In James C. Scott’s classic work, Seeing Like a State (1999), the political scientist and anthropologist examines some of history’s most notorious attempts at social engineering, from agricultural collectivization in the Soviet Union to Mao’s Great Leap Forward to the forced “villagization” campaigns of Ethiopia and Tanzania (just to name a few), all of which were unmitigated disasters that resulted in the deaths of millions and untold human suffering.
Though unique, at least in the ways in which each meted out misery, Scott identifies a common ideology informing all of these sociopolitical arrangements: high modernism.
For Scott, high modernism “is the attempt to design society in accordance with what are believed to be scientific laws.” Where proponents of high modernism go so spectacularly wrong, according to Scott, is in viewing these laws narrowly, reducing them to account for “only those aspects of social life that are of official interest” (Scott 1999). As a result of this administrative myopia, governments ignore the value of local knowledge, or what he calls “metis,” and the ways in which these unquantifiable and “illegible” practices contribute to the “bio-diversity of society”. In this way, Scott argues that high modernist experiments fail precisely because they ignore this “bio-diversity” and the many forms of “metis” that keep it functioning.
Similarly, journalist and urban sociologist Jane Jacobs (who would have turned 100 this year) cites high modernism as the primary ideology behind many of the failed urban planning schemes of the mid-20th century, most notably the construction of insular housing projects that cemented racist housing policies into the architecture of America’s urban centers. In her 1961 work The Death and Life of Great American Cities (Jacobs 1992), Jacobs argues against the notion that geometric and aesthetic order in urban planning necessarily produces social order. Critiquing urban planning’s preoccupation with the aesthetics of the day, Jacobs describes what she calls the micro-sociology of public order in which, “the public peace — the sidewalk and the street peace — of cities…is kept by an intricate, almost unconscious network of voluntary controls and standards among the people themselves, and enforced by the people themselves” (Jacobs 1992).
If this sounds vaguely familiar it is because these “voluntary controls” and standards-setting processes are strikingly similar to those that have governed the Internet over the past thirty years.
In fact, in describing the ways in which high modernism has a tendency to inform ill-conceived efforts at social engineering through infrastructure, Scott and Jacobs’ work serves as a warning to those who would seek to impose centralized planning schemes on an inherently decentralized network of networks.
To this end, a recently published report by Bertrand de la Chapelle and Paul Fehlinger of the Internet and Jurisdiction Project titled Jurisdiction on the Internet: From Legal Arms Race to Transnational Cooperation, examines how and why nation-states feel increasingly compelled to impose Westphalian notions of territorial sovereignty in cyberspace.
“Confronted with increasing domestic pressure to address cyber issues, governments feel compelled to act on their own, using an extensive interpretation of territoriality criteria,”write de la Chapelle and Fehlinger (2016). And while the precise ways in which various governments act on this “hyper-territoriality” (de La Chapelle and Paul Fehlinger 2016) depend, to a large extent, on the domestic interests and geopolitical goals of a given nation-state, they tend to manifest in one of two ways: (1) through so-called extraterritorial extension (de La Chapelle and Paul Fehlinger 2016) or, conversely, (2) through the attempted fortification of borders in cyberspace, popularly referred to as Internet sovereignty.
Extraterritorial extension occurs when the laws of one nation-state extend beyond its borders and into other jurisdictions via the Internet. More often than not this is the result of global Internet platforms like Facebook and Twitter incorporating in one country and operating globally, exporting the laws and values of these private companies — and their home jurisdictions — to other countries in which they do business. While this would seem an obvious positive externality of a free market system in which innovation spreads political and economic values and human rights, it can also result in conflict, as in the now-infamous “innocence of muslims” case, in which an anti-Islamic movie trailer sparked heated protests across the muslim world before being taken down by Youtube. In this way, private sector content intermediaries increasingly serve public interest functions, making policy decisions that affect users at home and abroad.
Similarly, questions regarding the extension of US law were central to a recently decided case in which a US federal appellate court ruled that the US government could not compel Microsoft to turn over emails stored on company servers located overseas (Stempel 2016).
