Cyberspace has been described as an unregulated mess where ransomware hawkers and data brokers peddle their wares alongside nation states, spy agencies, corporations, journalists and activists. Who governs who is up for grabs in the digital universe while some states are building their own internet in a fragmentation called the splinternet. The word splinternet is often pluralized to describe the internet as splintering into parallel internets that function as autonomous universes. The balkanization of the internet based on nationalism or political philosophy poses profound dangers for human rights, freedom of expression and the right to access information and ideas.

1. Introduction

In a speech delivered to the National Cyber Security Centre’s CYBERUK conference in 2021, Britain’s Foreign Secretary Dominic Raab called on the nation to continue growing its capabilities to defend its online interests in order to advance its “vision of being a leading responsible cyber power” and shape cyberspace “according to our values.” Mr. Rabb pointed the finger at authoritarian regimes such as China and Russia that use digital technology “to sabotage and steal, or to control and censor.” He challenged Britain to maintain a free and open cyberspace based on respect for international law. (here) Reporting on the speech in The Guardian edition of June 3, 2021, Flavia Kenyon described the “invisible battle for control of cyberspace” as an ideological imperative that the liberal democracies imbue the rest of the world with “our values”. (here) I reference Mr. Rabb’s speech, delivered over a year and a half ago, as a backdrop to frame the question: On what is the ideological imperative of the liberal democracies based?

2. Internet Sovereignty

The answer to the question is critical as the global internet is becoming fragmented by states such as China and Russia. Each fragment is governed by regulations which create “parallel internets” that are not connected. In a post to TechTarget titled The splinternet explained: Everything you need to know dated June 7, 2022, Amanda Heller described the fragmented internet as “a walled-off infrastructure that separates into geopolitical areas, much like geographic regions.” (here) On the open internet, a user can access any site by simply typing in the domain name. But in a fragmented internet, governments or other organizations control what may be accessed. Entering a specific domain name may not take the user to that site or the site may display a ‘blocked’ notification. The censorship of internet content in this way controls the free flow of information and ideas. It facilitates the spread of disinformation and contributes to the complexities inherent in content moderation.

The politics of internet sovereignty lie at the core of the balkanization issue. Authoritarian governments argue that all governments should have control over their portion of the internet. States assert autonomy over territorial boundaries, airspace and the territorial sea. So too, the argument goes, should states claim sovereignty over their part of the internet. The critics of balkanization see it as the end of the global internet that would limit access to information, restrict innovation and facilitate systems of social control. On April 28, 2022, the United States and sixty other countries, including Canada, launched A Declaration for the Future of the Internet reaffirming a joint commitment to sustain an open internet to ensure that it “reinforces democratic principles and  human rights and fundamental freedoms”. (here and here) The declaration affirmed that the internet should operate as a “single, decentralized network of networks” whereby governments partner with civil society. Although the declaration has been criticized as “largely ceremonial” (here) I see it as more practical and influential. It is another incremental step toward an international rules-based internet order grounded in respect for human rights and fundamental freedoms.

3. China and Russia

The best known example of a splinternet is China’s ‘Great Firewall’. Visitors to China who access the internet do not access the global internet. They do not see what we see online. They see the Chinese government’s so-called “safe” version of the internet. In other words, they see what Beijing wants them to see. They access the services online that Beijing wants them to access. While Chinese tech companies like TikTok often thrive in the West, almost all online services used by people within China are Chinese companies. Although the Russian government is envious of China’s example, it has been difficult for Russia to emulate due to the interconnection of Russian networks with the global internet. (here)  According to former Google CEO Eric Schmidt, China’s Great Firewall will lead to two distinct internets. “The U.S. will dominate the western internet,” he said, “and China will dominate the internet for all of Asia.” (here)

Although Russia has not achieved complete internet isolation, the government has leveraged the Sovereign Internet Law to censor sites and disrupt social networks following Russia’s invasion of Ukraine on February 24, 2022. The blocking of social media platforms such as Facebook and Twitter has been described as “particularly significant” because they provide one of the few remaining sources of information independent of the government and its state run media outsets. President Vladimir Putin has been steadily pushing to disengage Russia’s internet ecosystem from the rest of the world for years. “For Putin, this is the last 10 yards of a years-long push to lock down Russia’s information space from not only Western and foreign influence, but even for many opposition or independent elements domestically,” said Gavin Wilde, a consultant at Krebs Stamos Group. (here)

