Is there cyberspace?

No! There is no cyberspace! 

The illusion of cyberspace 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, anchored in 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 via the intergalactic internet, your spacecraft is under the national jurisdiction of the country where 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 the world’s 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 social media posts. 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 handle compliance across national borders. The critical solutions are legislative harmonisations and international agreements, such as the currently negotiated e-commerce regulations at the WTO.

Countries are seeking 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 might halt progress. This is changing as governments and parliaments realise 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 mitigate the risks posed by the 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 forefathers realised that it was better to have rules for how to behave than to fight each other. The Code of Hammurabi, one of the earliest legal codifications, is not different in function from modern law. They both deal with relations between people and the entities they create, ownership of land or intellectual property, contracts for trade and exchanges, and the risks to 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 public square. If they want to talk in the public square, they should know they are doing so 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 strike a delicate balance between all the 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’.