Recent attempts to challenge the decentralized Internet architecture by proposing corporate alternatives and increased state control have shed light on the tensions between digital sovereignty and globally-exported values embedded in the infrastructure. The potential fragmentation and polarisation of the Internet is not just a matter of governing the technical infrastructure. It is also a reshaping of the architecture of surveillance and power in the digital environment, giving impetus to a new role for constitutional law in the information society.
The Internet, as we know it today, will change face in the next decade. The rampant evolution of new technologies, powered by 5G connectivity and AI technologies, will likely alter the current status of the Internet infrastructure in unprecedented ways, uncovering regulatory gaps and requiring new approaches to protect digital rights. Technology advancement remains the key driver of governance transformation in the last decades (Radu, 2019), but just how far does it push us towards a new global (and digital) constitutionalism paradigm?
Infrastructural Power: In Whose Hands?
The Internet infrastructure has long been considered a neutral foundation, on which the political struggles for governing other socio-economic issues could take place independent of standards and protocols of interoperability. Historically, developing and using a communication infrastructure was a state prerogative, showing its capacity to exert control over a territory (Hill, 2014). From building the road system of the Roman Empire to connecting the early telegraph networks, exercising ‘infrastructural power’ (Mann, 1984) has been a key condition for establishing and affirming sovereignty over a given territory. The communication technologies of the twentieth century (radio, telephone, etc.) brought new challenges to both sovereignty and territoriality, due to their transnational nature and their (almost exclusive) private ownership. The State itself was no longer building and managing the networks. Instead, it entered agreements with private providers as it saw necessary, whether they were based in its national jurisdiction or not.
The Internet represented a step-change in the deployment of communication technology, presenting an open technical architecture which allowed separately designed networks to interconnect and deliver services to their users. At the end of the last century, proponents of a libertarian point of view (Barlow, 1996; Johnson and Post, 1996) looked at the Internet as a space without the influence of States’ authority and, therefore, without international law. This approach was soon counterbalanced by scholars asserting the possibility to regulate the Internet (Reidenberg, 1997; Lessig, 1997) with the result that the international regulation of the Internet is feasible and legitimate (Goldsmith, 1998), as also confirmed in the following years (Segura-Serrano, 2006).
What is special about the private infrastructure governance that allowed the Internet to evolve into a global, vital network is the creation and upgrade of protocols and standards in a voluntary manner (although not necessarily in a disinterested fashion). In venues such as the Internet Engineering Task Force (IETF) or the Internet Corporation for Assigned Names and Numbers (ICANN), the collaborative work of network engineers (in a personal capacity or as representatives of particular constituencies) meant that the basic standards and protocols underpinning the global functioning of the Internet could be discussed openly and agreed by a community in which governmental presence has always been minimal. This is starting to change as most draft proposals come from experts with a strong corporate affiliation and participation of diverse voices is low. In the IETF, the standard-making process is currently led by US and Chinese engineers (Winzen & Weyrauch, 2019).
The tradition of voluntary contributions is closely linked to the fact that the Internet infrastructure of the early decades (1970s to 1990s) developed in the absence of State constraints. ‘Information wars’ between promoters of various technologies that could enable decentralised transmission of data packets took place in the mid-1980s, notably opposing established telephone oligopolies in favour of virtual circuits to scientists from the Advanced Research Projects Agency Network (ARPANET) promoting a decentralized network solution based on a new Transmission Control Protocol/Internet Protocol (TCP/IP). The latter became the dominant means of internetworking, giving us the nowadays Internet. It was originally supported by US military funding and was later globalized by US companies, which continue to maintain a leading market position. When the basic Internet infrastructure created under ARPA was privatised in the 1990s, it expanded globally as private fiber optic cables supporting the delivery of private services. Governments kept their communication online using this private infrastructure and slowly seized opportunity for defining rules and safeguards for the protection of critical elements. In some cases, the core elements of the so-called ‘critical infrastructure’ might be state-owned, but in the majority of cases they remain privately owned, enjoying a special protection status.
