Floridi on The Fight for Digital Sovereignty: What It Is, and Why It Matters, Especially for the EU

Luciano Floridi (Oxford Internet Institute; Bologna Law) has posted “The Fight for Digital Sovereignty: What It Is, and Why It Matters, Especially for the EU” on SSRN. Here is the abstract:

Digital sovereignty, and the question of who ultimately controls AI seems, at first glance, to be an issue that concerns only specialists, politicians and corporate entities. And yet the fight for who will win digital sovereignty has far-reaching societal implications. Drawing on five case studies, the paper argues that digital sovereignty affects everyone, whether digital users or not, and makes the case for a hybrid system of control which has the potential to offer full democratic legitimacy as well as innovative flexibility.

Chander on Artificial Intelligence and Trade

Anupam Chander (Georgetown University Law Center) has posted “Artificial Intelligence and Trade”
(in Big Data and Global Trade Law 115-127 (Mira Burri ed., Cambridge: Cambridge University Press 2021)) on SSRN. Here is the abstract:

Artificial Intelligence is already powering trade today. It is crossing borders, learning, making decisions, and operating cyber-physical systems. It underlies many of the services that are offered today – from customer service chatbots to customer relations software to business processes. The chapter considers AI regulation from the perspective of international trade law. It argues that foreign AI should be regulated by governments – indeed that AI must be ‘locally responsible’. The chapter refutes arguments that trade law should not apply to AI and shows how the WTO agreements might apply to AI using two hypothetical cases . The analysis reveals how the WTO agreements leave room for governments to insist on locally responsible AI, while at the same time promoting international trade powered by AI.

Chander & Sun on Sovereignty 2.0

Anupam Chander (Georgetown University Law Center) & Haochen Sun (The University of Hong Kong – Faculty of Law) have posted “Sovereignty 2.0” on SSRN. Here is the abstract:

Digital sovereignty—the exercise of control over the internet—is the ambition of the world’s leaders, from Australia to Zimbabwe, a bulwark against both foreign state and foreign corporation. Governments have resoundingly answered first-generation internet law questions of who if anyone should regulate the internet—they all will. We now confront second generation questions—not whether, but how to regulate the internet. We argue that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy’s dreaded antagonist. As international law scholar Louis Henkin taught us, sovereignty can insulate a government’s worst ills from foreign intrusion. Assertions of digital sovereignty, in particular, are often double-edged—useful both to protect citizens and to control them. Digital sovereignty can magnify the government’s powers by making legible behaviors that were previously invisible to the state. Thus, the same rule can be used to safeguard or repress–a feature that legislators across the Global North and South should anticipate by careful checks and balances.

Sitaraman on The Regulation of Foreign Platforms

Ganesh Sitaraman (Vanderbilt Law School) has posted “The Regulation of Foreign Platforms” (Stanford Law Review, Vol. 74, 2022) on SSRN. Here is the abstract:

In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken against Chinese tech platforms, but more than any others, the ban on TikTok sparked immediate outrage, confusion, and criticism. This Article offers a framework for thinking about national security restrictions on foreign tech platforms. A growing body of important scholarship connects tech platforms to “regulated industries,” “infrastructure industries,” and “public utilities” and draws on principles from them to show how the regulation of tech platforms is not only viable but also has significant precedents and pedigree. Firms in these sectors — banking, communications, transportation, and energy — have long been subject to distinct and comprehensive regulatory regimes because they raise political economy concerns that are unlike those of ordinary tradable goods and services.

In many of these sectors, there has also been a long and continuing history of legal restrictions on the foreign ownership, control, and influence of platforms — something that may be surprising, given the contours of the contemporary debate on tech platforms. “Tech neoliberals” object to placing any restrictions on foreign tech platforms because regulations would threaten the open internet. “National security technocrats” advocate for a case-by-case assessment of dangers, narrowly tailored mitigation measures, and audits to ensure compliance. Both of these dominant paradigms suffer from a variety of conceptual and practical problems, and neither take foreign tech platforms seriously as platforms, akin to platforms in other sectors.

This Article tells the history of restrictions on foreign platforms in traditional regulated industries, critiques the dominant paradigms in the debate over foreign tech platforms, and offers an alternative — platform democracy. The platform democracy approach recognizes that democratic control of platforms is important and legitimate, given their distinctive political economy. Taking lessons and strategies from the history of platform restrictions, it suggests focusing on sectors before specific firms and applying structural separations rather than complex formulae for preventing national security harms. The platform democracy approach would also require efforts at international interconnection and domestic public investments.

Schmitt on Autonomous Cyber Capabilities and the International Law of Sovereignty and Intervention

Michael N. Schmitt (University of Reading School of Law; Lieber Institute, USMA at West Point, Naval War College – Stockton Center for the Study of International Law “Autonomous Cyber Capabilities and the International Law of Sovereignty and Intervention” (96 International Law Studies 549-576 (2020)) on SSRN. Here is the abstract:

This article explores the intersection of autonomous cyber capabilities and two primary rules of international law — the respect for the sovereignty of other States and the prohibition on coercive intervention into another State’s internal or external affairs. Of all the rules of international law, these are the likeliest to be violated through employment of cyber capabilities, whether autonomous or not. This raises the question of whether a cyber operation that involves autonomous capabilities presents unique issues with respect to the application of the two rules. The article concludes that while there are numerous unsettled issues surrounding their application to cyber operations, the fact that a cyber operation employs autonomous capabilities has little legal bearing on the resolution of those issues. Rather, autonomy simply makes it more difficult, at least at times, to confidently apply the rules because of the uncertainty as to the consequences. Yet, these are dilemmas of fact, not law, and must be understood and acknowledged as such.