The contradiction between state sovereignty and cyberspace is the fundamental “Internet governance” issue of our times. Four years ago, I published a scholarly manifesto “Against sovereignty in cyberspace”in the International Studies Review. It was a systematically reasoned explanation of why cyberspace is a global commons analogous to the high seas, and why attempts to subject it to territorial sovereignty are regressive and authoritarian. The Internet has developed many its own regulatory institutions, which are transnational in scope and more responsive to the business and civil society users of cyberspace than national governments or a collection of national governments ever could be.
This article was attacked in a book written by a Johannes Thumfart, with the interesting title, “The liberal internet in the postliberal era.“ Intrigued by the book title, I looked into it.
Alas, the book disappoints. Thumfart’s take on these critical issues is distorted by his attachment to the concept of state sovereignty. He has expressed support for the Chinese government’s digital sovereignty philosophy, if not specifically its practice. In this book, he devotes a significant number of words to attacking my critique of sovereignty in cyberspace. His attempt at a takedown, however, does more to reveal the weaknesses of the digital sovereignty case than it does damage to my argument. While I will get the last word here, I am giving Thumfart the kindest compliment a fellow academic can give, which is to acknowledge his book’s existence (since there are so many churned out that never quite get there), and to actually read most of it (which also rarely happens with these academic tomes).
Open Letter to Thumfart
Part 1: Empty non-definitions
We have a number of disagreements.
- on whether one can have an empirically valid, politically useful definition of sovereignty, one that helps to explain the way states interact in the real world, and whether that distinction is clear and consequential in international law and politics.
- on whether cyberspace’s techno-economic structure has any transformative effects on traditional governance institutions. You believe the Internet poses no new problems with the nation-state system; I think it does.
- on whether you have sufficient understanding of the technology and economics of the digital ecosystem to engage in an argument about whether application of territorial sovereignty to it would be good or bad; it’s clear to me that you don’t.
- I reject your contention that private actors are “governments” and underlying this false assertion is a very basic disagreement about the nature of the state
Overall, you want to rationalize or defend sovereignty in cyberspace, but you respond to a critique of the mismatch between the two by arguing against every factual criterion for defining sovereignty. The only point of those arguments is to allow you to wave your hands and say sovereignty is something that is “constructed.” Constructivism, you think, allows you to avoid, or deflect the normative debate about sovereignty. We can’t get excited about assertions of digital sovereignty because there really is no such thing, it’s all very vague and diffuse and relational.
Insofar as constructivism is a valid method of societal investigation, its adherents are obligated to investigate empirically how and why things are “constructed.” They cannot just say that things are “socially constructed” and stop there. For example, you try to portray sovereignty as mutual recognition among states. But “recognition” is an effect, not a cause. The US recognizes Russia or Iran as sovereign not because it approves of their rulers or their systems of government, but because they are perceiving reality, recognizing a fait accompli. Those states do in fact have a defined territory and exclusive control over the use of force in that territory, and/or it is in the other state’s interest to pretend that they do. Sovereignty is mutual recognition, yes, but you don’t seem to understand that the granting or refusal of recognition has real-world causes and consequences. States in the real world must either deal with, or fight against, other states. Mutual recognition of each other’s sovereignty, a cooperative game, is generally better for all than fighting, but sometimes cooperation breaks down.
Sovereignty has been important in the past because it is a form of collective action among states that institutionalizes the criteria, practices and benefits of mutual recognition. In today’s world, most states are not “struggling for recognition,” they already have it; those who have to struggle for it usually don’t get it.
When in your book you are forced to finally cough up a definition of sovereignty, it is not that different from mine, from Weber’s, or from standard IR theory: (p 32) “mutual recognition, the exclusion of external actors, the organization of political authority and control within the state.” To that familiar refrain you have added “and the ability to regulate global flows of information and ideas.” But this addition is wrong. States in the liberal order, thankfully, have very limited abilities to regulate global flows of information and ideas. Thanks to liberal ICT policies, much of that has been ceded to a transnational market and civil society. Liberals don’t want that to change, but as noted we seem to be moving to a less-liberal world. If that changes for the worse, Europeans’ popularization of digital sovereignty will share the blame.
The globalization of markets in the past 60 years accounts for nearly all of the economic progress in the post World War 2 world. Assertions of territorial sovereignty that extend into the spheres of information and communications technology trade threaten that progress. They encourage breakdowns into isolated islands of trade, communications and education. Thrusting “sovereignty” into the transnational virtual space created by the internet protocols would effectively destroy cyberspace as we know it. It would partition the non-geographic communities of cooperation, culture and commerce back into geographically bounded territories, with digitally enforced borders and national digital identities. It would heighten exclusivity of control over information, it would re-nationalize science and technology.
Part 2: Technological systems are constructed, but they are also real
The focal point of your attack is that in carefully laying out the reasons why cyberspace was a global commons, at some point I used the phrase “nature of cyberspace.” I did not leave that phrase hanging in the air, but carefully and precisely defined what I meant by it: virtual (software-defined), non-proprietary protocols, distributed control of networks, globally unique identifiers administered by nonstate actors. Your critique showed no understanding of those definitions.