Two emerging trends are about to change the way in which we understand infrastructural power in global communications. First, powerful content providers and technology platforms (Google, Apple, Facebook, Amazon, Microsoft, known as GAFAM) have consolidated their position in the market by building their own architecture and creating the technical means to operate in a self-sufficient manner (Moore & Tambini, 2018). Submarine cables are a case in point here. The shares of the GAFAM in cable building continue to grow exponentially (Miller, 2019) from year to year. In 2018, Google owned 8.5 per cent of the world’s undersea cables (BroadbandNow, 2018); by 2019, it was the sole owner of three submarine cables and part owner of ten more. Facebook also had part ownership in nine cables and was a major capacity buyer for a tenth, while Microsoft and Amazon were contributing to building four, respectively three cables. As the quality of service increases with faster connectivity – critical for next generation AI services, so does the power of a handful of private actors. Their ability to control communications ranges from the management of data traffic to the screening of content. The resulting fragmentation in the architecture of the Internet along private interest lines is a real danger for the global Internet (Huston, 2016), as it triggers a growing service delivery specialization and a new set of private rules imposed unilaterally, without public oversight. Under these circumstances, standard-making itself risks becoming an exclusive corporate privilege.
Second, the rise in authoritarian splinters and the increased control of the Internet within national borders are of particular concern. In countries where extensive forms of surveillance and control over information are diffused, like the Arab States or China, the Internet has repeatedly been subject to public restrictions leading to the blocking of certain online services and/or the strict monitoring of data (Zittrain et al., 2017; Warf, 2011; Deibert et al. 2008). The case of Internet shutdowns is an extreme example of states, mostly authoritarian regimes, relying on network architecture to express their sovereignty over the digital environment (De Gregorio & Stremlau, 2020).
Information control via new global technologies of unprecedented power – whether by corporations or by governments – represents the new normative battleground leading to polarisation in Internet governance. The decentralised decision-making for internet standards and protocols that has prevailed so far via organisations such as the IETF or ICANN is challenged by profit-driven, exclusively private rule-making implemented through obscure processes by market leading companies (Radu & Hausding, 2020). It is also challenged by the new centralised model proposed by the Chinese (with the backing of Saudi Arabia, Iran, Russia) in a multilateral, state-dominated venue such as the International Telecommunications Union. As infrastructure takes centre stage in political struggles, attempts to fragment the Internet architecture reveal a widening gap between ‘bottom-up’ and ‘top-down’ approaches to governing the network.
Internet Governance and Digital Sovereignty
The case of China constitutes a paradigmatic example of how authoritarian States express their sovereign powers over the Internet by intervening in the defining features of its network’s architecture (Zittrain & Edelman, 2003), at first domestically and later on internationally. In a move to upgrade technical standards, China and its tech giant Huawei have recently advanced a proposal to the International Telecommunications Union for a technical redesign of the TCP/IP protocol stack, allowing centralised control over authentication and Internet communications through instruments like “shutoff protocols”. While there is confusion over the scope of the Chinese White Paper entitled Network 2030 – A Blueprint of Technologies, Applications and Market Drivers towards the Year 2030 and Beyond (Hogewoning 2020; Mueller 2020), the immediate objective is to set-up a new research group to deal with the limitations of current IP standards for anticipated future uses. This proposal has further exacerbated fears of moving away from the decentralised decision-making for Internet standards, as the Chinese geopolitical influence over key technical infrastructures is constantly growing. In the case of 5G, building the next generation wireless networks stirred numerous national controversies about the involvement of Chinese equipment manufacturers, leading to blocking or restricting the share of the Chinese giant Huawei in various markets around the world.
Behind technical concerns, however, hides an interest in reshaping Internet governance as a space for extending (digital) sovereignty. This is already underway to a certain extent, as countries like China, Iran or Russia (BBC 2019) have already introduced strict national delimitations and controls to separate from the global communication network. Significant scholarly and media attention has been given to the deployment of Western software for repressing liberties in authoritarian countries (Human Rights Watch 2014; Deibert 2015, 2016), but the global expert of standards and protocols developed in/by non-free countries remains an understudied and much needed critical perspective for understanding the emergence of new poles of digital power.
Within this framework, censorship measures have spread particularly in States who are not bound by constitutional limits. In other words, authoritarian regimes have tended to regulate the internet and digital technologies to bring them in line with their domestic restrictions. In such cases, internet censorship is merely a political decision to protect a general national interest prevailing over other fundamental rights; infrastructural restrictions can easily be deployed for its exercise. Au contraire, constitutional states need to consider the potential impact of regulatory burdens on fundamental rights and other constitutional interests when dealing with the network’s infrastructure.
