Navigating the Paradoxes of Digital Technology Policy: Examining the Six Major Challenges of Regulating Cyberspace
By Yasin Tokat. Originally published by The Digital Constitutionalist on its website.
The advancement of technology is progressing at an exponential rate as humanity continues to uncover new levels of computational capability each year. The emergence of quantum computers, high-speed wireless internet, and advanced AI are examples of technological breakthroughs with immense potential for the upcoming years. These advancements have led to complex situations that traditional governments may struggle to manage effectively on their own. Thus, these cutting-edge technologies offer both new opportunities and new hardships for governments. While these technologies have the potential to enhance human civilization to the next level, they also have the potential to create significant vulnerabilities if they are utilized in malicious, oppressive, or undemocratic ways. In order to mitigate the potential negative effects of digital technologies, some form of regulatory action is necessary. This is why it is crucial to regulate digital platforms. However, finding the right balance is a delicate task that presents several major challenges. While the right regulations can make cyberspace a more secure and free place for users, too many rules can make it harder for both businesses and the public to operate on digital platforms. As a result, the process of formulating appropriate regulations for digital technologies is a sensitive issue that calls for a nuanced approach as well as an in-depth comprehension of the complexity of the highly dynamic digital environment.
This post will examine six fundamental, complex, and overarching challenges that hinder the development of effective digital laws. We will not focus on specific challenges within the narrow domains of data security and cybersecurity that may be targeted and handled successfully by competent policymaking. Instead, the focus will be directed toward the issues that have the potential to render policymaking efforts ambiguous or even detrimental. Among those issues, the first one is mainly about the states being consumers of technology products and services and not being the owners nor the main drivers of those innovations. The second problem is the independence of digital space from the physical territory of the states. The third point is that non-democratic states can use their power to modify how technology is regulated as a way to censor and spy on their citizens. The fourth issue is about the emergence of digital market monopolies in the hands of big tech by utilizing or bypassing regulatory instruments through complex corporate legal mechanisms. The fifth issue is the overreach of the state’s policy objectives. The sixth issue is the inequality among states in terms of technical ability and access to digital products. The logic behind the selection of these issues stems from the enigmatic nature of digital policymaking. Normally, there are a variety of distinct issues with a limited scope that can be handled by the formulation of suitable policies. These challenges include the lack of standardization, interoperability issues, balancing the economic benefits with societal disadvantages, the protection against misinformation, certain cybersecurity threats, and the need to secure copyrights, personal information, and sensitive data. These difficulties are distinct and limited in scope and they stand as the raison d’être for the creation of appropriate laws and regulations as countermeasures.
On the other hand, the aforementioned six issues are paradoxical in nature and create challenges for the creation of highly effective policies. Developing adequate regulations in response to those challenges is a task fraught with difficulty due to the complexity, simultaneity, and heterogeneity of the components that make up the digital world. While conventional approaches to policymaking can be highly effective in many circumstances, they may not be optimal when dealing with the emerging paradoxes that have evolved with the advent of the digital era. Thus, the following concerns center on the inadequacy of policy approaches to perplexing characteristics of digital technology, rather than analyzing policy objectives towards isolated and limited issues in the digital world. Furthermore, the below-outlined issues are especially challenging since they have deep roots in other complicated domains.
1- States as the Consumer of Technology Products and Services
The fundamental issue in establishing digital government is where states stand in the technology industry. Although states can facilitate and promote an innovative environment for scientific and industrial achievements, they are not the primary innovative actors in their own right. Nonetheless, they are rather the consumers of technology products and services produced by private corporations. Information communication technologies were mainly developed by major tech corporations, private institutions, and platform providers. States typically only try to keep up with technological advancements after they are widely embraced by society. Additionally, politicians, public servants, policymakers, and regulators generally lack the technical know-how necessary to examine such intricate systems made up of billions of interconnected devices. A service utilized by millions of people could be ruined by a decision made by a small group of bureaucrats. The innovative and inclusive qualities of technology might disappear if states possess such regulatory authority but so little technical know-how. This is a significant issue for advancement and balance in the digital world.
2- Digital Space’s Independence From Physical State Territories
Aside from the inadequacy of state competence to accurately oversee internet technologies, another challenge arises from the nature of information technology itself. The digital environment is established within the web of connected devices through the fiber optic cables that carry data packages. This complex network connects billions of devices such as desktops, laptops, smartphones, the Internet of Things (IoT), and more. The sphere of cyberspace can reach as far as this network of interconnected devices allows. Similarly, the extent of this digital realm can be constrained by the network’s limitations. As a result, governing this global network is immensely challenging for a single state. Normally, states have jurisdiction over the territories they control. Within those territories, the laws and regulations remain in effect. Because cyberspace is global and devoid of politically devised borders, it is exceedingly problematic for a particular country to entirely regulate all aspects of it.
