By: Caitlin Willen
This report examines Chile’s draft decree in light of its status as a member of the International Telecommunications Union (ITU). Despite Chile’s membership status, Chile’s draft decree threatens to place the nation at odds with the ITU’s governing principles. If enacted, Chile’s draft decree would oblige telecommunication companies to store data on electronic and media communications—such as phone calls, e-mail and text messages—generated by anyone living in Chile for a minimum of two years. Presently, telecommunication companies are only required to store data for a one-year period. In addition to prolonging the storage life of data, Chile’s draft decree also expands the type of data which telecommunication companies may retain.
With roots tracing back to 1865, the ITU is currently housed within the UN as a specialized agency geared towards “facilitat[ing] global interconnection and interoperability of telecommunication facilities and to promot[e] the harmonious development and efficient operation of technical facilities, as well as efficiency, usefulness and availability to the public of international telecommunication services.”
For that purpose, the ITU allocates its labor among three sub sectors: the Radiocommunication Sector, the Telecommunication Standardization Sector and the Telecommunication Development Sector. Individually, the Radiocommunication Sector regulates the frequency spectrum and tracks the location of geostationary satellites while the Telecommunication Standardization Sector focuses on the standardization of communication technologies, operations, and tariffs. The final branch takes on an administrative role by “coordinating the responsibilities of the ITU as a specialized agency of the United States . . . [administering] development projects funded by other organizations, conduct[ing] research into issues affecting telecommunications in developing countries and otherwise promot[ing] and organiz[ing] telecommunication cooperating and aid activities in the developping world.” Taken together, the General Secretariat provides the necessary administrative support requisite for the system to function as an international forum for members to negotiate regulation of telecommunication traffic.
Procedurally, the negotiation process is governed pursuant to The Constitution of the International Telecommunications Union and the Convention of the International Telecommunications Union, both of which are dually supplemented by Administrative regulations. The Constitution sets forth the core principles of the ITU, membership criterion, and an outline of the basic organizational structure, identifies voting rights and procedures, sets out financial arrangements, and implements a dispute resolution policy. The Convention fills in gaps by defining the operational procedures of various ITU organs in terms of election procedures and terms of service for ITU officers. Addressing any remaining legal uncertainty, the Resolutions give instructions pertaining to each sector’s organization, methods or programs.
Furthermore, the Constitution of the International Telecommunications Union is the controlling authority relative to the Convention of the International Telecommunications Union and any Administrative Regulations.  Between the Convention and any Administrative Regulation, the Covenant is accorded greater authority. Nevertheless, these Administrative Regulations still supersede Recommendations developed by the ITU’s three sectors. As the lowest common denominator, Recommendations do not by default possess the authority to bind member states, unlike the other aforementioned legal instruments. All four authorities are still subject to amendment.
As the “premiere organizational activity” for the ITU, the Plenipotentiary Conference’s jurisdiction is not limited to Constitutional questions. At the most recent Plenipotentiary Conference in 2014, member states adopted Resolution 71 authorizing actors in the ITU’s three sectors to develop a “strategic development plan” for an upcoming three-year period. To provide further guidance on the Resolution’s instructions, the Plenipotentiary Conference noted that:
“[a]s a United Nations specialized agency . . . [the] ITU . . . recognizes the overarching pre-eminence of human rights, including the right to freedom of opinion and expression, which includes the freedom to seek, receive, and impart information and ideas through any media regardless of frontiers, and the right to not be subjected to arbitrary interference with privacy.”
As a member state that voted to adopt the Final Acts of the 2014 Plenipotentiary Conference, Chile is bound by the Final Acts. Yet it remains unclear that Chile’s draft decree amounts to a violation of Plenipotentiary Conference’s Final Acts. Indeed it may not even matter; even if Chile’s draft decree amounts to a violation, the ITU is ill-equipped to impose any meaningful sanction for member states’ wrongdoing.
If anything, Chile’s draft decree may present a threat to the human right to privacy. Unfortunately, while the ITU’s Constitution provides for the International Court of Justice’s jurisdiction to adjudicate cases, no ITU-related case has been brought before the ICJ.  Even so, ICJ precedent hints that were the case brought before the ICJ, the court is likely to find that Chile’s draft decree may implicate the right to privacy. In Google Spain v. AEPD and Mario Costeja González, the ICJ held that Internet search engines must consider an individual’s request to remove data storing “information relating to that person” such as the individual’s name which was originally generated in connection with an Internet search by the complaining party. In short, the Court held that persons have a “right to be forgotten” when it comes to certain types of data.
Given the deference to member states in the ITU Constitution, Chile’s draft decree likely falls far short of conflicting with the ITU’s stated purpose. Under the Constitutional amendment reflected in Article 32B at the 1998 Plenipotentiary Conference, “[i]f any decision appears to a [member state] to be such as to prevent the government from consenting to be bound by the revision of the Administrative Regulations, this [member state] may make reservations, final or provisional, regarding that decision . . .”. In essence, this power allows a member state to accept legislative authority in a noncommittal way by saying “we agree but we don’t.” Unquestionably, the discretionary authority as it relates to compliance with ITU legal mandate dilutes any enforceable character that the ITU’s treaty character may have. Taking advantage of the “out,” Chile “in signing the final Acts of the Plenipotentiary Conference of the  International Telecommunications Union . . . reserves for its Government the right to make whatever reservations may be necessary . . . to safeguard its national interests should any of the provisions thereof conflict with its legislature. Chile shouldn’t have gone to the trouble. After all, the stoppage of telecommunications clause offers a similar carte blanche by ceding to member states “the right to cut off, in accordance with their national law, any other private telecommunications which may appear dangerous to the secretary of the State or contrary to its laws, to public order or to decency.” 
