What Is Happening At The ITU Plenipotentiary Conference?

By Richard Hill

There is lots going on at the ITU Plenipotentiary Conference, in particular a typical North/South clash regarding who should do what. The global South would like to see a greater role for the International Telecommunication Union in some areas, or a least a smaller role for institutions based in or dominated by the global North, whereas the global North favors the status quo. But there are many nuances, some very significant, within this overall picture.

In this article, I will comment only on one specific issue: mass surveillance and the right to privacy. That topic has been brought into the Plenipotentiary Conference through proposals from several Member States. Those proposals are publicly accessible. Not surprisingly to those who follow these matters, but surprisingly for those who still think of the USA as a champion of human rights, the USA and its close allies take the view that such matters should not be discussed within the ITU, and this despite the fact that secrecy of telecommunications (meaning privacy) has been recognized as a fundamental element of international telecommunications since the creation of the ITU in 1865, in an article in the ITU Constitution. At present, that right is enshrined in article 37 of the ITU Constitution. Some activists take the view that the current formulation is too weak and should be strengthened to reinforce privacy.

Several of the proposals presented to ITU addressed the need for principles as well as technical standards for ensuring privacy and the protection of personal data. All such proposals were presented by developing countries. According to a participant who wishes to remain anonymous, all of them were consistently and vigorously opposed by not only the USA but also by its European allies, which is incongruous in light of the public stance in favour of privacy and the protection of personal data taken by those very same countries, and by European courts.

As noted above, it was said that the ITU is not a proper forum to discuss these matters (thus apparently ignoring the cited article of the ITU Constitution). To the extent that anything was said about what forums would be proper, they appeared to be saying that privacy and data protection issues should be sorted out between Europe and the US in forums which exclude the global South. So it is not clear what international forums the global South can use to address its concerns.

A specific proposal from India has drawn criticism, because it is seen as an attempt to give more control to national governments. But it can also be seen as an attempt to lessen US extra-territorial control and to take action in the absence of international agreements. The specific measures proposed by India would tend to make the current trans-national system of IP address allocation more like telephone numbers, nationally bounded and subject to national control.

Those who object to such a change seem to ignore the fact that it is an inevitable reaction to the USA’s abuse of its dominant position, and in particular an inevitable reaction to the USA’s insistence on intercepting and monitoring all Internet traffic, often without any meaningful judicial oversight.

In that light, India’s call “to develop and recommend public telecom network architecture which ensures effectively that address resolution for the traffic meant for the country, traffic originating and terminating in the country/region takes place within the country” would not appear to be unreasonable. Indeed, states are responsible for protecting human rights, which of course include the right to privacy.

If the US refuses to negotiate an end to its current mass surveillance practices, then other states are bound, under international law, to take steps to prevent the US from carrying out such surveillance within their territories. And the proposal put forward by India does exactly that.

Indeed, a participant (who wishes to remain anonymous) reported that, during the discussions in the ITU, it was said that the Indian proposal protects privacy, because the lesser the number of states that traffic goes through, the lesser the chance for illegal surveillance. Further, traffic that stays inside a jurisdiction where a citizen has some kind of judicial redress is better protected against privacy violations than traffic that moves through jurisdictions (such as the USA) in which redress is not available to foreigners.

Other aspects of the Indian proposal might be inappropriate, but that should not be used as an excuse to push aside completely the need for countries to take national measures to prevent the USA from continuing its current mass surveillance practices, which violate international law.

Richard Hill is an independent consultant in Geneva who was formerly a senior staff member at the UN International Telecommunication Union (ITU), recently published, “The New International Telecommunication Regulations and the Internet: A Commentary and Legislative History.”

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