By Toby McIntosh

The existence of a special website for leaked documents from an international standard-setting body would appear to suggest major transparency problems.

The reality is more complex. The leaks come with a wink.

It’s an open secret that the hundreds of documents on WCITLeaks.org come directly from the website of the International Telecommunication Union.

The documents are not available to the general public on the ITU website. The WCITLeaks operators use a password given them as members of the U.S. delegation representing a nongovernmental organization. U.S. officials won’t officially disclose the ITU documents, although they are not “classified” or “sensitive.”

Wait, NGOs on official delegations? That’s extremely rare among international organizations. But they are members of some delegations to the ITU.

And that’s scarcely the only unusual characteristic of the ITU.

Notably, there’s the complicated system of membership in the UN-affiliated body. The ITU was created in 1935 as the successor to even older organizations, begun in 1865, to regulate the telecommunications world.

The 193 government members make the decisions, but others can pay to become non-voting “members.” These are primarily corporations and associations. One of the main benefits of ITU membership is a passwords to the ITU website to access working documents.

Whether the ITU will modify this arrangement remains uncertain but new pressures are being felt.

Historical Background; New Pressures

The ITU’s semi-transparency derives from historical circumstances and modern pressures.

The often highly technical discussions were always of special interest to the private sector. Because governments needed technical expertise, a system was established through which “memberships” were sold.

This opened up the ITU to those who could afford it. Membership rates vary, but run into the tens of thousands of dollars.

In recent years, fee waivers were provided for nongovernmental organizations, but the costs are still considered too high by NGOs.

Simmering discontent about access and inclusion boiled over as the ITU in 2012 was thrust into the limelight with a controversial debate about who should “govern” the internet.  The ITU doesn’t govern the internet, but the topic was front and center at the World Conference on International Telecommunications (WCIT) held in December of 2012 in Dubai.

The build-up in the year preceding the meeting brought new attention to the workings of the ITU. Many NGO observers feel the agency responded well, if not fully.

Most notably, the ITU released a summary of all the proposals made available in advance by the member nations. While valuable, this version did not identify the identities of the nations making the proposals.

A version that did identify the proposers had already been posted on WCITLeaks, which was created in June. It was downloaded about 4,000 times.

The ITU continued its effort to be more transparent during the Dubai meeting by posting working documents, mainly member government proposals, as the talks proceeded.

Also at the Dubai meeting, the ITU allowed stakeholder attendees to observe many negotiating sessions and many sessions were webcast.

As the talks ran into difficulty in the final days, the chairman convened selected representatives for closed door, late-night sessions in an unsuccessful effort to hammer out a deal.

One of the WCITLeaks founders, Eli Dourado wrote an evocative of the final days that also points out the importance of the exchange of documents. Among other moments:

Amid this frustration, host country United Arab Emirates (UAE) dropped a bombshell. It announced that it was putting forward a new “multi-regional common proposal,” a complete rewrite of the treaty to substitute for all the bracketed text we had worked on. It had support from numerous member states. Bahrain, Russia, Iraq, Saudi Arabia, and Oman all expressed support for the document, which was not yet available for inspection.

The US delegation went to bed on Friday evening still not having seen the new document. It was not available in the ITU’s document system, despite promises from the UAE to submit it immediately following the Friday Plenary. On Saturday morning, I heard from a few people that they had seen it in paper form. Finally, around noon on Saturday, WCITLeaks received and posted a version of the multi-regional proposals.

The posting goes into minute-by-minute detail before concluding:

While we were able to make some WCIT documents public, the group’s formal processes remain arcane and fundamentally closed.

Some of the WCIT meetings were webcast—which was good—but then the most important decisions were pushed to back rooms. And the months of false assurances that the Internet would not be up for discussion at the WCIT represent the opposite of transparency; they look in retrospect like simple obfuscation.

Can the ITU and its member states truly embrace transparent processes? Perhaps—but there’s a long way to go. And the future direction of the Internet could be at stake.

