Who governs the digital ?

Dr. Pierre GUEYDIER, Director of Studies - OPTIC

Dr. Adrian PABST, Dean of the Faculty of Political Science - Kent University

What powers and authorities govern digital technologies? Is digitalisation transforming contemporary systems of governance, including the management of "property" rights around the world? cybernetics and its relation to the Common Good? Digital governance raises fundamental questions about representation: which interests (particular or general) and which ideas or ideologies are represented in the political sphere and its institutions? In turn, representation affects the design of laws and regulatory policies. In short, governance is not limited to standards, regulations and infrastructures but extends to issues of power, society and justice.

Cybernetics and its relation to the Common Good? Digital governance raises fundamental questions about representation: which interests (particular or general) and which ideas or ideologies are represented in the political sphere and its institutions? In turn, representation affects the design of laws and regulatory policies. In short, governance is not limited to standards, regulations and infrastructures, but also to the extends to issues of power, society and justice.

Back to the Estonian case

To try to better understand the operational principles at work in digital governance one case is obvious: Estonia. This country of one million three hundred thousand inhabitants has wished to build its post-Soviet identity and its soft power over the thunderous affirmation of a "100% digital"state.

In addition to an obvious argument of geopolitical singularisation linked to its geographical and historical situation, this laboratory can, after a few years of experience, constitute a useful case without, however, claiming to give a full account of the challenges of governance in the digital a geand its modalities.

The Estonian case is a unique mode in its own right of digital assimilation in the public sphere and politics alongside the other three main models:

- (1) China and its "dystopian and totalitarian"approach

- (2) Russia, which would militarise the data both to internal and external purposes;

- (3)Western democracies attempting to bring the digital revolution into line with liberal principles.

Naturally, we must try to go beyond an overly simplistic analysis to grasp the specificity of Estonia and its possible limitations. The key to the Estonian context is based on the notion of "mutual accountability".

The logic of "by design" transparency, embedded in the political discourse and technical infrastructure, is promoted to the rank of national value as balance of power software. No longer classically between the executive, the legislature and the judiciary, but as a in the sense of a reciprocal control of the State and of the citizens. The asymmetry in the relationship between citizens and State and political history do not, however, argue for a natural self-limitation of a power which is that it is. Indeed, building the confidence of all towards such schemes has a collective cost: the cost of the sacrifice of a large part of the concept of privacy, which is essential in democratic history.

Estonian digital transparency is based on and therefore implies a progressive desacralization of the private sphere, in contrast to what Benjamin Constant (1767-1830) had theorised as "liberté des Modernes". Here we must quote the liberal thinker who denounced the illusion of the effectiveness of limiting powers by increasing their number: "The authority that emanates from the general will is not legitimate by that alone [...]. Sovereignty exists only from one limited and relative way. At the point where the independence of individual existence, stops the jurisdiction of this sovereignty. If the company crosses in this line, she is as guilty of tyranny as she is of the despot whose only title is the exterminating sword. The legitimacy of authority depends on its purpose as well as from its source ".

The ambient fatalism that declares the fight against the capture of private data lost in advance inexorably pushes the previously "sacred" private life to the background towards a post-privacy era not carried forward only through political initiatives such as the Estonian but also by the clearly assumed agenda of the digital majors. Returning to Estonia, the historical and geographical peculiarity must also be taken into account to understand why Estonians develop a trust that may seem naive in their political and public institutions. By its recent history since the fall of the Soviet Union, the Estonian population believes in the power of transformation of its institutions, which benefit from a strong capital of sympathy, probably also linked to the size of the country, which creates a certain proximity mechanics of citizens, elected officials and the administration. The relation to the concept of totalitarianism, however in the environment of this part of theEurope, has absolutely not the same collective translation as Germany, for example, or other countries for whom it is inconceivable to grant such an exemption blank check to a state administration.

The Estonian authorities defend their policy digital by three main arguments. Firstly place, in an economically backward Eastern Europe, the "technological leap" was used as a narrative for the effort collective progress. Second, the very low population density has led the authorities to vastly increase the number of people in the country digital infrastructure plans. Finally - and not, without paradox given the risks of cyber attacks - the digitisation and the "dematerialisation" of the State has been defended as a desire for sovereignty and political independence from Russia. Estonia, in short, is a case of depoliticisation clearly assumed. The stated objective is thus to create an"invisible state" whose prerogatives would be reduced to those of a public service provider performance. The criterion of managerial performance this is why the relationship with the population is more clientist than civic-minded. Such a "Democracy As a Service" of the Estonian experience prefigures it the future of digital governance?

Governance by numbers

At the heart of governance is trust of the governed towards the rulers and cooperation between the representatives of the people. However, we are currently experiencing a crisis of popular confidence and public cooperation. Democracies, in the past, the Western world has faced crises in the periodicals characterised by a collapse of trust in politicians and institutions public, a low level of popular participation in the political process and a deep scepticism about the capacity of the democratic system to solve urgent problems or serve the long-term interests of a country as a whole. But the current crisis seems to be qualitatively different : the mutual distrust between citizens and the political class in the contemporary context which the philosopher Pierre Manent sums up as "populist demagogy and fanaticism of the centre" the way the world works; is not immediately compatible with the values of the system of representative government. These are based on the idea of government by the people as the advent of the digital age brings the in him the idea of "governance by numbers ".

