Political Boundaries in Cyberspace
As Information and Communication Technologies (ICTs) continue to suffuse through every aspect of human life in the twenty-first century, they have skewed the perceptions of citizens, and the outlook of jurisdictions worldwide. As societies continue to reshape themselves into digital economies, there has been a surge in the dependence of individuals, organizations, and governments on digital infrastructure. Whilst cyberspace has profoundly altered human life, and presented significant new opportunities, it has also blurred the lines between digital and ‘tangible’ citizenships of individuals, consequently leading to states legislating on issues pertaining to cyberspace law, such as, but not limited to, intellectual property, cybercrimes, fraud, identity theft, e-commerce, freedom of expression, and privacy concerns.
The ubiquitous and decentralized nature of the internet has led to issues in areas of policing free speech, hate speech, and privacy intrusions for governments, leaving governments and judiciaries to carry out a balancing act among citizens’ digital rights. The aforementioned factors dictating the practice of cyberspace law have had a profound effect on enforcing political boundaries on the users of ICTs. Government cyberspace regulators have moved to establish safeguards to curtail cybercrime. This has given flexibility to states to exercise confidentiality over their affairs, while also preserving a great deal of freedom to information, a provision that ought to be provided to citizens of democracies and high-ranking countries on the Human Development Index (HDI).
The following article will seek to elucidate the complicated relationship that exists between nations, their citizens, and non-state actors (particularly, commercial parties), and the legal and political issues pertaining to this tri-partite association with regards to cyberspace.
State Sovereignty & Confidentiality in Cyberspace
Although sovereignty over cyberspace may seem to be a vague concept and given the open nature of cyberspace today, states still exercise a great deal of privacy and caution while operating with large amounts of confidential data over the internet due to the omnipresent threats from non-state actors (hacktivist groups) and other nations. This has often come into clash with the states’ citizens own rights and desire for transparency with regards to government dealings. The aforementioned provision has been realized in many forms across democracies. Notable examples of the same include the Freedom of Information Act (FOIA) 1967 within the United States of America (USA), which entails the partial disclosure of information (upon request) from agencies of the USA Federal Government, unless the said request contradicts interests such as law enforcement, personal privacy, and/or national security, and the Right to Information Act (RTI) 2005, which empowers any citizen of India to request information from a ‘public authority’.
Such pieces of legislation were conceived at a time when ICTs were not commonplace and/or accessible to a large proportion of the population.
A landmark case about the FOIA 1967 was the case of Department of Justice v. Reporters Committee for Freedom of the Press [489 U.S. 749.1988], which was ruled at the US Supreme Court. At the Court of First Instance, it pertained to a request from a group of journalists, who sought that the Federal Bureau of Investigation (FBI) and Department of Justice (DOJ) (agencies of Federal Government) release criminal records of four brothers who had entered into dealings concerning defense contracts with a corrupt Congressman. The DOJ withheld the criminal records of three of the brothers, and only released the records of one, who was deceased at the time. At the Supreme Court, it was held unanimously by the judges that under Exemption 7 (c) of the FOIA 1967, which states that the information held by the federal agencies did not reveal anything ‘how’ the government operates, the agencies in question were not obliged to disclose that information. Thus, this case set a precedent, that in the event a reporter requests information under the FOIA 1967 that does not seek to reveal any information concerning governmental activities, it does not constitute ‘public interest’, and rather is thus only pertaining to ‘private matters’. This is an excellent case which throws light on the balancing exercise needed between public interest, the confidentiality of the state's dealings, and privacy intrusion.
However, from a legal perspective, it is important to note that such legislation will need to evolve to encompass cyberspace. Taking an example from the FOIA 1967, it was reported that one in six individuals is unable to access their desired public information via the act. The quality of the search results and requests under this act have also been put into question, with questions being raised by inquirers about the integrity of the results being provided. The challenges to extend this legislation onto digital infrastructure are thus quite clear. Governments are tasked with keeping up with rapid advancements in technology, whilst simultaneously balancing the competing interests of privacy and freedom.