Disregarding those provisions, the ITU does not provide an adequate forum to resolve disputes arising under its purview. Under Article 56(2), nations party to the ITU may enter into binding arbitration when no other mechanism is found to be mutually acceptable. A modest measure on its own, the safeguard is further diluted by the fact that the provision may only be utilized if both countries have adopted the Optional Protocol on the Compulsory Settlement of Disputes Relating to the Constitution of the International Telecommunications Union, the Convention of the International Telecommunications Union, and the Administrative Regulations. Assuming all such conditions are satisfied, the mechanism falls to a more fundamental flaw: as a mechanism which relies on negotiation, its continued and long-term application will likely yield inconsistent results across similar disputes and the tendency for negotiation power to supercede reasoned outcomes.
In sum, although Chile purports to adhere to its human rights commitments as a member-state with the ITU, Chile likely remains unhindered in signing its draft decree into effect. At the very most, the ITU could compel Chile to binding arbitration—a relatively weak enforcement mechanism, given the fact that the other member-state must have agreed to a host of documents, and which Chile may be able to bypass altogether through the power it has reserved for itself.
 José Miguel Vivanco, Chile’s Troubling Move Against Privacy, Huffington Post, Sept. 10, 2016, available at http://www.huffingtonpost.com/entry/chiles-troubling-move-against-privacy_us_59b429afe4b0bef3378ce0b8?section=us_world-news.
 International Telecommunications Union, Final Acts of the World Administrative Telegraph and Telephone Conference, Melbourne 1988, International Telecommunications Regulations art. 1.3 (1989), available at http://www.itu.int/dms_pub/itu-t/oth/3F/01/T3F010000010001PDFE.pdf [https://perma.cc/W3V3-BBVE].
 Lawrence D. Roberts, A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union, 15 Berkeley Tech. L.J. 1095, 1116 (2000).
 Richard S. Whitt, A Deference to Protocol: Fashioning a Three-Dimensional Public Policy Framework for Internet Age, 31 Cardozo Arts & Ent. L.J. 689, 761 (2013).
 Lawrence D. Roberts, supra note 2 at 1116.
 Id; see also Sana Ahmed, Censorship and Surveillance in the Global Information Age:–Are Telecommunications Companies Agents of Suppression or Revolution?, 4 Case W. Reserve J.L. Tech. & Internet 503, 514 (2013).
 International Telecommunications Union Res., Radio Communications Assembly (Oct. 26-30, 2015), available at http://www.itu.int/pub/R-RES [https://perma.cc/J49E-TWKG].
 Telecom Vanutatu Ltd v. Optus Networks Pty Ltd. [No. 3] (2008) NSWSC 120.
 Id; see also ITU-T Recommendations, ITU (Oct. 2, 2017), (explaining that recommendations are not mandatory until they are adopted in national law). ???what is this???
 Roberts, supra note 2, at 1116.
 Ahmed, supra note 9, at 1116.
 International Telecommunication Union, World Conference on International Telecommunications, 2014, Final Acts of the World Conference on International Telecommunications, Resolution 71, available at https://www.itu.int/en/plenipotentiary/2014/Documents/final-acts/pp14-final-acts-en.pdf/ [https://perma.cc/6NT8-P5MC].
 International Telecommunication Union, World Conference on International Telecommunications, 2014, The Following 150 Member States have signed the PP-14 Final Acts, available at http://www.itu.int/en/membership/Documents/signatories-pp14.pdf [https://perma.cc/6ZDJ-U4L7].
 Patrick S. Ryan, The ITU and the Internet’s Titanic Moment, Stan. Tech. L. Rev. 8, 17 (2012).
 See generally id. (explaining the ITU’s short comings in international arena as enforcement mechanism).
 Id. at 60.
 Anupam Chandler & Uyên P. Lê, Free Speech, 100 Iowa L. Rev. 501, 541 (2015).
 International Telecommunication Union, World Conference on International Telecommunications, 1988, Final Acts of the World Conference on International Telecommunications, art. 32B, pg. 76. (is this the same as note 1?)
 Patrick S. Ryan supra note 21, at 62.
 Id. at art. 32B, pg. 124.
 Constitution of the International Telecommunications Union, Jan. 1, 2012, 1825 U.NT.S. 31251.
 Roberts, supra note 2, at 1116.
 Id. (Notably, The Optional Protocal outlines a procedure which is implicated when a noncooperating party fails to fulfill its obligations to appoint an arbitrator within three months from receipt of notice of the arbitration).
 see International Telecommunication Union, supra note 21 at Resolution 71.