Such a conception of governance ends up erasing physical and cultural boundaries, subjecting the nation state and the welfare state in the global marketplace and dismantles the protective rules that govern the nature, work and money.

This development calls into question the very idea of national and popular sovereignty. The representative model is also hybrid, combining elements of democratic, aristocratic and monarchical. The popular sovereignty is limited not only by the rule of law, but also by the prerogatives of the chief of State: "the elected representative is never the double nor the spokesman of the elector, but he governs by anticipating the day on which the public will pass judgement ". Today the loss citizens' confidence in their representatives undermines the authority of elected officials and, therefore, casts doubt on the legitimacy of the laws they pass, including the authority of the public institutions that are responsible for the management of regulatory policies.

Moreover, the social contract on which the representative system is being challenged by a representative even more fundamental development than the crisis in confidence - the very logic of representative democracy. This combines equality before the law with freedom of conscience and expression. Thanks to this double principle: citizens participate in the governance of the political space and, as the governed, they have the opportunity to criticize the rulers. In Civic participation and criticism, on the other hand, enable the democratic system to function and to improve by correcting its own excesses, in particular the concentration of power and wealth which characterises contemporary democracies. However, digital technology reinforces the extension and intensity of the process of globalisation, i.e. forces of the "Total market, populated by contracting particles having relations between them only based on interest calculation. This calculation, under the aegis of which one contracts, thus tending to occupy the place once devoted to the Law as a normative reference ". To the extent that where numbers replace the law as an instrument of governance, the law is giving way to software and the regulation to regulation.

Faced with this evolution, the representation by numbers that irrigate the rights and laws is more and more distant from the state of the real world. This gap between representation and reality undermines the credibility of the framework ethics of democracy. Thus equality before the law can hide not only privileges concerning the social status of certain people but also and especially differences in access to property - including data-linked private property personal. Indeed, the expansion of the global market is leading to a transformation of nature itself political power - the shift from the ideal of government by the people to the idea of a government impersonal, which is increasingly taking the form of the governance by numbers, enshrined in the notion of "state platforming" . Such a power favours the calculation of particular interests at the expense of theGood common, i.e. the triumph of individual or collective utility over interpersonal solidarity.From now on, competition between individuals considers economic calculation as being more fundamental that the pursuit of a just social order - that is the risk a return of social Darwinism fuelled by abuse monopoly of technological platforms.

Governance of infrastructure, governance through infrastructure

The particularity of the internet as a tool for power lies in the hybridization of multiple materials which gives it a true Leviathan nature in accordance with the famous allegory of Thomas Hobbes.Indeed, these polymorphic modes of power transcend the limits and historical actors of the law international, whether States or international treaties international. The governance distributed between the design of the technical protocols, the policies of private and commercial actors, and the administrative bodies for the operation of the network have inaugurated a new power ecosystem articulating at the global technical infrastructure, laws, and multiple stakeholders of all sizes.

These proxy power games for infrastructure have led to a real "infrastructure turnaround ". Thus, there are four interrelated dimensions of Internet governance through infrastructure. Firstly, a distinction must be made between the way the internet is governed from the way the of which it is used. Secondly, the necessary spectrum to the analysis of internet governance should not be limit to information technologies and issues software-related power, but to extend its attention to the material confines and their effects in the field of microprocessors or other specific applications of radio spectrum management, for example. Thirdly, the attention given to the institutions overseeing the internet infrastructure (ICANN...) should not hide the impact of technical designs, agendas, etc. policies of private companies, legislation and international law. Finally, beyond the technophile discourse, it is also necessary to underline the strategies of access restriction, control or even censorship. As a result, six functions of the Internet Governance ecosystem can be enunciated:

(i) The administration of critical resources (management domain names for example)

(ii) Setting standards and protocols techniques (TCP/IP, HTTP)

(iii) Coordination of access and interconnections (between the main submarine and land cables)

(iv) Cyber security policies(v) Policies towards private intermediaries (access providers, hosts, platforms)

(vi) The legal architecture and management of the rights of intellectual property

Contrary to popular belief, the internet is an extremely material hybrid device consisting of an invisible arrangement of the strata that make up the network of networks. The modalities of action of this reticular arrangement, its performativity, and its distribution are at the heart of governance issues.

This distributed, performative and "invisible" characteristic of internet governance questions the classical concepts, methods and disciplines political analysis such as Law or Political Science. The very nature of the powers thus deployed by the complexity of their interrelationships, the complexity of their deterritorialisation and their amplitude. Ultimately, the concept of sovereignty, an essential notion since the treaty ofWestphalia of 1648, is questioned head-on.

