1. Apr 29, 2016 8:30 AM PDT Comments: 0 Views: 3,161
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Internet Governance in Transition: The ITU as a Battleground
for Rival Visions
By David A. Gross
This article was co­authored 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).
* * *
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 cease­fire as Internet governance debates have focused
more on the role of ICANN, those skirmishes may soon restart at the ITU. Indeed, Internet­related
issues already are moving from the periphery of discussions in the ITU's Telecommunication
Standardization Sector (ITU­T) to the top of the agenda at many ITU­T study group meetings. These
discussions likely will culminate at the upcoming World Telecommunication Standardization Assembly
(WTSA­16) — another significant meeting that will probably help to shape the ITU's future role and
activities regarding Internet­related 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
WTSA­16. In essence, developments at WTSA­16 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

2. 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 (WCIT­12), a treaty conference that reviewed an important 1988 international
telecommunications treaty, the International Telecommunication Regulations (ITRs). WCIT­12 saw a
number of proposals from governments favoring multilateral mechanisms and expanded legal authority
of the ITU regarding a variety of Internet­related matters. Because of fundamental disputes over the
appropriate role of the ITU regarding the Internet, for the first time in the ITU's 150­year 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 (PP­14),
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 PP­14 nevertheless subtly but materially
broadened Internet­related 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 four­year 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 PP­14 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 Internet­related Resolutions now is reflected in ITU­T study
groups and in the preparatory process for WTSA­16.
The Expanding Role of ITU­T Study Groups
ITU­T is one of three sectors of the ITU, the others being the Radiocommunication Sector (ITU­R) and
the Development Sector (ITU­D). The ITU­T's primary function is to develop and coordinate voluntary
international standards, known as ITU­T Recommendations, covering international
telecommunications. The ITU­T's work primarily is carried out by technical study groups. These study
groups address a wide variety of Internet­related technical and economic issues, including transmission
protocols, cybersecurity, cloud computing, and the terms of interconnection agreements.

3. Technical decisions in these areas can have far­reaching 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 Internet­related PP­14 Resolutions illustrate how standards can
be, in essence, politics and policymaking by other means. The increased attention paid by
governments to the work of ITU­T 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 over­the­top
(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 security­related 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 end­to­end 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.

4. Businesses and others may find it worthwhile to monitor the activities of these various ITU­T 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
ITU­T 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.
WTSA­16 and the Future of ITU­T
WTSA is a "once every four year" ITU conference that sets the mission of each ITU­T study group until
the next conference. WTSA­16 is scheduled to be held in Tunisia from October 25 to November 3,
2016. WTSA­16 decisions will be important because, among other things, they will determine the scope
of the ITU's impact on the Internet­related issues discussed above.
Governments and particularly private sector companies and others that participate are expected to
address a number of Internet public policy­related 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 Internet­related issues at
WTSA­16, including:
ITRs. One of the outcome Resolutions from PP­14 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. WTSA­16 could
become one of the first testing grounds for another WCIT.
Internet Resolutions. Many existing ITU resolutions regarding Internet Protocol­based 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 WTSA­16. In
addition, WTSA­16 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 WTSA­16 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 decision­making at WTSA­16 will be limited to
governments, the private sector and others can have a material impact both directly and through their
national delegations.
By David A. Gross, Chair of Wiley Rein’s International & Internet Practice
Related topics: Internet Governance, Internet of Things, Policy & Regulation, Security

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