Durov and X-Brazil cases: The end of the illusion of cyberspace?

There is no cyberspace! 

Pavel Durov faced this simple truth when he was detained on 24 August in Paris. The owner of Telegram and one of the moguls of the virtual world ended up in real-world jail. The reality of ‘no cyberspace’ was underscored last week with the Brazilian government’s threat to ban platform ‘X’ if the company does not establish a legal presence in Brazil.

The Durov and Brazil-X cases symbolically mark the end of the illusion of cyberspace, which dates back to 1996, when in Davos, John Barlow wrote the Declaration of Independence of Cyberspace, telling governments that ‘Cyberspace does not lie within your borders’. 

Barlow’s declaration was deeply mistaken then and even more today, as there was no single digital activity beyond physical spaces under national jurisdictions. He, like many after him, confused the fascinating, almost miraculous, power of the internet with its technical and legal reality of being anchored in the physical space.

This mistaken illusion of cyberspace took off in academia, research, and governments. China named its top tech authority the Cyberspace Administration of China, and the US top tech diplomat holds the title of the US Ambassador at Large of Cyberspace Policy and Digital Policy.

Why is cyberspace an illusion?

The answers can be found in the way this text comes to you. Internet signals carrying these lines from my computer to you travel through cables, routers, and data farms, always under some national jurisdiction. Even if you read it from outer space through the intergalactic internet, your spacecraft is under the national jurisdiction in which the company that owns it is registered.

In a more realistic scenario, if you are in Asia or the Americas, you can get this text from me in Europe through submarine cables laid on the seabed of world oceans. Even if cables are laid on the open sea, they are still regulated by the national law of the companies where they are registered.

Anything happening online, from our Wi-Fi connection at home via submarine cables to a satellite connection, is under some national jurisdiction. Telegram posts or YouTube videos are always physically located somewhere, on routers, cables, or servers. We often confuse the lightning speed of digital communication with the fact that electrical signals carrying our data are always somewhere physically under national jurisdiction at any single point in time.

Why is this illusion of cyberspace dangerous?

The idea that when we are online we are in some lawless realm is dangerous for citizens, companies, and countries. More and more citizens are under criminal investigation for their posts on social media platforms. This trend, typical for authoritarian systems, extends to countries with long legal traditions, such as the United Kingdom. 

Such practices create significant legal uncertainty, as many citizens do not perceive that they break the law by posting certain content online. Their use of social media is almost like thinking out loud from the intimacy of their homes. Typically, they are unaware that their messages are not intimate discussions but shouting in the public square.

Companies face legal uncertainties by acting online across jurisdictions. It is a major problem for small companies that lack the administrative capacity to deal with compliance beyond national borders. The critical solutions are legislative harmonisations and international agreements, such as the currently negotiated e-commerce regulations at the WTO.

Countries are in search of ways to regulate AI and digital technologies. For a long time, governments were told they should not interfere with technological developments under a wide range of explanations, from not understanding tech to warnings that they may stop progress. This is changing as governments and parliaments realize that the internet impacts security, the economy, elections, and many aspects of the normal functioning of society. They are (re)acting by introducing new laws, starting court cases, or requesting global tech giants to have legal entities on their territories, as Brazil requested of ‘X’.

What can we do to contain risks from cyberspace illusion?

First, we should regain clarity of thinking by returning to ‘the basics’. For example, the law has the same function today as it did thousands of years ago when our far predecessors realized that it was better to have rules for how to behave than to fight each other. The Code of Hammurabi, one of the first legal codifications, is not different in its function from modern laws. They both deal with relations between people and entities people create, ownership of land or intellectual property, contracts for trade and exchanges, and the risk for society, to name a few. Thus, the first humble step is to avoid chrono-narcissism, which says we are special and substantively different from our predecessors.

Second, a massive awareness-building campaign should explain to citizens that real-world law also applies online. They should be aware that posting on social media is sometimes analogous to speaking in the leading public square. If they want to talk in the public square, they should know they are doing it while iterating on platforms such as Facebook or ‘X’.

Third, geolocation techniques should be used more to customise digital services to meet the legal requirements of national jurisdictions. In this way, users can be less exposed to legal risks and uncertainties. 

Fourth, states should make informed decisions on the gains and losses of being connected to the global digital world. They have to establish a delicate trade-off between all benefits and risks. While facing the more visible risks, we should not forget many ‘given’ benefits from keeping families in touch across continents via WhatsApp, WeChat, and other platforms, to e-commerce services such as Chinese Temu or American Amazon. Parliaments and governments should make informed decisions based on their fundamental economic, political, and societal interests, not vague notions such as ‘being part of cyberspace’.

What can we do at the Summit for the Future?

As we grasp that there is no cyberspace, we should preserve and build on all the internet’s societal breakthroughs over the last two decades. When world leaders gather on September 22-23 in New York for the UN Summit for the Future, AI and digital technologies will feature high on the agenda. Their decisions should encourage using technology to achieve human well-being, freedom, and development.

But, technology cannot do what is and should be humanity’s responsibility: to agree about core values and priorities for our future. Keeping this in mind, with clarity of thinking, technology can and should remain a powerful engine for human prosperity!