Sovereignty 2.0.

• Author: Chander, Anupam

Table of Contents I. Introduction 284 II. From Hobbes to Zuckerberg: The Rise of Digital Sovereignty 290 A. Defining "Digital Sovereignty" 291 B. China: Inventing Digital Sovereignty 293 C. The EU: Embracing Digital Sovereignty 298 D. Russia: Promoting the Runet 300 E. The United States: Digital Sovereignty by Default 301 F. The Global South: Avoiding Data Colonialism 303 III. How Digital Sovereignty Is Different 305 A. Always Global 306 B. Against Corporations 307 C. More Control 308 D. Enables Protectionism 309 IV. The Double-Edged Sword of Digital Sovereignty 311 A. Speech 312 1. NetzDG (Germany) 312 2. Eva Glawischnig-Piesczek v Facebook Ireland Limited (European Union) 314 B. Privacy 315 1. Justice Reform Act (France) 315 2. Data Protection/Didi (China) 316 C. National Security 317 1. TikTok Ban (United States) 317 2. NSO Spyware for Hire (Israel) 320 V. Conclusion 323 I. INTRODUCTION

The internet was supposed to end sovereignty. "Governments of the Industrial World, you weary giants of flesh and steel, you have no sovereignty where we gather," John Perry Barlow famously declared. (1) Sovereignty would prove impossible over a world of bits, with the internet simply routing around futile controls. (2) But reports of the death of sovereignty over the internet proved premature. Consider recent events:

* In late 2020, on the eve of what was to be the world's biggest initial public offering (IPO) ever, the Chinese government scuttled the listing of fintech provider Ant Group. Before the failed offering, Ant's CEO, Jack Ma. had made what some saw as a veiled critique of the government: "We shouldn't use the way to manage a train station to regulate an airport.... We cannot regulate the future with yesterday's means." (3) Chastened after Beijing's intervention, Ant announced that it would "embrace regulation," and Chinese netizens declared Jack Ma duly "tamed." (4)

* In June 2021, France fined Google $593 million for failing to follow an order to negotiate with news publishers to compensate them for displaying snippets of the publishers' news items before linking to them. (5)

* In July 2021, Luxembourg's privacy regulator fined Amazon $887 million for data protection violations. (6)

* European Union (EU) authorities are simultaneously investigating Google's ad technology, Apple's App Store, Facebook's Marketplace, and Amazon's use of data from its third-party sellers. (7) Even Facebook Dating receives unwanted attention from the British competition authority. (8)

* The technology giants are not safe even at home, as Ant discovered. In the home of most of the world's largest internet companies, the US Federal Trade Commission (FTC) seeks to compel Facebook to divest WhatsApp and Instagram, while investigating Amazon for competing with merchants that use its platform. (9) The federal government and all but two US states are bringing antitrust claims against Google, (10) and the US Justice Department is investigating Apple's App Store. (11)

* Assertions of digital sovereignty are hardly limited to Western nations. After Twitter deleted the Nigerian president's tweets warning of a new civil war, the Nigerian government in June 2021 simply banned Twitter from the country. On the eve of an election in January 2021, Uganda went even further, ordering a complete shutdown of the internet, with President Yoweri Museveni explaining that Facebook had deleted pro-government accounts as manipulative. (12) Uganda followed the example of Zimbabwe, which responded to anti-government protests in 2019 by shuttering the internet. (13)

The state (both nation-state as well as nearly every US state) strikes back. (14)

Scholars are sharply divided about the increasing assertion of what is called variously "data sovereignty" or "digital sovereignty." (15)

Some scholars see it as a natural extension of traditional Westphalian sovereignty to the twenty-first century. (16) They are joined by other scholars, often from the Global South, who support data sovereignty in order to repulse imperial ambitions for data colonialism, a barricade against the exploitative and extractive practices of Western (and Chinese) technology giants. (17) Other scholars, however, worry that data sovereignty will break the web apart, jeopardizing its numerous global benefits. (18) As Mark Lemley astutely laments, "The news you see, the facts you see, and even the maps you see change depending on where you are." (19)