Subsequent Transparency Effort Defeated

Despite the ITU’s porousness, efforts to force – and prevent – more official transparency are ongoing at multiple levels.

The most recent push to force more transparency failed, however.

In June of 2013, Sweden, Poland and the United States tried to open up the deliberations of a key ITU working group – the Council Working Group on Internet Related Public Policy Issues (CWG-Internet).

Fittingly, their specific proposals were not made public officially, but leaked. See the submissions by the United States, Poland and the two proposals from Sweden (here and here).

The resolutions suggested that the Council Working Group operate in the open, that nongovernmental stakeholders be allowed to participate and that all documents related to discussions about internet policy and the preparations for the plenipotentiary be made public. The motions provided for discretionary nondisclosure in certain instances.

The proposal lost despite support from the developing world, as discussed by US Assistant Secretary of Commerce for Communications and Information Larry Strickling in videoed remarks at Columbia University’s Institute for Tele-Information.

While the opposition is described as coming mainly from Middle-Eastern countries, there are no minutes that document that, or records of votes, because the Council operates by consensus.

Civil Society Advocacy

The debate is not expected to go away. Civil society has been ramping up the pressure in recent years

A proposal from civil society in June of 2013, endorsed by 37 organizations, suggested “open, transparent, and multistakeholder debate.” (See descriptive Access blog post.) There have been similar letters in recent years.

Reflecting past frustrations, the recommendations were at times quite specific. Invitations to stakeholders to attend meetings, the letter says, should be sent out at least 90 days ahead of time. This recalled an instance in 2012 when the ITU invited CSOs on such short notice that only one person was able to make it.

The ITU should establish clear procedures for submitting official documents, the CSOs also said.  Further, the rules allowing for participating in meetings should be clear, including for remote participants, according to the CSO petition.

Reformers now are looking forward to an October 2014 meeting in Busan, Republic of Korea, where participation and transparency are expected to be discussed at the Plenipotentiary Session.

Touré Supportive

ITU Secretary General, Hamadoun Touré, has been encouraging on the themes of participation and transparency.

In January of 2013, an information note was posted as an official WCIT document reporting on an “ongoing and constructive dialogue with Civil Society,” according to a posting by Access, an international NGO based in New York. Among other things, the note included an annex containing comments that NGOs had sent in to a new web page established by ITU to gather public comments on WCIT from civil society groups.  Ironically, noted Access, an NGO based in New York, the note was “locked behind password protection.”

In July, Touré supported engagement with civil society in closing remarks to the ITU Council meeting where the three-country motions were voted down. He said:

Council confirmed that the Secretary-General can carry out or facilitate informal consultations with stakeholders. I look forward to engaging with all stakeholders on international Internet public policy-related matters and to bringing the essence of these discussions to the Council Working Group on this issue for information.

Touré has told civil society representatives that he will personally consult with them and pass along their concerns.

Access reacted critically, commenting:

While we appreciate Toure’s openness to meeting with civil society, this type of informal consultation is not nearly the type of change many hoped for in Geneva. Essentially, the status quo remains unchanged. Civil society participation remains limited to advising the Secretary General or their National delegations, which isn’t really participation at all. These exclusionary methods are neither in the interest of ITU member states nor other relevant stakeholders.

Documents Not Available

Despite the widespread informal availability of many documents, ITU documents are not available freely for public scrutiny online.

Nor does the ITU have a disclosure policy or a system for making document requests.

Member countries are free to release their own submissions, a modest advance that came in 2012 when the ITU leadership indicated that it had no objections to such releases.

Access to the ITU database of documents, however, is restricted by what critics term “a paywall.”

Members who pay fees to the ITU receive a password to TIES, the Telecommunication Information Exchange Service. The level of access depends on the type of membership.

An ITU official said there is a membership of 750- private-sector entities and academic institutions. ITU membership includes the world’s largest manufacturers and carriers as well as smaller firms, along with leading R&D institutions and academia. There are 577 “sector” members, 162 “associates” and 65 from “academia,” according to a website breakdown.

