Big data and digital sovereignty

12. Mai 2022

On the one hand, big data challenges the concept of state sovereignty because it is intangible and spreads across state borders. On the other, big data is associated with a new notion of sovereignty: digital sovereignty. In this section, I will first present the two meanings of digital sovereignty involving big data, which are a state’s autonomy in regulation and protection of its citizens’ data and the users’ self-determination in the use of their personal data. Then, I will show that the two meanings conflict with each other in the case of big data because the latter are a good on which both individuals and states aim to exercise their autonomy.

Big data flows from one country to another and spreads in a constellation of digital networks without state barriers: it is gathered in one country and can be used in others. Because of this dispersion, as well as the global interdependence of states, big data challenges the concept of state sovereignty, which always involves a circumscribed physical territory.

Sovereignty is a concept that we inherited from early modern Europe. Its primary meaning is the supreme authority within a territory that is attributed to a state. The authority of a holder of sovereignty is not held through coercion. Instead, it is legitimate because derived from an acknowledged source of legitimisation such as natural or divine law, a constitution, or international law (Philpott 2020). The authority of a holder of sovereignty is supreme in that it is greater than that of other powers in the territory and independent vis-à-vis other states (Philpott 2020; Pohle and Thiel 2020). Territoriality is thus a fundamental element of sovereignty, which is authoritative only within a precisely defined geographical space (Philpott 2020). This characteristic of sovereignty explains why big data is a hindrance to the sovereignty of states. It belongs to a space—cyberspace—that is not physical and thus cannot be limited to a territory, even though its collection, storage, sharing, and transmission is based on physical components such as hardware. The intangibility of big data challenges traditional international law on jurisdiction, which is founded on state sovereignty and presupposes that people and things are located in a knowable and finite location (Eichensehr 2016, pp. 145–146).

Although big data challenges the traditional concept of sovereignty, it has been progressively associated with a notion of sovereignty applied to the digital realm: digital sovereignty. Here, with “digital,” I broadly mean technologies, infrastructures, data, and content based on electronic computing techniques (Peters 2016). As shown by Couture and Toupin, digital sovereignty has been conceptualised in different ways by different types of actors (Couture and Toupin 2019, p. 2306). In contemporary political discourse, digital sovereignty incorporates two main concepts, each involving big data. The first concept is based on the idea that a state is autonomous and thus should make independent decisions about technology innovation and digital infrastructure, guarantee the security of such infrastructure, and be independent of foreign technology and infrastructure (Pohle and Thiel 2020, pp. 8, 10). This idea of digital sovereignty supports regulation of the Internet at the national level, as well as data localisation (limiting data storage, movement, and processing to specific areas) (Chander and Le 2014; Hill 2014). For instance, in Europe, Schengen Routing (i.e., routing Internet traffic among hosts that are in the Schengen area) was put forth as a countermeasure against monitoring activities of some intelligence agencies. In this way, Internet traffic does not leave the borders of the Schengen Agreement signatories and cannot be wiretapped as easily by intelligence agencies outside the Schengen area (Dönni et al. 2015). The other side of the coin of the concept of digital sovereignty as the possession of independent and secure national infrastructures is that a state or system of states can intrude into the private life of citizens by accessing their personal data through intelligence actors and law-enforcement agencies and justifying the intrusion as a matter of security (Cavelty and Egloff 2019; Möllers 2021). For instance, the Schengen Internet traffic is still vulnerable to wiretapping by intelligence agencies located in the Schengen area.

The second and more recent concept of digital sovereignty focuses on users’ autonomy and self-determination in the digital realm. Self-determination in the digital realm is defined as the ability to make decisions about the use of one’s personal data, digital platforms, and devices in an autonomous, competent, and informed way (Pohle and Thiel 2020, p. 11). Several measures have been proposed to enhance users’ sovereignty over their data; for instance, programmes that provide users with the skills to act in the digital space (i.e., digital literacy) and encourage them to reflect critically on digital technologies. Other proposals for enhancing users’ digital sovereignty include demanding that tech companies encrypt users’ data and become more transparent about their use of users’ data.

It is noteworthy that the two concepts of digital sovereignty potentially conflict with each other; this tension is evident in the case of big data. On the one hand, each state aims to exercise sovereignty over the digital realm that is inscribable in its territory and thus aims to protect its citizens’ big data from, for instance, foreign surveillance. On the other hand, citizens’ digital sovereignty over their own big data, as well as the privacy and security of such data, is threatened by the possibility that the state can access it.

In conclusion, big data has been associated with a specific meaning of sovereignty, which is digital sovereignty. Big data is a good over which both states and individuals aim to exercise their sovereignty in the digital realm. Both individuals and states aim to act autonomously in the management of such data, and this can generate conflicts between the state and individuals. As big data is intangible and spreads in networks that cross state borders, it cannot be easily regulated in ways that are based on the sovereignty of the state over a finite and knowable physical space. Big data’s intangible nature transcends state regulations. Therefore, the collection, storage, sharing, and transmission of big data should be addressed through coordination and cooperation among states (Eichensehr 2014, p. 320).

Recommendations

As big data is intangible, it cannot be regulated in ways that are based on the sovereignty of the state over a finite physical space. Therefore, states should coordinate and cooperate with each other to regulate the collection, storage, sharing, and transmission of big data. In doing so, the state’s aim to protect the security of its digital infrastructure has to be weighed against its citizens’ autonomy in order to avoid unjustified intrusions of the state into its citizens’ private life.