Cyberspace fragmentation: an internet governance debate beyond infrastructure

Since the Peace of Westphalia in 1648 our international system is based upon the principle of territorial sovereignty. Today, however, cross-border online spaces made possible by the internet span across a system of fragmented national jurisdictions. Tension rises since we do not have the legal equivalent to the technical interoperability that enables the global internet. A choice has to be made. Either we progressively re-align cyberspace along the territorial boundaries of national jurisdictions, or we collectively develop an interoperability framework that allows the coexistence of diverse national laws and norms in these shared cross-border online spaces.

Hundreds of stakeholders from around the world will gather in Sao Paulo in April 2014 to discuss the future of internet governance at NETmundial. Preserving the unified and unfragmented ecology of the internet will be a core topic. This requires to address both the risk of internet fragmentation and the risk of cyberspace fragmentation in the roadmap ahead.

At the same time as existing institutions for the governance of the technical internet infrastructure are strengthened and further improved, we need new, innovative mechanisms to promote the peaceful coexistence of users in transnational cyberspaces and guarantee due process, accountability and transparency.

Collaboration is needed to maintain the right to “seek, receive and impart information and ideas through any media and regardless of frontiers” in the 21st century, as stipulated by the Universal Declaration of Human Rights, for the next generations of digital natives to come.

Twenty years after the spread of the commercial internet, it is now technically possible to construct borders around the internet, to define national cyberspaces for citizens of a given country. The Westphalian conception of sovereignty can be reaffirmed in cyberspace. The growing debate in national administrations about data sovereignty is just one symptom of this trend. The internet and the online spaces constructed on top of it are human-made – there is no natural law that would prohibit the repartitioning of transnational online spaces along the physical boundaries around which our international governance systems are organised.

The debate about fragmentation is complex: it is technical, political and legal. To avoid oversimplifications, it is important to highlight a crucial distinction. The ‘internet’ is the neutral technical infrastructure on top of which we have built layers such as the World Wide Web - to easily find what we are looking for - and the actual applications such as cloud-based services or websites, which form the cyberspaces that we access and in which we interact.

It is unlikely that the internet as a technical network will fragment. Existing global institutions or processes such as ICANN, the RIRs, IETF or W3C ensure the resilience of what the 2013 Montevideo Statement called “globally coherent Internet operations”. Even if top-level domains in non-Latin scripts spread widely, the system will still be based upon the fundamental principle of interoperability – the secret behind the internet’s global spread. More geographic and linguistic diversity will not jeopardise this technical interoperability.

It is the application layer of the internet, the transnational cyberspaces, which risks being carved up. States naturally need to perform their public responsibility to protect their citizens – offline, as well as online. But how can states enforce national jurisdiction if most online interactions involve multiple jurisdictions at once - based upon the location of the users, internet platforms, registrars, registries or servers? The existing mechanisms for international legal cooperation that exist between a certain number of states are often limited in scope and handle internet-related matters with difficulty.

Faced with this situation, an obvious strategy for states is to resort to their available Westphalian toolkits to reaffirm sovereignty in cyberspace. New national laws can be passed to oblige every company that operates online spaces to have local offices in the territories they are accessed from, store data on local servers or register under the national country code top-level domain (such as .fr for France or .nz for New Zealand). First ideas such as a national cloud, a European Schengen internet, local offices or local data storage floated already around the world.

Such solutions have an immediate short-term effect. Governments feel they regain national control over their ‘national cyberspaces’. What is missing is however a global debate on unintended consequences, on the wider impact of the proliferation of a patchwork of new national online sovereignty laws. Will we continue to have global social networks, platforms and cloud services? Will we need to have online visas for cybertravel in the future? What happens if countries enforce national jurisdiction over global internet services that happen to be incorporated on their national territories?

And what would be the long-term costs associated with a fragmentation of cyberspace - the social, cultural, political and economic impacts upon mankind, if we fall back into managing the national, rather than managing shared cross-border online spaces in a collaborative way?

If we agree that we need to preserve the features that have made the internet so successful, we need to diffuse the tension that leads states to evoke reinstalling national borders around the cyberspaces their citizen use. All stakeholder groups – international organisations, states, business, civil society, academia and the technical community alike - need to work together to elaborate the required procedural norms and interoperability mechanisms. To handle the coexistence of diverse laws and norms in cyberspace, such a framework must be as transnational and innovative as the internet itself.