The benefits of membership, are laid out on the ITU website. With regard to documents, the site says: “Get access to a large volume of restricted data such as draft working documents, statistics, training modules, etc.”

The listed “benefits of joining ITU” include

Network with ICT regulators, policy-makers and experts from industry and academia

Contribute to global standards and best practices

Advise governments on ICT strategies and technologies

Participate in Study Groups on emerging issues in the ICT field

Share your expertise and access training and specialized seminars

Engage in global and regional debates

Launch innovative public-private partnerships

Get access to world-leading ICT statistics and studies

Varied Costs, Discounts

The costs vary by the kind of membership and which of the three sectors members join. There are three: Radiocommunication (ITU-R), Telecommunication Standards (ITU-T), and Telecommunication Development (ITU-D).

A “sector” member can participate in every study group of the sector it is a member of, while an “associate” can participate in only one study group per sector. Also sector members can take part in the final stage of recommendations approval and hold positions of study group chairs and vice-chairs, while associates cannot, an ITU official explained.

An ITU official elaborated: “While Associates can only see the documents referring to the Study Group they joined, Academia and Sector Members can get the documents of all the Study Groups of their Sector, in addition to the documents of their Sector’s Advisory Group and Assembly. Sector Members also get access to ITU’s Council and Plenipotentiary Conference documents, just as the national government members do.”

The fee to be a sector member of ITU-R or ITU-T is $35,000. Associate membership is about $11,700. The discounted rate for organizations and academia from developing countries is about $4,350. The rates for ITU-D are about two-thirds less. Organizations can join any or all of the three sectors. There are no individual memberships.

Some discounts are provided.

There approximately 25 such members, such as the Internet Society. A spokesman noted that no group fitting the criteria has been refused.

The ITU Council “may exempt organizations of an international character from payment, subject to “reciprocity” (in accordance with No. 476 of the convention),” according to an ITU official. “The “reciprocity” is taken to refer to the mutual benefits that could accrue to both ITU and the organization concerned as a result of the latter participating in the relevant activities of ITU. To fulfil the conditions which lead to such a reciprocal arrangement, the organization concerned shall:

–           be an organization of international character dealing with telecommunications;

–           be non-profit-making;

–           have members whose participation in ITU activities would be beneficial to the aims of the Union;

–           allow ITU to be represented at and participate in the organization’s meetings free of charge;

–          allow ITU access to relevant documentation.

(Please indicate the type of information ABU could make available to ITU and the mechanism or format, e.g. electronic, paper, etc.)

CSOs on Delegations

Unusually, national delegations to the ITU can invite private sector and NGO representatives to join their delegations and include them to whatever degree they want.

This practice, while utilized by only about 30 nations, provides insight on the process and access to materials.

This arrangement has mutual benefits, according to persons who have been on the US delegation. Governments benefit from having experts at hand.  The NGO and private sector participants benefit by having more opportunity to exert influence and gain inside knowledge. The insights can be used “to report back to the mother ship,” as one person put it.

Nongovernmental “delegates” get access to information provided member governments. They can attend ITU committee meetings not otherwise open to the public, but can’t speak at them or submit written interventions unless they are taken onboard by a national delegation.

Civil society letters to the ITU, such as one in February 2013 stress that being a member of a delegation is not a substitute for “independent engagement.”

Leaks Website Created

WCITLeaks.org was created by two American academics, Eli Dourado and Jerry Brito. Documents “can be anonymously submitted to us, and we will publish them here,” says the website’s open invitation. The site publishes the documents in English, though the ITU website is maintained with translations into the six UN-recognized languages. Dourado and Britto, who operate the site at low cost, described its origins in a 2012 article. They now have password access that enables them to choose documents to publish.

