Opinion: Frontiers, Sovereignty and Cyberspace

ETHOS Issue 10, Oct 2011

BORDERLESS INTERNET VERSUS NATIONAL FRONTIERS

The technically borderless nature of the Internet has enabled "globalisation" and exemplifies the vision of a unified world, where frontiers would become less relevant. Hailed as a tool for cultural, political and economic convergence, the Internet is often presented as a single transnational space, governed by principles of democracy and freedom, even able to positively impact the territories of repressive regimes. More recently, major platforms for social networking, global content hosting or micro-blogging have transformed the Internet into a full social and political space, a "global polity" in the eyes of some.

In parallel, however, growing security concerns and differing national perspectives regarding freedom of expression, copyright or privacy protection on social media have triggered a worldwide reaffirmation by governments of national boundaries and jurisdictions. Indeed, national governments have struggled to adapt older laws to the new digital environment. They also face difficulties enforcing their rules and court decisions on actors located out of their borders and, at the same time, worry about the impact of other countries' legislations on their own citizens and corporations

While understandable, this trend of hardening national boundaries in the digital environment brings risks of censorship and surveillance, conflicts of jurisdiction and difficult enforceability of national laws in the absence of transnational cooperation, as well as a possible fragmentation of the Internet with a consequent loss of the benefits of its borderless nature.

A "FRACTALISATION"OF SOVEREIGNTY

Global social media platforms may be accessible in all countries of the world, and therefore potentially subject to all national laws. However, their headquarters and data centres are located in specific countries. Any user, whatever their physical location, is therefore directly or indirectly bound by the laws of that country. Furthermore, the Terms of Service (ToS) established by the said platform usually specify the applicable jurisdiction in case of dispute.

If sovereignty is the exercise of legal authority over a physical territory, this amounts to a "fractalisation"¹ of sovereignty: the jurisdiction and legal framework of one country becomes de facto applicable on the territory of another one, extending the reach of the former and reducing the sovereignty of the latter.

SOCIAL MEDIA PLATFORMS AS DIGITAL TERRITORIES?

Beyond defining the ultimate jurisdiction, social media ToS represent the de facto "internal law" of the corresponding social space, allowing the management of the company to specify privacy, freedom of expression and copyright rules. Interestingly enough, although the current major platforms are American companies and their content mostly hosted on US territory, their ToS are more restrictive in terms of the content they accept than what is allowed under the First Amendment (yet less than what certain countries impose) and their privacy protection stronger than what is allowed under American law (yet less than what Europe or Canada require). This reflects a desire to establish unified community rules, satisfying the most vocal users, and deemed acceptable in most territories.

In a way, as long as they remain on the servers, accessible through, say, www.facebook.com, the more than 600 million members of that social platform are effectively in "the digital territory of Facebook". This is likewise the case for the user-generated content hosted on global platforms such as YouTube. More generally, through the Domain Name System (DNS),² cyberspace is organised into "digital domains", each subject to specific rules contained in the ToS of the site operator: following a link to youtube.com from a page on baidu.cn³ is equivalent to crossing a digital frontier and potentially changing the applicable rules of accepted behaviour as well as the relevant jurisdiction. Could this notion of digital frontiers point to the emergence of a specific, new geography for cyberspace, based on such "digital territories"?

TOWARDS GLOBAL TERMS OF SERVICE FOR SOCIAL MEDIA?

Instead of trying to harmonise disparate ad hoc national legislations that global platforms have difficulty respecting, or fantasise about future Internet treaties, could it be possible to start from the existence of these virtual communities and encourage such social media to adopt global ToS that would be acceptable by the countries in which they want to operate? An important component of such regimes would be the availability of internal dispute resolution procedures to address in a first instance the potential conflicts, before they are brought in front of national courts.

The development of such global ToS should not only involve the users of these services but also the relevant governments and the other business entities connected to such platforms via Application Programming Interfaces,⁴ in conformity with the multi-stakeholder governance principle established by the World Summit on the Information Society.⁵ Currently, emerging discussions in the OECD regarding a possible regime for cloud computing⁶ are an illustration of such an approach.

This paradigm shift (starting from the virtual communities rather than from the national level) is not a limitation of national sovereignty — quite the contrary. It would not suppress the ultimate competence of national legal systems, but simply recognise an intermediary level of governance, fully involving public authorities (and civil society actors) in the elaboration of social media ToS.

The Internet is technically conceived as inherently borderless. Our international system, however, is based on physical frontiers defining national jurisdictions. How can the human family resolve this dynamic tension and define governance mechanisms for a common global Cyberspace and its sub-domains? The development of the Internet places the relationship between physical territories and applicable jurisdiction under a new light. The concept of digital territories may be a path to explore.

Waiting for traditional multilateral processes to produce a universal regime for the Internet is a delusion. Notwithstanding unavoidable delays, it is neither the right format nor the right procedure. Likewise, multiplying incompatible national legislations in a context of low enforcement capacity is a sure recipe for destroying the benefits of the first truly global communication medium.

In this context, it may be time to ask a key question: can physical frontiers remain the sole criteria for the determination of applicable jurisdiction in Internet-related activities, or does Cyberspace prefigure a new geography, including the concept of Digital Territories and a global, multi-stakeholder cooperation to define acceptable ToS for social media platforms?

New challenges require innovative approaches to reframe and successfully address the intractable issues we are currently facing. All public servants in the Digital Age need to develop new skills: to manage regular interactions with businesses and civil society at the national level (the multi-stakeholder approach) but also to understand how national regulations can impact other countries. The pan-jurisdiction reality of social media creates an intermediary space between the national level and treaty-based international arrangements. What will be needed are public servants who can combine technical competence and traditional diplomatic skills, and are willing to engage in new global discussions where the size of the country matters less than the capacity of its representatives to contribute to effective solutions.

NOTES

1. The term "fractalisation" is used as a reference to complex mathematical objects called fractals (discovered by French scientist Benoît Mandelbrot) that help describe self-similar and dendritic structures, such as the surface resulting from the interpenetration of two substances.
2. The Domain Name System is the hierarchical set of identifiers including generic domains (such as .com, .org, .net) and country-codes (like .fr for France) used in the address bar of browsers.
3. Baidu is the dominant Chinese search engine.
4. Application Programming Interfaces are a set of protocols that allow third-party applications to plug into the database of major platforms to enable value-added services.
5. The World Summit on the Information Society was a four-year UN Summit (2002–2005) that established the principle of associating governments, businesses, civil society and international organisations in the development and application of regimes related to the evolution and use of the Internet.