The Ambiguity of Digital Sovereignty between Cybersecurity and Digital Rights

Abstract

Digital sovereignty has become a popular concept in international relations and beyond. An increasing number of countries started to vindicate greater control on data flows and digital infrastructures affecting their territories or citizens, especially with regard to security concerns. This paper argues that the spread of sovereigntists’ claims is likely to increase geopolitical tensions and conflicts since actors employ a twofold and ambiguous notion of sovereignty applied to cyberspace. On the one hand, we have a classical conception, based on the notions of territoriality, authority, and population, according to which states claim an exclusive faculty to control the digital infrastructure of their jurisdiction and the data of their citizens. On the other hand, the transborder nature of the Internet and its distributed architecture favoured the rise of a conception that disentangles the sovereign from the territory and shifts the focus from the “recognized authority on a territory” paradigm to concepts such as autonomy, power, and self-determination. This latter conception justifies the idea of a “sovereignty of cyberspace”, but paradoxically, it also constitutes the basis for States’ claim to extend their jurisdiction over processes taking place outside their boundaries, or in some no physical space, if they impact their national interests or citizen rights. Through in-depth quali-quantitative content analysis and impact assessment of selected policies, such as the EU NIS directive, Cybersecurity Act, the US Cloud Act or the Chinese Personal Information Protection Law, the paper argues how conflicts among overlapping and competing for sovereignty claims are deemed to arise, and new forms of international agreement are needed. The paper also addresses the question of the relationship between digital sovereignty and digital constitutionalism. The two concepts are often overlapped and blurred in a misleading way, which makes it more difficult to understand how to safeguard fundamental rights in the digital space. It will be illustrated how digital sovereignty and digital constitutionalism give rise to an ambiguous relationship, being digital sovereignty is a necessary but not sufficient condition for the affirmation of effective digital rights, which could easily reverse in a threat to constitutional guarantees.