The creation of the site sparked ITU response, Dourado later wrote:

We launched on Wednesday and, within hours, we had our first leak—a draft of the new treaty containing several options for revisions to each provision, including some that addressed Internet issues. The next day, we received the infamous ETNO proposal drafted by European telecom giants, which would have applied the “sender-pays” rule from telephone service to Internet data transfers. A few days later, we posted a compilation of every single proposal that had been made so far.

The increased transparency did have an effect on the ITU. A mere two weeks after we launched our site, Touré announced that he would recommend making WCIT-related documents public—a recommendation largely rejected by the ITU Council, which released a single document that was already available on WCITLeaks. The additional transparency also had an effect on some ITU member states, which simply withheld their most heinous proposals until the conference neared. Not until mid-November, for instance, did Russia put forth its proposed revisions. These contained an entire new article called “Internet.”

Small Steps Toward Inclusivity

Since the Dubai conference in December of 2012, the ITU has won qualified praise from NGOs for inviting civil society experts to join an Informal Experts Group (IEG) preparing recommendations in advance of the May 2013 World Telecommunication/ICT Policy Forum (WTPF).  The policy forum is not a treaty-drafting body, but is influential, and was the first major ITU meeting on internet governance since the impasse in Dubai.

The process was not altogether positive, as a civil society letter of June 2013 would summarize:

Civil society was invited to join late in the process just before the final IEG meeting. Therefore, contributions from members of the IEG with a civil society background were limited to the final IEG meeting. Additionally, because of the late notice, only a few members from civil society were able to join, and in fact only one person was able to attend in person. In part, this was a result of the absence of financial means to support participation by civil society recognizing that civil society in these contexts has no external means of financial support.

Another complaint was that members of civil society who did not join the IEG “were not able to even submit information documents for the meeting,” the letter also said. “Amongst the documents that could not be submitted was a statement endorsed by 39 civil society groups and individuals from all regions at http://bestbits.net/wtpf-2013/. Finally, the letter said, “It was not clear that only IEG members would have participation rights at the WTPF, otherwise others may have joined.”

Access produced a document describing how civil society could participate. The CSO participants on the IEG had speaking right, but not others accredited as “public attendants.”

The WTPF meeting was live webcast in English and live captioned in the six official UN languages.

Nevertheless, CSOs have referenced “the success of the IEG model” and called it a good first step while pointing to “shortcomings.”

The June 8, 2013, statement commented favorably:

We commend the steps taken by the ITU to show more openness and inclusiveness in the WTPF process through the Informal Experts Group. We believe that the multistakeholder nature of the IEG meetings and the willingness of all stakeholders to work together, contributed to bringing about the credible texts that were forwarded to the WTPF.

In order to improve such multistakeholder participation, the CSO letter recommended:

• Outlining clear procedures for inviting interested parties to Council Working Groups, at least 90 days prior to the relevant meeting dates.
• Issuing clear procedures for all the stakeholders to submit documents for consideration.
• Establishing mechanisms for remote participation, allowing not only for remote participants to follow the debate, but also to request the floor.

Past Advances

Also in 2012, the ITU made some other openness moves.

The ITU Council on July 13 announced (See previous FreedomInfo.org report) its intention  release “of the latest version of TD64,” the document summarizing more than 450 contributions that members had submitted during the preparatory process of the Dubai meeting, also known as WCIT-12. (See previous FreedomInfo.org report.)

A press release about the Council decision said that Touré “stressed” that member states should translate documents into national languages and hold national level consultations.

The Council also agreed to create a website page where stakeholders can express their opinions.

The release of the TD64 was lauded, but came after an even better summary of positions (TD62) had been posted on WCITLeaks.

The Center for Democracy and Technology, a Washington-based nongovernmental organization, said in a blog post at the time that the ITU’s action was a “very small … first step toward transparency.” Cynthia Wong wrote, “The vast majority of documents related to the WCIT process, including specific positions governments are taking on behalf of their citizens, remain locked behind a password wall and are only available to Member States and Sector Members.”