Digital sovereignty is necessary to protect privacy, ensure consumer protection, promote competition, and enable law enforcement. Developing countries should indeed seek to ensure that the digital economy does not leave them behind. However, even as scholars understandably seek to protect individual rights through digital sovereignty, they often neglect the critique that sovereignty can insulate human rights abuses from outside review. Away with the "Sword," the preeminent human rights theorist Louis Henkin cautioned. (20) This Article argues that Henkin's concern is even graver with respect to digital sovereignty, which presents a greater risk of totalitarian control. While digital sovereignty may well be a geopolitical necessity in opposition to both foreign governments and foreign corporations, digital sovereignty also allows a government to assert enormous powers over its own citizens, and thus deserves exacting scrutiny. This is the double-edged sword of digital sovereignty: it both enables the protection of residents and their control.

The ongoing tech wars between the United States and China, as this Article shows, epitomize the double-edged sword of digital sovereignty. In 2020, the Trump administration issued a series of executive orders that had the effect of banning TikTok's and WeChat's operations in the United States on national security grounds. (21) While dealing with potential threats posed by China's collection of data through these platforms, the government turned a blind eye to the serious harm its orders had caused to speech protection. (22) The upshot was that more than 100 million US users (23) would have been muted on TikTok, a digital platform crucial for social activities during the COVID-19 pandemic and for politics on the eve of an election. (24) American courts reacted to the dark side of the US government's assertions of digital sovereignty. The courts enjoined those sweeping orders against TikTok and WeChat because they "burden [ed] substantially more speech than is necessary to serve the government's significant interest in national security." (25)

This Article is the first comprehensive account of digital or data sovereignty. (26) It surveys the various ways in which states are asserting digital sovereignty. It argues that digital sovereignty is not merely a twenty-first-century extension of traditional sovereignty, necessary to discipline the corporations that have enormous power in our lives, but also that digital sovereignty is especially susceptible to hijacking by abusive governments.

This argument helps explain a puzzling feature of discussions of digital sovereignty: observers generally welcome digital sovereignty efforts by governments in the Global North but deplore such efforts by governments in the Global South. (27) In the former case, digital sovereignty is recognized as the government protecting citizens-either from foreign governments or corporations. In the latter case, digital sovereignty is seen as the government hijacking the internet to protect itself. This disparity is true across a range of issues, from content moderation, to data privacy, to data localization, to national security. The double-edged nature of digital sovereignty also means that sometimes only the negative end of digital regulations can be seen. The American government, academics, and media have rightly observed how the Chinese government's assertions of digital sovereignty beefed up its political control and trampled on human rights through measures such as internet filtering, digital surveillance, and data misuse. This sometimes means that aspects of these laws that protect citizens' rights are not recognized as such. Notably, China has been actively protecting citizens' data privacy rights through waves of legislative proposals, regulatory measures, and judicial decisions (though there are dangers in this exercise as observed below (28)).

This Article's argument exposes a difficulty in one popular framing of digital sovereignty as an effort to thwart Chinese technology dominance on the grounds that Chinese technology inherently promotes greater authoritarian controls. This Article agrees that technologies are never neutral, (29) and they can be more or less adaptable for authoritarian purposes. However, this framing of an ethical North vs. an unethical South obscures the fact that regulatory systems everywhere have to be better prepared for the abuses of technology by governments keen on maintaining their power. The recent revelations of the widespread use by countries in Europe and across the world of spyware by Israeli surveillance provider NSO dramatize this concern. (30) There is no need for a government to adopt Chinese technologies (31) if one can buy spyware off the shelf from Western suppliers.

This Article argues for digital sovereignty, but within a system of checks and balances, and limited to protect the virtues of the global internet. Digital sovereignty is both necessary and dangerous. It is both merely an incident to popular sovereignty and its bete noire.

This Article proceeds as follows. Part II describes the emergence of Sovereignty, 2.0. Part III observes the unique characteristics of this new twenty-first-century sovereignty. Part IV explores the doubleedged sword of digital sovereignty through recent regulatory interventions. Part V concludes.

2. FROM HOBBES TO ZUCKERBERG: THE RISE OF DIGITAL SOVEREIGNTY

   When Thomas Hobbes imagined an "Artificial Man" in the form of a state, (32) he was not...