The Internet and the ITU

Philip L. Verveer
Coordinator for International Communications & Information Policy 
European Institute
Washington, DC
September 23, 2010

In the space of half a generation, the Internet has become one of the most important mechanisms on the planet. Every human being, whether aware of it or not, depends upon it for material well being and for broader, non-economic benefits in social, cultural, political, and other realms.

The Internet’s unprecedented growth is not the only unusual thing about it. Equally unusual is that it is the largest and most successful cooperative venture in history. It has emerged without much significant guidance from above—not planned in a conventional sense and not constructed pursuant to comprehensive legal and regulatory strictures.

Rather, the Internet evolved from its Arpanet origins as a result of the efforts of innumerable parties in interest—some essentially academic and financially uninterested, some decidedly financially interested, and some in between. In a genuine sense, an amalgam of volunteers inspired by a very wide range of motivations has created and operates this indispensable network of networks. Which, of course, is not to say that the creation, maintenance, improvement, and operation of the Internet has been inexpensive. But one of the truly remarkable things about it is that despite the enormous capital and operating expenditures required to make it what it is, its value to all of humanity is incalculably greater—and the margin of value over cost grows greater literally every day.

Interconnection is, of course, the single greatest imperative for a network of networks. And here the absence of direct governmental or intergovernmental controls is particularly striking. The physical and economic arrangements necessary for—that in a real sense constitute—interconnection have been worked out through normal adherence to international technical standards and through commercial negotiation. National governments, let along international institutions, have not intervened to direct the creation of the controlling technical standards, have not mandated that the standards be observed, and have not prescribed the economic transfers that take place between and among the participating networks. This doesn’t reflect an absence of law. The laws of property, contract, and tort govern as they do in any commercial realm. And competition laws restrain aggravated refusals to interconnect. But it does reflect the absence or very limited application of more specialized laws of which the United States’ Communications Act is an example.

A very important aspect of the absence of closely controlling laws is the ability of the Internet to evolve quickly and freely in response to changes in technology, commercial practice, and consumer preference. This dynamism is critically important. Its protection is one of the central concerns of the Internet policies of the United States. We do not want to see anything done that would impair the ability of the Internet to continue to grow and evolve based on the needs and desires of its users. A different way to say the same thing is that we want the world’s people to continue to benefit from the efficiencies that advancing technology and business practice make available on an ongoing basis.

Protecting the dynamism of the Internet as one overarching objective can be understood principally, although not exclusively, as an economic proposition. Protecting freedom of expression and the free flow of information over the Internet is the other principal objective of the United States. This U.S. policy is fundamental. It long predates the Internet. But given the Internet’s unprecedented ability to move information instantaneously without regard to national borders, promoting and defending freedom of expression inevitably has become a more prominent feature of U.S. policy. Secretary Clinton’s much remarked January, 2010, Internet freedom speech is an obvious example. The concerns about freedom of expression and the free flow of information are grounded in well established concepts of human rights, but there also are economic bases for promoting the values. Limitations on the transfer, receipt, and use of information have costs. There obviously are times when it is reasonable to absorb those costs—preservation of aspects of personal privacy or maintenance of trade secrets, for example. Absorbing those costs without appropriate justifications simply reduces the material prosperity of the administrations engaging in the practice, but ultimately of all administrations in our interconnected world. As a result, U.S. policy is critical of restrictions that have only dubious justifications, and especially critical of restrictions that appear to be essentially political in nature.

And so, in summary, the United States favors the existing multi-stakeholder arrangements that have created and continue to maintain the Internet. We do so because they have been and continue to be effective in maintaining the health of the Internet as an organic proposition and because they have facilitated the Internet’s incalculable value as a channel of information and expression.

It is clear, however, that not all national administrations are as comfortable with these arrangements as we are. The reasons for this vary quite widely. Some administrations have an understandable concern that something so fundamentally important to their people apparently is outside not only of their control, but of any government or intergovernmental institution. Some administrations have a concern that unwelcome content is being brought across their borders. And some administrations have a concern that the Internet is facilitating unwelcome communications among their own citizens.

These concerns have brought forth a variety of reactions. The most immediately troubling from our perspective are those with the most immediate and malign effects. These include technological efforts to filter out political content broadly defined, intimidation of citizens using the Internet, and worse. But whatever the motivation of administrations concerned about the Internet, the most common reaction is to seek to remit it to some form of intergovernmental control.

