International Efforts to Regulate the Internet Continue

Over the last several years, we’ve been lectured by many that the U.S. position on Internet governance was no longer sustainable in the larger, global community.  So-called experts claimed that the U.S.’s minimal government involvement in Internet issues was no longer a prudent approach.  These “experts” added that if the U.S. just ceded on our sound principles a little bit, authoritarian governments of the world would end their continued effort to seek increased government regulation and control of the Internet.  In other words, they sought an appeasement strategy.  

We now have a recent case study of this exact approach, and it doesn’t seem to have worked.  Instead, some foreign governments have renewed their disturbing calls for government involvement in the Internet via a number of forums.  Accordingly, it’s time to reject appeasement, acknowledge the work ahead and redouble our efforts to quash these attempts using all appropriate means.

The ICANN Experiment

In October 2016, the US government officially terminated its last remaining contractual relationship with the Internet Corporation for Assigned Names and Numbers (ICANN).  Supporters of the transition argued that it was the best means for the continued growth of the Internet, but many admitted, behind closed doors, that the whole process was meant to serve two purposes: to overcome the Edward Snowden controversy and to reduce the international pressure over Internet governance issues.  Those who challenged the initial decision and its subsequent transition – of which I was one – argued, in part, that it would never serve to halt the efforts by some countries seeking international regulation of the Internet.  Despite my overall support for multi-stakeholder Internet governance methods, I didn’t believe for a second that the transition would prove sufficient to deter world despots seeking more control over the Internet. 

As we pass the six-month anniversary of the reconstituted ICANN, it only seems appropriate to assess the current situation.  Not surprising, authoritarian governments continue to persist in their efforts to have multilateral organizations, such as the UN, regulate the Internet.   Case in point, Russian President Vladimir Putin’s assistant recently stated in an interview that the ICANN transition did not change its overall stance and Russia will continue to pursue government involvement, perhaps through the U.N.’s International Telecommunication Union (ITU), in the workings of the Internet.  Below are just three examples of government actions to pursue such a path. 

World Telecommunication Standardization Assembly (WTSA-16)

At the end of October, the international community convened at the World Telecommunication Standardization Assembly (WTSA-16) in Tunisia.  This conference, held by the ITU, considered how countries should regulate technologies through the standards process to promote worldwide Internet access.  Member States specifically discussed such topics as the Internet of Things (IoT), cybersecurity, privacy, and the possible regulation of Internet companies and applications. 

Specifically, the ITU Member States embarked on a discussion of the standards needed to facilitate such regulation and deployment.  ITU participation in the Internet standards process would be a marked departure from its stated mission of international telecommunications coordination.  Since we already have several multi-stakeholder standards setting bodies, such as IEEE, 3GPP and IETF, who formulate standards for Internet, mobile and IoT platforms, the ITU’s insertion here would seem to duplicate or interfere with the work of these established organizations. 

But that wasn’t the worst idea coming out of Tunisia.  During the conference, ITU Member States decided to promote a specific technology – Digital Object Architecture (DOA) – for IoT.  This proposal is troubling in many respects.  First, DOA is capable of assigning a unique identifier to each IoT and mobile device allowing for the tracking of such equipment and, more importantly, every individual user.  In fact, authoritarian regimes are proposing the registration of all devices and users in centralized databases for the very purpose of making surveillance that much easier.  Second, if these DOA “tools” are mandated for IoT devices, it will facilitate and expedite future regulation.  Each communication could be traced allowing fees and taxes to be levied on financial transactions, purchases, or even content streaming, among other communications.  Third, abandoning technological neutrality by forcing DOA likely will stymie future innovation from competing technologies. 

Going down this DOA path essentially places the ITU in the driver’s seat when it comes to the future of the Internet.  Moreover, all of the efforts at WTSA-16 should be seen through the lens of expanding the mission of the ITU, allowing it to regulate the Internet and provide Member States with an avenue for obtaining standards and Internet controls that they are unable to get through other means.

China’s New Position Paper

In early March, China detailed, in a document entitled “International Strategy of Cooperation on Cyberspace,” its plan to seek global, multilateral governance of the Internet.  Specifically, it asserts that “[t]he international community needs to … put in place a multilateral, democratic and transparent global governance system…,” and governments should “tak[e] the lead[] in internet governance particularly public policies and security.”  The policy statement explicitly states that, as part of its “Plan of Action,” China “supports formulating universally accepted international rules and norms of state behavior in cyberspace within the framework of the United Nations, which will establish basic principles for states and other actors to regulate their behavior….”  Further, “China supports discussion on privacy protection at the UN General Assembly and the Human Rights Council, and calls for establishing relevant principles for protecting individual privacy in cyberspace.”

Whether in the guise of cybersecurity, privacy, or promoting general Internet governance, one must ask: On whose fundamental governance principles would these rules be based?  The U.S., for instance, has First Amendment and other constitutional protections, whereas China states that although it “respects citizens’ rights and fundamental freedoms in cyberspace,” these claimed rights are clearly curtailed to ensure “national security and public interests.”  I must assume that these public interests align with China’s earlier statement that limits the rights of Chinese citizens on the Internet such that:

[N]o organization or individual may produce, duplicate, announce or disseminate information having the following contents: being against the cardinal principles set forth in the Constitution; endangering state security, divulging state secrets, subverting state power and jeopardizing national unification; damaging state honor and interests; . . . jeopardizing state religious policy, propagating heretical or superstitious ideas; spreading rumors, disrupting social order and stability; . . . and other contents forbidden by laws and administrative regulations.

And, as we know, this issue is not specific to China as many governments seek to restrict Internet use by their citizens to inoculate themselves from criticism.

ITU and Over-the-Top Content

Finally, in late February, an ITU study subgroup held a meeting to discuss the growth of over-the-top (OTT) content.  During this meeting, a recommendation was put forth by Russia and some African countries to define and potentially regulate OTT, which will be considered by the full study group later this month.  This appears to be an attempt to expand ITU jurisdiction well beyond international telecommunications networks to include the Internet, as well as edge providers, including those offering video and audio streaming.  Further, the ITU Member States are considering studies on such topics as the regulatory impact of OTT services on licensing frameworks, pricing and charging, security and data protection, taxation and consumer protection.  While these studies are pushed under the pretext of encouraging competition, innovation, and investment, this should be seen for what it is: the first steps toward the international regulation of, in many cases, Internet-based edge providers.

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These are three examples of certain governments’ efforts to advocate for the international regulation of the Internet since the ICANN transition.  In merely six months, there have been multiple plans and proposals to directly involve UN entities in Internet governance.  I think it is safe to say that we got the short end of the stick.  Hopefully, a lesson has been learned and we will no longer compromise the U.S. position in order to placate those who cannot be placated.  Now, we must do everything we can to stop these continuous and systemic assaults on the Internet.   


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