Towards « soft sovereignty »

The notion of sovereignty is the result of complexes historical buildings. If it fundamentally resides in a "natural" coupling with the notion of "historical buildings", then it is not only a question of the"naturalness" of a building of territory, the historiography of the sovereignty-territory couple also reveals a strong hybridity - which it the post-colonial period and more recently the post-Cold War period and the advent of a globalisation, inexorably eroding the authority of the states, as"sovereign subjects" of international law.

The breakthrough of the modern period, the foundation of power, gradually defined by the general will and popular consent (social contract), questions the link between sovereignty and territory, its inscription in the space and its new fragilities.

The authoritarian and even dictatorial powers have perfectly analysed the risks and the dangers of the new space and its new fragilities the potential of the Internet, such as China, which combines its leverage effect for economic growth with a high level of state control. For their part, democracies are caught in a vice between the defence of liberties and the protection of democracy individual and necessary limitation of their extensiveness, of which the modern sovereign state must be both the jure and de facto guarantor. However, there are many examples a clear loss of efficiency and sovereignty, notably concentrated in the inability to levy taxes fairly, ensure the security of the infrastructure and law enforcement.

This state of affairs, which is the result of a long devolution of state prerogatives, is reaching the limits of acceptance social. The year 2019 is likely to be one of a attempt to explicitly regain sovereignty by the Western democracies on the internet. From 2015 and the specific context of the fight against terrorism, along the state of emergency introduced by France for almost two years has enabled its outcome to be incorporated into the law common exception provisions on the subject of internet control. The entry into force in May 2018 of the General Data ProtectionRegulations (GDPR), the US Senate hearings leaders of the main digital players or the first record fines imposed on the same actors by the European Union for abuse of the dominant position illustrates the change in attitude of the state powers.

Nevertheless, this turnaround in the attitude of States, beyond the effects of the announcement, could turn out to be a dreadful trap. On an operational level, the restoration of a form of state sovereignty could, on the contrary, reveal the weakness of democracies.

Western countries to enforce the law against Leviathans digital. This collective threat to the loss of confidence both in the state authority and in the technology was publicly highlighted by theFrench President on the occasion of the Internet Governance Summit at UNESCO in November2018: "Our governments and our populations will not be able to tolerate for much longer the torrents of hatred that the Internet is causing upload anonymously protected authors online has become problematic. We are at the end of the year 2018 at a turning point: not only is the Internet under threat, but the Internet itself is beginning to be described by some as a threat, particularly in democratic societies ".

The introduction of new state regulations could result in archipelipelagization fast internet connection. Several initiatives point to the emergence of alternative protocols to TCP/IP. A number of founding figures (Tim Berner Lee, Louis Pouzin) are explicitly working on protocols that are supposed to restore an original Internet that is symmetrically protected from the excesses of commercial concentration and the state regulation. The decentralisation of future protocols and their multiplication would de facto lead to a de facto alternatives to the TCP/IP protocol, thus multiplying tenfold the destructive effects on state sovereignty. Naturally aware of this risk, will the future lie in an operational redefinition of the concept of sovereignty? Like the expansion of the procedures of soft law and the emergence of a true normative compliance framework, discussions are beginning to emerge on a sovereignty negotiated between States sovereigns and operators such as for example on the theme of hate speech on the platforms.

The majors, under the double pressure of the States and of a reputation crisis among their users, are looking for establish genuine para-legal procedures of "soft law" to take part in a regulation of their contents. Thus, an "appeal procedure" comes to be set up by Facebook in the event of a content block being contested by the social network. It is the negotiated "soft sovereignty" being seen the day to avoid the explosion of the internet, which is damaging for both states and majors?

Will the Internet still exist in 10 years' time? For Western democracies, the political toxicity of the internet reaches now critical thresholds. In addition to about the security of information systems, but more symbolically through a stake in the security of the naked of the inherent weakness of democratic systems which, by favouring absolute individualisation of the rights leaves the field free, including for its gravediggers. The performative effectiveness of sovereignty of the State as guarantor of collective trust is found in digital networks a formidable adversary. Is it possible to regain control? Were authoritarian regimes ultimately right to maintain a strong control over digital exchanges? The question arises simply because of legislative developments democratic states inexorably attracted by a model for restoring power. But a return of authority risks provoking a proliferation of protocols whose design incorporates an autonomy that is almost impossible to regulate in the facts.

Digital majors also have no interest in a libanisation of the digital sphere. A convergence of interests thus seems to be structuring a sort of balance of power between democratic states and digital majors. Some of them are in front of each other protect against the anti-social effects of networks while accepting a limitation of their sovereignty, others protecting their economic position by agreeing to moderate their abuse of a dominant position. Perhaps the worst is not to be expected from such a situation which, while it certainly erodes the ideal vision of the state sovereignty, could allow a form of balance of responsibilities in the digital sphere. This deep rooted trend towards the general "platforming" of social relations, not only economic, but also political, could perhaps avoid the explosion of the network of networks that is undeniably a source of aggravated conflicts.

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