Co-authored by Klaus Stoll and Sam Lanfranco

Stakeholder Confusion

Using the lingo of Internet Governance, the “stakeholders” of digital technologies currently live in a state of confusion about their rights and responsibilities in the digital age. Digital technologies confront us with many questions we thought had been answered long before. We have a pretty clear understanding of our rights and responsibilities as citizens of our country, how a state should be governed, and how the private sector should conduct its business. These basic understandings that make up the social contract under which we live, seem to have lost meaning and validity in cyberspace.

Sovereignty in Cyberspace

As an example, let’s look at “sovereignty” and how it changes its traditional meaning in cyberspace. Sovereignty is generally defined as the supreme authority within a territory. In political theory, sovereignty describes the supreme legitimate authority over some polity. In international law, sovereignty is the exercise of power by a state.¹ Defining sovereignty in the context of cyberspace is difficult. First of all, there is no defined physical territory, or supreme authority; no state has the ability or right to exercise its power over all of it.

Cyberspace is real

That means we have a serious problem. Cyberspace is virtual, but it is also very real and does affect our physical and mental wellbeing for better or worse. Ask the people who, during the Covid-19 epidemic, were able to stay in touch with their loved ones or keep earning a living from home and also the child that is bullied online relentlessly. What we do in virtual cyberspace has real consequences and requires governance. Effective governance requires sovereignty which, as we have just seen, does not exist in the traditional sense in cyberspace.

The Discovery of Cyberspace

To help us understand the nature of sovereignty in cyberspace, let’s recall a team of engineer explorers setting sail to explore the world in the later part of the past century.² They discovered a world within our own: Cyberspace. It had always been there within the fundamental physical laws, but the explorer, through clever engineering, could make it real and enter it. From humble beginnings cyberspace, today covers the globe and expands into space. It continues to grow in size and influence, but the problems of its sovereignty and governance remain.

Claiming Cyberspace

Traditionally, when explorers discover new lands, they take a flag with them and when they are lucky enough to reach their goal alive, they stick the flag into the sand and claim the new territory in the name of their sovereign. In whose name our engineer explorers claimed cyberspace? Unlike previous discoveries, no indigenous people were lurking out of the bushes wondering what these alien visitors were up to. Cyberspace was empty, at least for the moment they were the only humans in there, so our engineer explorers, aware of the potential of cyberspace, based on universal laws of physics owned by no one, claimed it in the name of all humanity.³

Settling Cyberspace

For some time, the engineer explorers’ flag stood lone vigil in cyberspace. Eventually, others came and, finding valuable what they saw, began to plant their own flags. They all wanted their share, and they all had their interests at stake and at heart when they made their claims. With their self-interested stakes, they claimed the right to decide how cyberspace would be run. Cyberspace beach is full of stakeholder flags, and daily, someone somewhere adds new ones.

Law and Governance in Cyberspace

Our discoverers where engineers, not soldiers, lawyers, or politicians, so despite their best efforts⁴, they left the new territory nearly defenseless. Many stakeholders behaved as if cyberspace was lawless and whatever they did was legitimate. They justified their behavior by separating the virtual from the real world, declaring cyber as a space where just extreme rights, but no responsibilities, existed. Others tried to establish their own law that is heavily influenced and tainted by the specific interests of the stakeholder group they represent.⁵ Cyberspace became a land of egoistic endeavors where the most ruthless and meanest gunslinger prevailed. Law makes a distinction between de jure and de facto. In cyberspace there is little de jure and a lot de facto when it comes to the norms set for behavior. That situation serves many cyberspace actors very well, and they go to great lengths to sabotage the establishment of governance and law in cyberspace.

Depleting the land of its most precious resource: trust

The law of the bully and governance by fiat might work for some time, and it might even initially be the fertile ground for the explosive growth of the land in size and resources. Sooner or later, the process will run out of victims to destroy or exploit, and the worm will turn. Relentless digital exploitation, constant intrusions into privacy, and routine breaches of personal security result in cyberspace becoming gradually more and more unsuitable for human habitation. On earth, land might turn into a desert because it runs out of water. Cyberspace is on its way to becoming a desert because it is running out of trust that allows its inhabitants to live together. Cyberspace is losing its trustworthiness, and we all know how serious the consequences are when trust is lost, and we also know how difficult it is to restore it. Trust transfers easily into cash, but cash seldom turns into trust. A trader in the marketplace that shows concern for its customers even when he is in a position to exploit them for a short-term gain is trusted, and people will return to trade. Digital exploitation is a one-off deal and is only sustained by hiding the harm behind convenience, the deliberate nurture of consumer indifference, and lack of transparency. A brand can be built up in this way, but it cannot be sustained. Different sectors might have different strategies to compensate for the lack of trust, the private sector by promoting blind consumerism, the governmental sector through authoritarianism, the individual, might retreat into isolation. Still, in the end, none of these strategies is sustainable.

Too big to fail

The current situation is holding us back from making the best use of the digital opportunities that we have before us. We have now established much of the world’s economy in cyberspace. While there may be many operations that are too big to fail, cyberspace itself is the biggest of them all. Nevertheless, we avoid asking what is or what should be the law of the land in cyberspace. Our egocentric instincts tell us to avoid any restrictions and to enforce our will to gain an advantage. Our brains are still geared to living in a physical world in which we have to compete for limited resources.

Learning the lay of the land

Despite the proliferation of digital devices, despite the ever-increasing dependency on and time we spend in cyberspace, we still have not grasped that this new realm is fundamentally different from anything we discovered and inhabited before. The available space is endless; we don’t have to compete for it. Distance and space are irrelevant; we easily communicate and co-operate globally. Our scientific curiosity and imagination are the only limits to what we can create. People are the only true and valuable resource of cyberspace. We have to learn that cyberspace is different and requires different behaviors.