And this is where the International Telecommunication Union comes in.

The ITU is a venerable institution. It was founded in 1865, which makes it after the considerably less well known Rhine River Commission the second oldest intergovernmental organization in existence. The ITU also is an indispensable institution. It does a great deal to advance the extent and the efficiency of international communications, most famously and most importantly serving as the organization that coordinates the world’s use of radio frequencies. The ITU has more than 190 nation state members and operates under the United Nations’ one nation-one vote protocol. Many of those members, especially those of the developing world, look to the ITU as an important place for assistance in advancing their telecommunications sectors.

For reasons, then, of institutional mandate, competence, and governing structure, the ITU is the entity most often nominated to take control of the Internet by administrations unsatisfied with the present arrangements.

The United States’ delegation went to the ITU Plenipotentiary meeting in Guadalajara, Mexico, in October, 2010 with the aim of maintaining and, where appropriate, strengthening the ITU’s important functions. We also went to Guadalajara with the strong intention of dissuading national administrations from seeking to expand the ITU’s remit beyond useful limits, and especially from asserting additional claims to governance of the Internet.

With the crucial assistance of many other administrations, we feel that we largely succeeded. The conference both reaffirmed the importance of the practical Internet-related assistance the ITU is rendering its members and it defined the ITU’s appropriately limited place in the Internet ecosystem.

As to the former, the Plenipotentiary reinforced the importance of, and encouraged, the ITU’s ongoing work in Internet-related capacity building and in development and dissemination of best practices. These are activities that have been particularly valuable to countries that are in the process of developing their capabilities in the information and communications technology sector of their economies.

After considerable discussion, the Plenipotentiary reached a second conclusion that is important for establishing the ITU as an important, but, very critically, only one of many important, contributors to the development of the Internet. The relevant language calls for the exploration of ways and means “for greater collaboration and coordination between the ITU and relevant organizations (including, but not limited to [the Internet Corporation for Assigned Names and Numbers], the [Regional Internet Registries], the [Internet Engineering Task Force], [the Internet Society] and [the World Wide Web Consortium] on the basis of reciprocity … .” We believe that this is an accurate assessment of the ITU’s place. It is one among many, and the majority of the others are a reflection of the multi-stakeholder universe that has advanced and sustained the development of the Internet. Stated differently, the multiple Plenipotentiary resolutions that contain this language recognize that it would be inappropriate to assign the ITU a role beyond the bounds of its technical competence, let alone to assign it responsibilities for the Internet’s evolving architecture or mechanisms for economic integration. Given the important roles of these other institutions, among others, it would be utterly inappropriate to assign the ITU responsibility for “regulating” or “controlling” the Internet.

The significance of the outcome lies in important ways in what it avoids. Delay is an inevitable consequence of intergovernmental control. For obvious and usually entirely benign reasons, it takes a very long time for intergovernmental organizations to reach decisions. That is something entirely inconsistent with the continued organic evolution and growth of the Internet and its continuing contributions to international prosperity and social and personal improvement. Geopolitical concerns also are integral to concepts of intergovernmental control. It unfortunately is clear that some nations that favor intergovernmental control of the Internet do so at least in part in the expectation that it would make it easier to recruit others to assist in their efforts at censorship and even political repression.

As noted, many other administrations joined with the United States in securing this outcome. Unsurprisingly, many European nations are among those most anxious to prevent the Internet from falling under intergovernmental control. The factors, among others, that account for this are the European commitment to democracy and to freedom of expression as well as to a qualified belief that the marketplace will produce satisfactory outcomes more often than not. Notwithstanding these shared perspectives, there is some unease about the ungoverned nature of the Internet on the part of some European administrations. Given our shared beliefs, it seems likely that the unease arises in part from considerations both philosophical and cultural. The great American contribution to philosophy, pragmatism, causes Americans to accept beneficent results even if the predicates might appear somewhat disorderly. We understand that this cultural inheritance is not universal. But we hope that European administrations’ deep commitment to technological progressiveness and to democratic values will cause even those with intellectual reservations to suffer the anomaly in the interest of preserving the benefits that the Internet affords all of us. This is especially important because, notwithstanding the success achieved in Guadalajara, many countries remain intent on finding ways to assert international control over the Internet. Preventing this from happening is likely to remain a priority for both the United States and many European administrations for the foreseeable future.