Digital Sovereignty

In the 1990s, it became quite common to hear arguments about the ‘decline of the state’, and the accompanying loss (or diffusion) of sovereignty. Evidence for such arguments included the end of the Cold War, globalization, the growth of corporate power, and the internet. Today, many people still see the internet as an ungoverned, lawless place that no government can control, but academics have been arguing against this notion long before the Snowden disclosures. Today, the idea that the internet is immune to state sovereignty is presented as a ‘cyber-utopian’ fantasy that can be dispelled with countless examples of government power from around the world.

In Canada, IXmaps was born of pre-Snowden revelations of mass internet surveillance by the NSA on US soil. It has long been clear that the NSA has secretly exercised sovereignty over internet traffic which passes through the US, but might originate or terminate elsewhere (including Canada). One response has been to call for Canada’s federal government to promote “national network sovereignty”, which would “repatriate” the data of Canadians by keeping it within the nation’s borders. The Snowden disclosures have certainly strengthened desires to keep data contained by territory, but the idea of a sovereign Canadian network seems about as likely as a national broadband utility or Canada leaving the Five Eyes.

The Chinese state, which provided some of the earliest examples of just how sovereignty could be exercised over the internet through its “Great Firewall”, is now strengthening calls for “cyber sovereignty”. By this, President Xi Jinping means the “right” of each nation to govern its own patch of the internet, free from interference by other states.

Meanwhile, in the US and UK (and to a lesser extent, Canada), governments, police, and security services have complained about their inability to access communications — because of encryption. While the word ‘sovereignty’ is rarely used, the argument is that law and order in today’s society extends only as far as the state’s ability to access data. If a court orders that data should be accessible to police, but encryption makes this technically impossible, then the law becomes powerless in the digital age. Just as state sovereignty has traditionally meant a domestic monopoly over violence, sovereignty today has been equated with a monopoly over secrets. Only the state has the ultimate right to secrecy. The rest of us can maintain secrets, but only if government has a means to demand access.

Companies like Apple and Google, (whom some have called “internet sovereigns”) have pushed back, and in the US and UK their arguments have either been quite persuasive, or government arguments for backdoor access have not been persuasive enough. The limits of state sovereignty against encryption, originally tested by the controversy over the Clipper Chip in the 1990s, have largely held firm. While according to Mitchell Dean, the liberal order presupposes state sovereignty (and not the sovereign rights of service providers), sovereignty remains “an aspiration, a more or less accomplished fact” (p. 140). In regards to the internet and encryption, state sovereignty has been accomplished to a much more limited degree than many governments would like. But this has less to do with the incompatibility of state sovereignty and the internet, than with the fact that sovereignty is “an always open question, a matter of historical, political, linguistic and symbolic construction and contestation” (p. 141).

The current period seems to be a critical time for such contests, and as with the Clipper Chip, the outcome won’t be determined by the question of whether state sovereignty is fundamentally compatible or incompatible with a given technology.