Likewise, private sector domain name registrars based in the US (e.g. Verisign) extend US law extraterritorially when they shutter the domains of foreign registrants at the behest of governments, a practice that has become one of the primary tools used by regulators to enforce intellectual property rights online (as in the Rojadirecta case) and, in some cases, to shutter websites trafficking in politically sensitive information (as in the Wikileaks.org case).
Meanwhile, lawmakers project domestic policies abroad through the enactment of laws designed specifically to reach across their borders, such as the EU’s General Data Protection Regulation, which requires any company, regardless of where the company is based, to delete, return, or otherwise amend data pertaining to EU user’s, upon request (EU’s General Data Protection Regulati…).
Finally, extraterritorial extension is enacted through court decisions that go on to impact users beyond the ruling court’s jurisdiction. Here, a recent decision handed down by a French court ordered Google to remove the names of claimants of the so-called “right to be forgotten,” not merely from Google searches in France (on the companies “google.fr” search engine) but globally, on all of Google’s search engines, including “google.com”.
It is in this sense that the Internet and Jurisdiction Project warns of a coming “legal arms race in cyberspace,” arguing that “extraterritorial extension of national jurisdiction is becoming the realpolitik of Internet regulation” (de La Chapelle and Paul Fehlinger 2016).
Of course, as nation-states struggle to come to terms with the borderless and porous nature of the Internet, extraterritorial extension has, in some cases, given way to its opposite: territorial fortification.
Here, many governments left with “a sense of powerlessness… to impose respect for their national laws,” (de La Chapelle and Paul Fehlinger 2016) have developed a cyber-protectionist mindset, leading to calls for the protection of so-called “Internet sovereignty”. In this way, Chinese officials have turned to “Internet sovereignty” as a response to the extraterritorial extension of foreign internet platforms and content entering their borders, serving as a justification for the expansion of the ruling party’s so-called “Great Firewall”.
And yet, these seemingly arcane technical debates over Internet governance and infrastructure do not occur inside a bubble. Rather they are very much subject to current events and geopolitics. In fact, in the wake of the Snowden revelations, many nation-states have assumed a defensive posture in regards to the protection of their data in cyberspace. Indeed, it would be fair to say that no single event has contributed to the reterritorialization of cyberspace — and all the consequences it entails — more than the Snowden revelations.
It is in this post-Snowden climate of mutual suspicion that governments now find themselves lobbying tech firms to install “backdoors” into their products, granting investigators access to the communications of suspected criminals. Meanwhile, data localization laws have gained greater traction in this post-Snowden environment, as governments, most notably in Brasilia and Moscow, look for ways to protect their citizen’s data from the prying eyes of foreign intelligence services (while preserving its utility for domestic spying).
Moreover, as the domain name system (DNS) becomes a more decentralized and commercialized namespace — especially in light of the opening up of new set of generic top-level domain names (gTLDs) — and as country code top-level domains (ccTLDs) become more popular due to their semantic reference to nations and the jurisdictional loopholes they provide, many ccTLD operators are turning to presence requirements, requiring registrants to maintain a physical presence in their jurisdiction. The irony of course is that while these presence requirements bolster the territorial integrity of a given ccTLD’s namespace, they also fuel the growth of commercialized ccTLDs offering cheap — or in some cases free — TLDs to users irrespective of geography, a phenomenon that has fueled the growth of what I refer to as the “offshore information economy”; an economy that like other iterations of offshoring (tax havens, gambling, flags of convenience, etc.), simultaneously reinforces and undermines notions of territorial sovereignty.
And so, as nation-states continue to experiment with legal and regulatory frameworks designed to impose Westphalian frameworks on an inherently decentralized network of networks, regulating “only those aspects of digital life that are of official interest,” Scott and Jacob’s work serves as a prescient reminder of the risks involved in such sociological — or in this case sociotechnical — experimentation, and the pitfalls of ignoring the many forms of “metis” cultivated by the networked information society.