Let’s be Egoists!

We are still living in the real world, where we all have to eat and want to be safe and comfortable. Some co-operation with others, in particular, our nearest and dearest, might be advantageous for us, but in the end,  the establishment of non-compatible standards fragments the networks. Any other harmful behavior fragments and weakens the very thing we are keen to exploit. In cyberspace, co-operation is the new egoism. The need for co-operation is limitless. In cyberspace, respect for the need and digital integrity of others, combined with the willingness to co-operate, are the highest expressions of pure personal egoism, as they guarantee us the biggest and best return on our engagement and our efforts.

How can we become egoistic digital citizens, and what should be the law of the land? Fortunately, the answer is not complicated. We need only return to the first flag our engineer explorers planted. With the benefit of hindsight, we might be able to turn back the clock. It is not too late to do so. Cyberspace can still be saved from itself.

The will of the digital citizenship as the source of digital sovereignty

The engineer explorers rightfully claimed cyberspace in the name of, and for the benefit of, all humanity. Scientific exploration and engineering should benefit all and not just parts of humanity. The global and virtual character of cyberspace makes it a space where the will of its residents, that have become digital citizens by exercising their rights and responsibilities as digital citizens, is the single source of its sovereignty. Sovereignty in cyberspace means sovereignty that is based on the will of the people that occupy it. At one crucial level, it is global and not territory or slice of the globe. Since we are talking here about fundamental and universal values, we can make such fundamental and wide-ranging claims. This points us to the answer to the question of what the law of the land in cyberspace should be.

Fundamental Human Rights as the source of digital governance

What humanity ultimately has in common is the dream, which the Universal Declaration of Human Rights (UDHR) ably and concisely describes as our desire for “freedom from fear and want”⁶, in other words the need for fundamental human rights as guarantor for our literal physical and mental wellbeing.

DNS Values

The Internet’s Domain Name System (DNS) is the address system for cyberspace and is the key element that makes the dream of global connectivity and communication possible. In recognition of cyberspace’s universal character, our engineer explorers enshrined the fundamental human rights values, such as freedom and equality, into the very technology that opens up cyberspace for us. It’s not just a marvel of engineering, beautiful to behold, but also a manifestation and demonstration of respect for human dignity and integrity. The DNS has many other intended and unintended functions; domain names were used as tools to monetize numbers and keep the startup internet financed, but at its core, it is a tool to express and attain human desires and needs. (Those who want to prevent these values occasionally try to create their own address system that reflects their own interests). That is why the DNS is a fundamental Human Rights issue, and those responsible for its security, stability and infrastructure should stand above and should not be subjected to sectorial interests.⁷

This makes the UDHR the natural and only reference point for digital governance, making freedom and equality the foundational values of cyberspace, extending the same rights and responsibilities to all digital citizens of cyberspace.

A digital Bill of Rights and Responsibilities

After recognizing the universal Human rights as expressed in the UDHR as the foundations for Internet Governance we next need to express and embody our digital human rights in a Digital Bill of Rights and Responsibilities, (in the following: the Bill). The Bill is needed to delineate the rights and responsibility, role, and function of all stakeholders. The Bill does not restrict stakeholder action but frees them to take full advantage of the digital opportunities that emerge as it gives them the security and stability they need to keep using and operating in cyberspace. The Bill should not formulate a new set of digital human rights but translate the existing unchangeable human rights into cyberspace.

There have been some attempts to create and establish digital bills of rights, but these efforts reflect stakeholder interests and are not solely motivated and informed by fundamental human rights.

Restoring Trust

The Bill shifts the viewpoint from the limited and self-interest-driven perspective of cyberspace to a common human-rights-based one. In so doing, it allows stakeholders to restore trust. The Bills should result in an initial period of healing and restoration trust resulting in growth and wealth without paying the price of exploitation and suppression.

Free from the shackles of surveillance capitalism, individuals will have a new powerful tool to realize their freedom from fear and want and for the pursuit of happiness and wellbeing.

Governments will be able to accept that whilst their sovereignty over their territory and citizens remains fully intact, they have to share sovereignty in cyberspace with all other digital citizens.

Innovators and startups will flourish on a level playing field without danger of being bought and swallowed in order to prevent their superior products from becoming a competitor to an established monopolist.

We will have no longer worry about the size, impact and quasi-monopolies of online platforms. To stay successful and relevant, they will adopt human rights standards and operate fairly as a necessity for staying in business.

Sound profits by the private sectors will no longer be a cause for suspicion and envy but a badge of honor indicating excellence in the digital integrity of a company that’s been rewarded with their customers’ trust.

Registries and Registrars will be freed from the need to engage in policy-making to keep the DNS and the infrastructures it resides on free from undue influences that threaten the unity and interoperability of cyberspace. As the trust in cyberspace is restored, they will also experience unprecedented growth in the demand for their services.

Artificial Intelligence (AI) and big data will be able to flourish because they will have access to the data they need as the data they receive will be collected with the agreement and with full concern towards the person that generated it in the first place.

Internet Governance organizations can concentrate on their primary roles, such as ensuring the security and stability of the DNS without sectoral interests interfering with their work.

Finally, and maybe most important, the potential of digital technologies to assist in reaching reach the world’s Sustainable Development Goals, (SDGs), will be fully realized.⁸

In part 2 of the article, we will have a look on how a digital Bill of Rights can come about and get established. Part 11 of the Series⁹ will explore some of the possible content of the digital Bill of Rights.