Since the advent of the Internet, politicians from all ideological and national backgrounds have raised the question of a cyberspace “without borders.” Their perception of a digital world “without borders” exposes the challenges governments face when attempting to exercise their sovereignty in it—or even the impossibility of doing so.
Yet while cyberspace facilitates communications that transcend state borders, it is not a monolithic space. Rather, it still reflects the world’s complexity, and in cyberspace, borders maintain their function as barriers, but also their porosity. This creates many conflicts between countries because the way cyberspace functions is subject to physical and geopolitical constraints. However, it is obvious that the digital world, through its inherent characteristics, alters and transforms the traditional view of borders: The outlines cannot be transposed the same way they would be in a geographical space.
In reality, state borders in cyberspace are more complex, more fluid, and perpetually being reconfigured. They also may create nonadjacent spaces that can, in certain ways, overlap.
Testing borders and sovereignty
Discourse about a cyberspace “without borders” has occurred in two periods, raised by two different types of actors for radically different reasons. Despite what the expression implies, the concepts of borders and territories fundamentally structure the discourse.
At the start of the 1990s, during the birth of the Internet, a utopian narrative emerged among the pioneers of cyberspace. This narrative likened its characteristics to those of physical territory: a population (Internet users), a mode of governance (autoregulation), and its own value system (transparency, opposition to a hierarchical system, etc.). This territorial depiction of cyberspace is present in “A Declaration of the Independence of Cyberspace,” published in 1996 by the late John Perry Barlow, co-founder of the Electronic Frontier Foundation. This statement defines cyberspace as a territory that does not fall under the sovereignty of states, thus establishing a new boundary between the geographic territory of states and cyberspace.
But by the beginning of the 2000s, politicians began to see a cyberspace “without borders” as a space “out of control,” or a “lawless” area. Contrary to the pioneers, politicians use the expression as a criticism rather than praise because of the significant difficulties states face in applying their national laws in cyberspace, and in exercising their national security and defense prerogatives. Indeed, the transborder nature of cyberspace generates many challenges for authorities struggling to fight the rise and proliferation of cyberattacks, cybercrime, and online hate speech. The fast pace of evolution in the digital world also challenges the ability of states to consider, create, and enforce strategies or pass legislation to address new technologies, capabilities, and uses. Political speeches denouncing the “borderless” nature of cyberspace reveal that governments understand they have lost some of their sovereignty, and hint at their desire to project their frontiers in cyberspace.
Projecting state borders: entanglements and overlays
At first, some states attempted to recreate their physical borders through network infrastructure. The best-known example is China’s “Great Firewall” of the 2000s; since its creation, this system of censorship has evolved significantly and increased in complexity. Today, comparing it to a firewall would be insufficient to say the least, if not completely false. Yet the desire to erect digital borders that match physical borders persists: More recently, in late 2019, Russia and Iran temporarily disconnected their national networks from the World Wide Web. These actions were presented as protective and defensive actions in the event of cyberattacks deployed from abroad.
Efforts to project state borders into cyberspace also include enforcing state laws in cyberspace. Indeed, states try to project their legal borders into cyberspace to exercise their normative and enforcement jurisdictions (the application of laws and regulations to events occurring mostly abroad). To that end, governments try to connect a cyber event to their territory by referring to the physical location of information technology (IT) infrastructure (Internet cables, servers, etc.), individuals, or entities within their territory. They also invoke the nationality of the legal entity or natural person tied to the cyber event as a connecting criterion. Because each country tries to project its borders—and several countries are more likely to claim such a connection—competing jurisdictions sometimes take place around a single cyber event.
A peaceful coexistence of jurisdictions occurs in many cases, but some situations can lead to friction. One of the most famous and well-documented examples of overlapping jurisdictions is the Clarifying Lawful Overseas Use of Data (CLOUD) Act, a US law that mandates every US firm, including their affiliates, to disclose data hosted on their servers, wherever in the world these servers may be located. This 2018 law has been the target of much criticism, including in Europe, and to this day continues to elicit serious concerns, due to its extraterritoriality. Yet from a legal perspective, its illegality is not entirely proven, since the law is based on a connection: the nationality of the company.
The ability of the CLOUD Act to go beyond the territorial nature of infrastructure has also been perceived as a threat to the sovereignty of other states. Questions have been raised regarding the compatibility of the CLOUD Act with the General Data Protection Regulation (GDPR) that protects the data of citizens of the European Union (EU), including when data is processed by non-EU firms. In certain situations, this could lead to a de facto limited application of the GDPR in favor of the CLOUD Act. The projection of state borders into cyberspace, and the conflicts it can generate, show that the concept of borders in cyberspace remains relevant. Nonetheless, this projection raises many points of friction because of the entangled and overlapping claims of sovereignty that it causes—and thus adds new complexity to the notion of borders.
Geopolitical conflict and the fluidity of digital borders
Beyond static (physical infrastructure) and traditional (legal field) projections of state borders in cyberspace, there is a new type of border specific to the way networks function, which are much more fluid and dynamic, with constant and swift updates. While networks may be reconfigured for technical reasons, they can also be adapted for geopolitical reasons. The control of infrastructure and its protocols is indeed “at the heart of major political and territorial challenges,” according to an analysis of routing and the Border Gateway Protocol, one of the main protocols that allows the Internet to run.
Take Ukraine for example. Since 2014, Russian authorities and separatist forces have carried out actions to tether the networks of Donbas and Crimea (and the traffic they generate) to that of Russia to create a “sort of ‘digital front line’ that reflects the military front line.” The goal for Russia and separatist forces is not only to control the network, but also to bring these territories under Russian influence. These actions fall within a larger political strategy of the Russian authorities to establish a “sovereign” Internet, in the same vein as the temporary disconnections mentioned earlier.
Geopolitical conflicts can therefore shape the boundaries of cyberspace by modifying existing borders and creating new ones. Thus, the territorial dynamics of annexation or fragmentation also exist in cyberspace. Far from the utopian representation of a world “without borders” so deeply desired by Internet pioneers, cyberspace is indeed a field of confrontation for states that wish to extend their legal borders or their spheres of influence. But a forecast of what could happen leads one to think about borders not only as set and static—physical borders have never been, for that matter—but as extremely fluid and dynamic constructs.
This article was originally published in French in Diplomatie, no. 109 (May-June 2021).