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Sovereignty and the Geography of Cyberspace

Bertrand de la Chapelle

The cross-border nature of the Internet challenges an international system based on separate national jurisdictions. Unfortunately, discussions among governments on this growing tension easily spiral into ideological infighting about the application of sovereignty.

Early November however, 1600 participants from 100 countries gathered for the 7th annual Internet Governance Forum (IGF). Coming from governments, business, technical community, civil society and international organizations, they shared experiences and concerns - without any distinction of status and on an equal footing - in more than one hundred self-organized workshops. Several sessions showed that it is possible to address the relations between the Internet and sovereignty in a responsible manner.

Cyberspace is a collection of shared spaces

By construction, the Internet is a global, technically borderless infrastructure. Unlike the telephone network, its system of names and addresses was voluntarily conceived without direct reference to geographic boundaries. More importantly, the Internet is built on a layered architecture that clearly separates the Internet routing system (and the applications it supports) from the underlying physical telecommunications infrastructure. These fundamental design principles are crucial to the Internet we know today: they are the main reason why it could so rapidly scale up to billions of users and enable unprecedented innovation.

The resulting Cyberspace is a cross-border environment, a collection of shared spaces allowing people to interact on a daily basis across national frontiers. As such, it cannot be handled the way we have historically applied sovereignty. This concept, the origins of which can be traced back to the 1648 Treaty of Westphalia, allowed governments to draw rigid boundaries to separate their territories and establish their exclusive authority.

Several IGF sessions illustrated the multiple territorial criteria used to trigger the application of national laws upon online activities. They can be based on the location of users, data centers and Domain Name System operators, as well as the country of incorporation of service providers and cross-border platforms.

A patchwork of overlapping jurisdictions

Unfortunately, these jurisdictional criteria often overlap while national laws differ. As a result, conflicts proliferate regarding privacy, freedom of expression, security or intellectual property, as increasingly reported in the media. The development of such a patchwork of national legislations generates legal uncertainty for users, difficulties of enforcement for public authorities and challenges for global intermediaries.

Furthermore, because the Internet is a shared space and infrastructure, sovereign decisions in one country may impact citizens in other states, or even the network as a whole. Some states can actually benefit from an extra-territorial extension of their sovereignty due to the presence of key platforms or infrastructures on their own soil. The legal geography of cyberspace does not replicate the clean physical boundaries of national territories.

No sovereignty without responsibility

For the reasons mentioned above, Internet governance cannot be founded on the enforcement of an absolute Westphalian system with strict separation of sovereignties on an infrastructure that transcends it. Turning the Internet into a collection of national intranets would not only destroy the exceptional benefits it has brought so far. It would create more problems and conflicts than this move pretends to solve.

In our interconnected world, states must, on the contrary, assume responsibility for potential transboundary impacts of their national decisions. Far from representing a renunciation to sovereignty, it should be seen as the inescapable consequence of the principle of the equality of states, if it really means something. There is no legitimate exercise of sovereignty without this responsibility.

Managing commons

Yet, the true challenge today is how to collectively manage these new commons. And this requires new, issue-based cooperation frameworks allowing all stakeholders to exercise their joint responsibilities, more than purely intergovernmental discussions or treaties.

The innovative format of the Internet Governance Forum incontrovertibly shows the need but also the benefits of direct interaction among all actors to address delicate Internet policy issues, as required in the 2005 conclusions of the World Summit on the Information Society.

Let us hope states keep it in mind as they develop their national legislations and participate in discussions that may impact the most successful collaborative effort ever undertaken by humanity.

By Bertrand de la Chapelle, Director, Internet & Jurisdiction Project. See more about the project here.

Related topics: Internet Governance, Law, Policy & Regulation

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