Oh, look. On p. 39 you say, “Since the internet enabled horizontal global communication, it has been a constant challenge to enforce jurisdictional rules regarding privacy, free speech limitations, copyright, or obtaining e-evidence abroad.” So here you admit there is a structural clash between the technical system and territorial jurisdictions. Your contention that there is no “nature of cyberspace” falls flat based on your own arguments.
Suddenly you are forced to recognize that there is a “nature of cyberspace”. Of course, such recognition is unavoidable if you are to do any serious analysis of the governance of technological systems. Hard to understand, then, why you are suddenly so vicious about basing your criticism of my anti-sovereignty argument on some caricature of “the nature of cyberspace.” It is disappointing that you refuse to engage with the actual argument about the construction of cyberspace, but attack a single phrase. Do you understand the bit about software, virtuality and non-territoriality? Do you understand the implications of open source, nonproprietary protocols with no representation of states or territory? It seems your straw man about “nature of cyberspace” overlooks these factual arguments.
Part 3: Get yourself a theory of the State
You are correct that the debate over sovereignty (whether digital or otherwise) “refers primarily to states and only indirectly to citizens.” You are correct that sovereignty is relational, and is primarily defined by complex interactions among states. But, floating in the cloud of constructivism, you refuse to recognize what those interactions are about! You reject the definition of the state as an exclusivity over political power in a territory, yet without this you cannot explain why mutual recognition among states is significant, why it happens, why it doesn’t happen sometimes, and why sovereign boundaries are constantly shifting along with relative power relations.
You say (p 31) ”a sovereign power is a political entity that is recognized as sovereign by other sovereign powers.” But what leads to this recognition or its absence? Why does this recognition occur? To a liberal institutionalist, the answer is pretty straightforward: such recognition defines the boundaries of one state’s territory vis a vis another’s. In many cases, it reflects a mutually beneficial equilibrium in which two players avoid conflict by recognizing each other’s effective control, i.e. political exclusivity, in a territory.
You make a very weak argument against the Weberian definition of the state (a monopoly on the legitimate use of force in a territory): “How clear-cut and absolute does Mueller imagine a state’s monopoly on the use of violence in a territory to be?” You then cite a claim that no such thing has ever existed. But you had to omit a critical word from your description of monopoly: legitimacy. Are you saying that there is no difference between a state, a robbery on a side street, a civil disturbance, or a secessionist movement? If there is such a difference, what is it? Some would say a monopoly on the legitimate use of force. Your argument avoids this issue. Even without this oversight, the argument seems desperate. If a monopoly on force is not critical to the definition of the state, then what does define a state? Are you saying that states don’t exist? If they do, how do you recognize them?
On p. 31 you say “a sovereign power is recognized as sovereign by the citizens on its territory” Doesn’t that mean that the state’s ability to exercise coercive power is recognized as legitimate, and that no other entity is deemed legitimate; i.e., it is the exclusive holder of this power. The more you write, the more you back into the Weberian definition of the state. Welcome home.
Part 4: Who’s dodging what normative debates?
You say my argument “attempts to sideline the normative debate about the legitimacy of digital sovereignty by pointing to empirical problems with its implementation.” This is utter nonsense. My article treats the digital sovereignty debate as a normative debate entirely. I am very much a part of that debate and you should know that. That’s what the IGP website you are presumably visiting is all about. I say quite explicitly in the paper that it is possible to technically implement sovereignty in cyberspace, I just say that such fragmentation would be an economic and technical disaster for the planet. It would make nations into digital islands, foregoing free trade and free communications among the world’s population. (And frankly, that is what most of the leading advocates of a renewed sovereignty want, whether it’s Donald Trump, Victor Orbasz, or a Thumfart.)
You say that I try “to sell liberalism as a “natural” and technological necessity,” again, you are not paying attention, or you are being dishonest. Liberalism is neither natural nor a necessity, it is a normative position on social order that prizes individual freedom and free trade, which is precisely why I write books and articles in favor of it and critique the sovereigntist turn. It is thoroughly dishonest to characterize my argument as some kind of cyber-utopian from the mid 1990s who thinks technology determines our political institutions – I am an institutionalist, the shoe doesn’t fit. And if it were natural and inevitable why would I be publishing an article “Against Sovereignty in Cyberspace”? Why couldn’t I just sit back and let nature take its course?
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My paper “Against Sovereignty” thoroughly discusses the changing nature of sovereignty over time. It explicitly discusses Krasner and agrees with him that in an anarchic world (a realist concept that hasn’t found its way into your vocabulary) sovereignty is a loose institution and sovereignty claims are used or avoided instrumentally. Which might lead someone more critical of states and more attuned to liberal norms to ask: WHY are states suddenly claiming digital sovereignty? Why now? What do they want? Your constructivist hand-waving about how complex and undefined and relational everything is basically avoids the key question. It is you who sidesteps the normative debate.
