OTTs at the ITU: A Case of Over the Top Mandate Expansion

Last Wednesday, Saudi Arabia lifted its longtime ban on access to Internet-based voice and video calling services such as Skype, WhatsApp, and Signal. The ban was enacted in 2013, following vague claims by the government that these Internet applications had failed to comply with national regulations. Ostensibly, this swift policy reversal implies a major step forward for freedom of expression online. It’s an interesting development, especially considering that last Monday, just days before the ban was lifted, Saudi Arabia joined ARTICLE 19 and other stakeholders at the ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet) for an open consultation to discuss the policy considerations of over-the-top services (OTTs).

So, what exactly are OTTs? In recent years, the term has gained some traction among telecom service providers and others to imply Internet telephony applications (like Skype, WhatsApp, and Signal) that appear to provide similar services to “traditional” telephone voice calling or SMS. They’re termed OTTs because they run “over the top” of telecommunication networks. That may sound reasonable—until you realize that this explanation falls flat. Because while it may be true for Internet telephony applications, it’s equally true for every other Internet application out there. The Internet as it exists in our everyday lives—the websites we visit, the platforms on which we continuously exchange information—runs on top of IP-enabled networks, which include telecommunication networks. It’s clear, then, that any discussion of the policy considerations of OTTs could have fundamental and far-reaching consequences for the Internet. In the case of the ITU, that’s an especially problematic prospect.

As we’ve discussed in previous posts, the ITU is a UN specialized agency that is generally mandated to address aspects of transnational telecommunications infrastructure. Historically, these aspects have included radio frequency distribution and telephone numbering resource management; however, the ITU has increasingly sought to push its mandate into Internet-related standards and policy development. More recently, it has demonstrated interest in OTTs. In fact, we wrote about a recent example last November, when OTTs cropped up during discussions at WTSA-16.

At the CWG-Internet open consultation, we heard the same positions we’ve heard for years from certain ITU Member States, including Saudi Arabia and Russia, that have tried to convince us that the policy and regulatory aspects of OTTs do fit within the ITU’s existing mandate. Namely, that:

  • Because telephone voice calling and SMS are already under the remit of the ITU, it can also address OTTs that provide similar end products; and that
  • OTTs are economic disruptors that cannibalize and threaten “traditional” telecom services by offering cheaper or free alternatives.

However, we remain unconvinced. First, even though the end products may look similar, telecom services and OTTs operate through different technologies, and so exist in different market environments. They have different pricing structures, resource demands, and profit models. (To learn more about the differences between telecom services and OTTs, read this policy resource by Access Now.) Second, protectionism is not a valid determinant of policy or regulation—especially when robust competition is crucial to the development of greater and more affordable infrastructure access.

Even as we dismiss these arguments, we recognize that there’s a bigger issue at stake. OTTs operate at the content layer of the network: they are the platforms on which Internet users generate, consume, and exchange information. This layer is what makes connectivity meaningful, what elevates the Internet from a network of networks to a civic space for economic, social, civil, and political development. The ITU may address aspects of telecommunications infrastructure, but this mandate does not provide authority to address everything that operates over it.

Recently, governments around the world have increased efforts to regulate OTTs—whether Internet telephony applications or otherwise—in ways that threaten human rights including freedom of expression, freedom of association, and privacy. Regardless of the recent reversal, we haven’t forgotten that Saudi Arabia enforced a total ban on external telephony OTTs that lasted years; the UAE continues to do so. Numerous governments including the UKFrance, and Germany have called on OTTs such as WhatsApp to create backdoors for intercepting encrypted communications, a move that would undermine the security of all users and especially endanger human rights defenders, political dissidents, and marginalized groups. And regulatory regimes around the world, including in Thailand, have moved to place greater intermediary liability on OTTs to block content. Placing greater burdens on intermediaries to regulate content on their platforms fuels over-censorship of legal content and leads to self-censorship among Internet users.

Clearly, discussions of the policy and regulatory aspects of OTTs must be carefully balanced to avoid the risk of restricting the free flow of information, violating net neutrality, or stifling innovation. However, the ITU is a multilateral and highly politicized space that suffers from a lack of transparency and openness. Its outcomes, including recommendations and standards, are susceptible to capture by the interests of select Member States that may seek to legitimize ongoing efforts to restrict Internet freedom within their borders. It’s why we’re concerned by the CWG-Internet’s decision to bring discussion of OTTs to the ITU, and why we joined partners and other civil society groups including Global Partners Digital, Public Knowledge, and Access Now at the physical meeting of the open consultation.

ARTICLE 19’s position is clear: the ITU does not have a mandate to discuss issues of online content, and therefore must not address OTTs. Any discussion of the regulatory or policy aspects of OTTs must be driven by the public interest, which should be determined through a human rights framework. These discussions must be conducted in open and transparent forums.

It’s crucial for civil society to actively participate in the ITU’s open consultations, not only by submitting written contributions, but by presenting these positions at the physical meetings—whether in-person or remotely. Even if ITU decision-making remains behind closed doors, robust civil society participation at the open consultation phase can nevertheless bolster Members that seek to curb the ITU’s penchant for mandate expansion while putting pressure on those that don’t.

Even as it announced the policy reversal on Internet telephony applications, the Saudi telecom regulator, the Communications and Information Technology Commission (CITC), stated that it would continue to supervise and monitor use of the newly available OTTs. Just days earlier, Snapchat had complied with a request from CITC to remove Al Jazeera’s Arabic-language channel in accordance with the national anti-cybercrime law. The ban may have been lifted, but the local regulatory environment continues to throttle freedom of expression in Saudi Arabia. If left unchecked, the consequences of the ITU’s ongoing push toward OTTs may only serve to reinforce it.

Our submission to the CWG-Internet open consultation is available here. To read the meeting report of the open consultation, follow the link provided here.