Together with the traditional form of (digital) sovereignty exercised by state actors, the private dominance of digital infrastructure is another source of power in the information society (De Gregorio, 2019). At the end of last century, the hurricane of technological developments brought about by the Internet has led the overwhelming majority of constitutional states to adopt a liberal approach with respect to regulation. To a large extent, democratic States have chosen to rely on online intermediaries to ensure the enforcement of public policies online as opposed to direct forms of intervention. This was pointed out more than fifteen years ago by scholars such as Birnhack & Elkin-Koren (2003) and Reidenberg (2004), who clarified that States can ensure the enforcement of public policies online by regulating network intermediaries, network engineering and technological instruments.
The rapid expansion of new technologies, combined with the failure of public actors to promptly address digital challenges, has left important governance gaps, slowly filled by new private powers mirroring the exercise of (functional) sovereignty (Pasquale, 2017). Looking at information platforms from an EU constitutional standpoint, such entities are private actors. As a result, they can rely on their freedom to conduct business as recognised by the Charter of Fundamental Rights of the European Union together with the EU fundamental freedoms, especially, the freedom to provide services as set out in the Treaties. From a US constitutional perspective, platforms rely on a different constitutional basis to perform their business, in particular their freedom of speech as recognised by the First Amendment (Balkin, 2018). In both cases, platforms enjoy a ‘constitutional safe area’ whose boundaries can be restricted only by the prominence of other fundamental rights.
Tech giants enjoy a broad margin of discretion in deciding how to implement their services and their public policy functions. Platforms are free to define and interpret users’ fundamental rights according to their legal, economic and ethical framework due to the fact that there are no laws or regulations currently in place to prevent them from doing so. By virtue of the algorithmic advances architecture, online platforms can perform autonomous quasi-public functions in a split second, without relying on the oversight of a public authority. Setting the rules for enforcing and balancing users’ fundamental rights by using automated decision-making processes moves us further away from constitutional safeguards. For instance, the decision of social media platforms to remove and consequently delete vast amounts of content, including political speech, is a clear interference with the users’ right to freedom of expression on a global scale. At the same time, this content moderation activity could also preserve other fundamental rights (e.g. right to privacy) and protect users from harmful content online.
To some extent, this privately driven activity mirrors the exercise of judicial balancing and public enforcement carried out by public authorities. Nonetheless, this process does not embed any public safeguard to avoid that profit maximization subjects fundamental rights to market logics. Therefore, alongside the statal expression of digital sovereignty, the ability of tech giants to govern infrastructures and digital spaces following their own rules constitutes another form of power that is in urgent need of checks and balances.
Internet Fragmentation and Global Constitutionalism
The consolidation of infrastructural power and the creation of splinter Internets governed in autonomous ways would produce serious consequences on the offline world. Indeed, the Internet is more than a technical architecture. It offers a social layer where individuals express their personal identity, businesses maximise their profits and governments perform their public tasks. In other words, the Internet is more than wires and data centres, it forms the basis for a social layer connecting humans, advancing relationships and embedding social values. It is therefore not surprising that Internet governance also means dealing with constitutional values on a global scale. Seen for a long time as a ‘democratising’ platform built on Western ideals, the Internet has not been a neutral environment and that became self-evident in the last decade. The Arab Spring, the Cambridge Analytica scandal and online hate speech leading to genocide in Myanmar are just some of the recent instances showing how global challenges to democracy and human rights have moved online.
A fil rouge connects these examples. The power of private actors, mainly tech giants, to determine the protection of human rights and shape democratic values on a global scale is mediated via the network’s architecture. Features such as end-to-end communication has allowed new businesses to exploit the opportunities deriving from the use of a low-cost global communication technology for delivering services without physical burdens, regardless of their location. This evolution calls into question the role of online platforms, moving the debate from a private to a public law perspective, more specifically to a global and digital constitutional approach. Inter alia, modern constitutionalism aims to, on the one hand, protect fundamental rights, and, on the other hand, limit the emergence of powers outside constitutional control. A new wave of (digital) constitutionalism is rising as a shield against the discretionary exercise of power by online platforms in the digital environment (De Gregorio, 2020).
This framework shows how Internet governance and global constitutionalism are intimately intertwined, as also shown by the debate on a global constitution for the Internet (Fischer-Lescano, 2016). The predominant role of decentralised and unaccountable entities exercising powers mirroring States’ authority would look like a legitimate ground for State actors to expand their authority online. For authoritarian regimes, the challenges raised by private powers would appear as a legitimate ground to propose a restriction of private sector’s freedoms. This would lead to increased surveillances and control. In this light, attempts by State actors to regain authority by impacting the architecture of the Internet through fragmentation represent powerful ways to regulate the digital environment. Nonetheless, while authoritarian countries might benefit from extending their powers online and blocking any expression of legal pluralism from the private sector, democratic governments face a major impasse: should they accelerate the move towards mass-surveillance and technical control or entrust the private sector to safeguard individual liberties and freedom using regulatory incentives?
