,” but rather to a NFV-SDN/5G ecosystem of network slices. The reality today is that it is the ancient and vulnerable IP platform that is “legacy.”

Only China seems to have taken the long view in its OTT related proposal—solving OTT challenges in a manner that avoids complete Balkanization will require a set of new International Telecommunication Regulations that establish transnational OTT “rules of the road”. Huffy-puffy nationalism doesn’t work well when selling OTT services to other countries. In the meantime, the topic of extraterritorial OTT instantiation is sure to dominate the work of many bodies and people. Some will be pursuing their interests in expanding and exploiting global markets as cheaply and as fast as possible. Others will be more judicious and concerned about the potentially profound adverse effects on their nation and users. It will be a bonanza for public international law scholars.

So, as the Conference comes to a close this week, the final tweaks to the OTT Resolution, as well as the Reservations and Counter-Reservations of the signatory Nation States, will make interesting reading!