In an article titled Russia is risking the creation of a “splinternet” – and it could be irreversible published by the MIT Technology Review on March 17, 2022, James Bell cautioned that a balkanized internet would result in “a number of national or regional networks that don’t speak to one another and perhaps even operate using incompatible technologies.” (here) The result would be the end of the internet as a single global communications technology. China and Iran still use the same technology as the United States and Europe, even if they only have access to some of its services. However, “[i]f such countries set up rival governance bodies and a rival network, only the mutual agreement of all the world’s major nations could rebuild it,” Mr. Bell added. “The era of a connected world would be over.”

4. The European Parliament Study

In a study titled ‘Splinternets’: Addressing the renewed debate on internet fragmentation released by the European Parliament on July 26, 2022, the Scientific Foresight Unit warned that “[t]he unity and openness of the internet appear to be under great pressure from political, commercial and technological developments.” (here) In challenging EU member states and institutions to address the potential fragmentation of the internet into a multitude of disconnected splinternets, the study emphasized that the European Union has repeatedly committed to “promote the development” of a free and unified internet. The study outlined various strategies to promote a consistent way to address the issue: maintaining the status quo, embracing fragmentation or consistently fighting fragmentation.

The study concluded that each of the three scenarios had “significant drawbacks” from the point of view of the EU’s legal obligations generally, and fundamental rights specifically. The study therefore outlined a fourth strategy – framing the debate on internet fragmentation as a matter of fundamental rights. And that takes me to the central point of this post. The study proposed a framework that applies a proportionality test to each limitation on the unity of the internet – a test that develops what I have called an international rules-based internet order. The framework “ensures that private actors do not limit these same rights and freedoms, and promotes accountability while accepting limitations to the ability of state-actors to impose standards and manage telecommunications infrastructure as part of a modern system of checks and balances in the network society.”

Establishing the unity of the internet as a fundamental digital right requires setting it, both legally and politically, at a higher level than other laws and regulations in the hierarchy of norms. The study, however, recognized that a strategy based on the unity of the internet as derived from fundamental human rights obligations does not mean there are no limitations on that unity that cannot be justified on grounds of public interest. Although fragmentation can be perceived as a path towards internet sovereignty, and that is certainly the view of China and Russia, the study emphasized that “sovereignty would best be served by investing in the development of open source infrastructure and services that reduce dependence on foreign providers.” (pp. 55-6)

What, then, are the fundamental rights that ground the proportionality test? The unity of the internet is best conceptualized as an aspect of freedom of expression. Article 11 of the EU’s Charter of Fundamental Rights provides that freedom of expression includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (here) Article 19 of the Universal Declaration of Human Rights mirrors the EU Charter with the addition of the important element that the right includes communication of information and ideas through any media. (here) Lastly, any limitation on freedom of expression must pass the test of necessity in Article 52 of the EU Charter as applied by the European Court of Human Rights – fragmentation of the internet is lawful only if it is necessary in a democratic society. (here) Freedom of expression, then, resides in the heart of an international rules-based internet order.

5. Conclusion

In Will the Internet fragment? Sovereignty, Globalization and Cyberspace (2017) Milton Mueller classified the main threats to the unity of the internet as falling into two categories that were adopted in the European Parliament’s study. The first category, technological factors, includes issues such as net neutrality, data localization practices and content filtering. The second category, social and political factors, includes issues related to the internet’s alignment with national interests. There is no dispute that splinternets have arrived nor is there disagreement about the dangers posed by authoritarian regimes that align the internet with social and information control under the guise of national interests. An international rules-based internet order would open a new perspective for developing a consistent approach to the phenomenon of internet fragmentation and the associated threat to the rule of law. Framing the debate as a question of fundamental rights and freedoms also comes with the advantage that international human rights law is well schooled in dealing with conflicting rights and interests. It is the best foundation on which to base the ideological imperative of the liberal democracies.