An important consequence of Internet fragmentation is the gradual blurring of lines between traditional categories, precisely between the public and private sector. In authoritarian countries, where such a distinction tends to be weak, this challenge leads to a hybridisation of the relationship between governments and businesses, resulting in their own model of infrastructural (public) governance. At the same time, in democratic countries, the public/private divide, as an important safeguard for freedom and democracy (Goldmann, 2016) could be undermined with an growing involvement of the public sector justified by security and norms-driven ethos in a twofold manner: 1) to protect the democratic side of the internet from an authoritarian model; 2) to preserve the empowerment potential of the internet by limiting the power of the private sector. This framework could lead to troubling consequences for democratic values on a global scale. Fragmenting and centralising the Internet in the name of public enforcement would constitute a dangerous trend for the protection of fundamental rights and the rule of law.
A shift in the governance of the Internet towards integrating control-prone standards also entails a new paradigm for the social layer, where individuals exercise their rights and freedoms in various political regimes. In the past, Saudi Arabia, Iran and Russia have already shown support for Chinese ideas and the new IP proposal for centralised enforcement would fit with this trend. Before these two models, the question is: will Europe and the US continue to provide a credible democratic alternative embedded in digital technologies? This question touches on the role of constitutional law in the information society and its connection with Internet governance.
We have seen how democratic States have empowered the private sector without directly extending their powers to the digital environment. Therefore, the collaboration between public and private actors will become crucial to ensure that the model of Internet fragmentation does not become an interesting solution to deal with private powers online. Therefore, the challenge for constitutional law is not only to avoid public interferences online but ensures that the public/private cooperation is characterised by constitutional values underpinning fundamental rights and democracy. This approach would result from co-regulating efforts towards transparency and accountability where both public and private actors work together to ensure that the Internet maintains its nature of platforms to foster democratic values.
A New Digital Paradigm for Global Constitutionalism?
In the last twenty years, global trends have underlined different patterns of convergence, usually named “globalization” where the State-centric model has started to lose its power (Ip, 2010). The decay of national sovereignty and territorial borders is represented by “a world in which jurisdictional borders collapse, and in which goods, services, people and information ‘flow across seamless national borders’” (Hirschl & Shachar, 2019, pp. 1-2). It is no by chance whether scholars have started to refer to the rise of “Global law” (Ziccardi-Capaldo, 2008; Prins et al. 2017) to define a meta-legal system where different organisations and entities produce and shape norms with extraterritorial implications. The evolution of different systems leads to the emergence of different institutions which operate according to their internal rationality. As a result, the unitary State and its law is slowly replaced by the fragmentation of new institutions expressing their principles and values beyond traditional territorial borders. The Internet is a paradigmatic example of globalisation, giving rise to new (sometimes hybrid) entities operating on a global scale.
Within this framework, attempts to replace the unitary, decentralised Internet with splinters would break away with the model on which the Internet is currently based. Beyond technical considerations, fragmenting the Internet would have real implications for the governance of many sectors which rely on this global network. Standards and protocols developed in/by authoritarian regimes bring forward concerns that the use of new technologies for control and surveillance would reshape the digital space and ultimately make the protection of fundamental rights and rule of law via constitutional tools obsolete. This is why global constitutionalism matters when we address global phenomena (Wiener et al. 2012), requiring a complex governance like the Internet. The fragmentation of the Internet could undermine the protection of values encapsulated through a multilevel protection of rights coming from international, supranational and national constitutional law.
The role of constitutional law thus becomes apparent. In authoritarian regimes, where constitutional safeguards are regularly under pressure, fragmenting the Internet can be seen as an opportunity to centralise power and prioritize national interests. In democratic states, however, the need to respect fundamental rights and economic freedoms could constitute a shield for the private sector, which, under the constitutional guidance (not control) of public actors, could protect the unity of the Internet and promote pluralism.
As we move to govern digitally sovereign spaces at the crossroads between democracy and authoritarianism, the resulting fragmentation between paradigms across the world opens up a new research agenda. The centralisation or fragmentation in the governance of multiple Internets can affect the principles and values of constitutionalism and ultimately determine whether democratic states can continue to protect fundamental rights and democratic values on a global scale.
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