Commercial Parties and Political Influence in Cyberspace
A great deal of influence today is exercised by commercial parties in cyberspace. Recently, a lawsuit was filed against Google at the US District Court in California by 2020 US Presidential hopeful Tulsi Gabbard, who claims that her Google Ads account was temporarily suspended intentionally, at a time right after the Democratic Party’s debate in June 2019, particularly at a time when her campaign experienced a spike in search interest online. The claimant in the suit Tulsi Now, Inc. v. Google, LLC [Case number 2:19-cv-06444, California] filed complaints about, inter alia, violation of the First Amendment to the Constitution of the USA, and is claiming damages of USD 50 million.
Nonetheless, a more worrying issue is that of competition law and privacy intrusions on the part of commercial parties over ICTs. In July 2019, the US DOJ launched a sweeping antitrust investigation into the big tech companies, off the back of years of claims of monopolization, and compromising users' privacy on cyberspace. The claims pertaining to the monopolization of the market have reached such an extent, that the US Federal Trade Commission (FTC) has dabbled with the notion of splitting up the big tech companies.
From a legal perspective, the collection action lawsuit of Richard Lloyd v Google, LLC [(2019) EWCA Civ 1599. Case No: HQ17M01913] at the England and Wales High Court (EWHC) in the year 2018 reiterated the scope of technology companies. The claimant, Richard Lloyd, applied for a request to serve proceedings to Google LLC (based in California, USA) from England, which was obviously out of the jurisdiction of the respondent. The claimant had asserted that section 4(4) of the Data Protection Act 1998 (DPA 1998) (an act of Parliament in the United Kingdom) (supplanted by the Data Protection Act 2018, which complements the EU’s landmark General Data Protection Regulation (GDPR) 2018) was being violated by Google LLC by means of sale of browser-generated information of iPhone users to advertisement organizations. Such information was thought to have included sensitive data, such as, but not limited to, the user’s political views, geographical location, and financial condition. Being a collective action suit, the claimant had also sought to represent other individuals who were affected by this in England & Wales.
The application was refused by the presiding judge on the basis of the outcome of three legal tests:
- the question of England being the appropriable jurisdiction for the claim, which was ruled to be apt, but the judge saw no reason as to why the claims were to be brought to the USA;
- the question of the jurisdictional gateway that was sought for recourse, and the claimant had relied upon the notion in tort that the damage sustained, and the acts committed to creating the damage were exclusively within the same jurisdiction, to which the judge had stated the court could see no “damage” to the right of autonomy to the claimant through the non-consensual use of personal data by Google LLC; and
- the question of the feasibility of the prospect of success the collective class, to which the court had ruled that the consequences of the actions of respondent were not uniform across the entire class, and that even if the class were hypothetically defined, several insurmountable practical challenges would arise from the same.
The results from the tests above rendered the case shut, thus establishing the supremacy of cyberspace operators in late 2018, before their unforeseen antitrust probe in 2019. This case truly highlights the hollow nature of privacy safeguards against exploitation from cyberspace operators in a leading jurisdiction of the world, prior to the enactment of GDPR in 2018. However, still in many jurisdictions today, it is the commercial parties who dictate the political narrative, both on a macro as well as the micro scale.
Partisan Politics by States in Cyberspace
Perhaps the most recurrent acts of partisan politics on cyberspace are carried out by states (instead of the heads of states) themselves. Passive means of doing so include creating obstacles to access to cyberspace and ICT infrastructure, and/or placing restrictions on certain types of content that may be accessed over the internet. Active means, however, entail the direct violations of the rights of users and include acts of surveillance, invasion of privacy, the carrying out of consequential repercussions for online activities by means such as, but not limited, to censorship, imprisonment, and harassment.
In conclusion, as cyberspace continues to reshape the boundaries of political activity across the world, it is the legal sphere which serves as a deterrent to ensure the mutual exclusivity of partisan politics and civil liberty within cyberspace.