She further wrote:

The document the Council has decided to release, called TD-64, does not provide any information about which governments proposed specific text and whether that proposal has support of other governments. That information is provided in the “matrix” document TD-62 (leaked here), which collects all of the proposals made thus far and includes necessary commentary from Members about the asserted need for proposed amendments as well as the potential impact proposals would have on the Internet. This information is vital, both for understanding the complexity behind seemingly subtle changes to the treaty text, and for allowing civil society to engage in public discussion with government and experts to weigh in on the proposals’ human rights or technical impact.

Wong also said:

Perhaps the most significant statement out of the meeting was the Secretary General’s clarification that “all ITU members have full access to all WCIT-12 documents and can share them within their constituencies.” That means the ITU has given a clear signal that it is placing the onus for transparency and participation back on Member States. The question is whether and how member states will take up the challenge.

CDT believes each Member State of the ITU needs to move quickly to:

•         Publicly release preparatory documents for the WCIT, including revisions of the TD-62 compilation of Member State proposals and the final report of the Council Working Group
•        Publicly release the Member State’s own proposals for revising the treaty
•        Convene open, public consultations to solicit input from all stakeholders to inform the Member State’s positions in advance of the WCIT.

A brief examination of documents released so far reveals that Member States and industry members are proposing matters that go to core issues of policy and the technical functioning of the Internet—including but going far beyond mere technical matters. Member States must take the steps outlined above to ensure full consideration of the proposals’ impact on Internet openness, human rights, and economic growth.

In May 2012, before the Council meeting, a coalition of 30 interest groups wrote that “[t]he current preparatory process lacks the transparency, openness of process, and inclusiveness of all relevant stakeholders….” (See announcement on Article 19 website.)

The critics asked that the organization “remove restrictions on the sharing of WCIT documents and release all preparatory materials, including the Council Working Group’s final report, consolidated reports from all preparatory activity, and proposed revisions to the International Telecommunication Regulations.”

In addition, they said, that preparatory process be opened to meaningful participation by civil society “in its own right and without cost at Council Working Group meetings and the WCIT itself, providing formal speaking opportunities and according civil society views an equal weight as those of other stakeholders.”

Member states should have “public processes at the national level to solicit input on proposed amendments to the International Telecommunication Regulations from all relevant stakeholders, including civil society, and release individual proposals for public debate.”

After the Dubai meeting, civil society commented on the process and met with Toure, who himself issued a formal response, all described in an Access article.

Touré’s “information note” posted by Access in January 2013 responds to concerns raised in a Dec. 9 letter from members of civil society and provides an account of a December 10 meeting between Touré and CSO representatives.

The information note includes an annex containing submissions from civil society to the ITU’s public comment platform for WCIT. This responded to a CSO request that these submissions be made part of the official historical record of WCIT. Some members of civil society reiterated this request in a separate post-WCIT statement issued on December 28.

“It is unfortunate that while the information note responds to concerns communicated by members of civil society to the ITU, it is addressed to Members of the ITU and locked behind password protection for which only governments and sector members have access,” according to the Access article of Jan. 7 by Deborah Brown. The information note is available here.

In February of 2013, CSOs sent another letter to Toure, outlining “familiar barriers to participation.” The\requests described by Access involve the IEG and the May WTPF.

Longer History

Efforts to make the ITU inclusive have a long history.

A detailed account of the situation as of 2009 was written by Robert Horvitz entitled “Towards an Open ITU.”

Among other things he traces the creation of the sector and associate members system in the 1990s, paying particular attention to low participation by civil society organizations. Horvitz documents a series of recommendations made in the early 2000s from within the ITU to increase participation.

His commentary stresses that the work of the ITU is not just for engineers and that the ITU agenda has “shifted from the development of technology to technology for social development.” He wrote: “There has been a lag in the `cultural shift’ which must accompany this change, as well as a lag in public perceptions of the ITU. But these only increase the importance of CSO engagement.”

Filed under: IFTI Watch