3- The Undemocratic States and Possibility of Violations of Fundamental Rights
In the age of information, technology is an integral part of daily life, and access to information is now as simple as reaching into your pocket and pulling out a smartphone that is capable of tasks such as online banking, teleconferencing, and remote work. Integrating technology into everyday activities generates vulnerabilities that need to be managed. Powerful states can enact laws and regulations to regulate various aspects of the digital ecosystem democratically and transparently. However, fully democratic states are in the minority in a world where there are numerous countries with flawed democracies, autocracies, dictatorships, and monarchies. How can we expect an anti-democratic state to safeguard its citizens’ fundamental rights and freedoms, such as freedom of expression, freedom of political opinion, and freedom to exchange information, if such authoritarian states lead in regulatory actions designed to limit the essential features of information and communication technologies? All anti-democracy and disruptive governmental actions would be amplified in the digital world and would be felt by the people of that land. Considerable free speech violations, censorship, political dissident detention, unjust government surveillance, social media control, and the dissemination of fake news, and propaganda would follow. In the end, “who will guard the guardians themselves?”. More importantly, if non-democratic states obtain the techniques to curb the internet, who can intervene in their repressive affairs as they are still a sovereign power?
4- Monopolizing the Digital Market
The ability of the major technology companies to circumvent the rules established by the state is another unforeseen effect of the regulatory mechanisms. Due to their substantial corporate legal power, big internet corporations have the potential to bypass the regulations more easily than their smaller counterparts, who may be the only ones to lose in the competition due to their relative disadvantage in adapting to the regulatory procedures. Consequently, this creates an ecosystem where only the biggest and strongest can survive. Furthermore, while the big IT firms increase their expertise, create more patents, and boost their financial venues, the barrier to entry for small digital startups and enterprises can get higher if the states cannot foresee the end result of their policies. Without a holistic understanding of the underlying IT business landscape, the bare weight of the regulations will be loaded on the shoulders of the small digital platforms. Such firms will subsequently be further excluded from the digital market, strengthening the dominance of the major IT giants. Without proper consideration for the effects of digital constitutions on the market, the monopolization of major tech companies could undermine the emergence of an innovative and inclusive IT sector.
5- State Overreach
The current state of internet technology is a remarkable accomplishment, with its complexity and connectivity capacity. The engagement of the state in one part of such a complex and advanced network might have unintended consequences in other parts of the digital ecosystem. Even in fully functional democracies, hasty legal and regulatory procedures can result in policy overreach and stifle the information technology sector’s capacity to function optimally. In a world of constant technological advancement, the majority of platforms have only been around for a decade or two. This makes it very challenging to fine-tune the level of control that is needed. As a further point, states have, throughout the course of history, adapted and established suitable official processes to control various parts of their dominion. The velocity at which technology advances is phenomenal, especially when compared to the slow progress of government practices. As a result, there is a misalignment between how the government functions and how technology evolves. Consequently, applying traditional state regulatory mechanisms to the technological process may result in policy overreach on the part of the state.
6- The Inequality Among States Concerning Access to Technology
States are different from each other in many ways, such as population size, political regime, cultural influence, economic power, and technical capacities. Each country can use such advantages to enhance its cyber capabilities from its own standpoint and agenda. Strong economies are able to provide robust IT infrastructure, raise the standard of living, and make access to technological products and services easy for their citizens. On the other hand, private enterprises can also position themselves better in strong countries to produce and offer better technological goods and services. Still, in poorer parts of the world, even basic human needs like having clean water to drink, a safe place to live, and enough food to live a healthy life are difficult to fulfill. Therefore, it would be odd to evaluate the speed and quality of internet connectivity in a country where people’s most basic necessities are not satisfied. As a result, there is no technical capacity match among the states. Even the combined collective technical capacity of most poor African countries is no match for the collective technological might of the United States. Even if there are no borders and no restrictions on the internet, people will still be affected by the resources in their own country. The solution to this issue goes well beyond digitalization and regulation. There is a need for a combination of the right conditions for a country to have a better position in the IT sector.
Conclusion
Given the problems above, it is apparent that technology regulation is a complicated and sensitive subject that needs special consideration and foresight. To keep up with fast-emerging technology, appropriate human resources, multidisciplinary cooperation, public-private partnerships, and a high degree of flexibility are required. Also, to deal with digital problems that go beyond national borders in an effective way, we need strong digital governance and a digital constitution. To do this, there needs to be international cooperation and the creation of channels for dialogue and knowledge sharing in the face of global digital issues. As these problems involve the economic and social capabilities of the governments, the issue goes well beyond the technical aspect. Therefore, the problems might not be solved until an increasing number of countries implement significant reforms to their own economic and social systems. There is no magic bullet that can solve these issues overnight. Tackling these issues depends on our collective power and willingness.
Consequently, the next generation of policymakers should be well-versed in the knowledge and skills necessary to evaluate the complex interconnections across technological platforms that go beyond national borders. An important part of this is comprehending how digital technology has changed many fields, such as economics, sociology, markets, culture, and political institutions. Also, if we want to deal with the problems successfully, we need a plan that puts more emphasis on collaboration and analysis than on making quick policy decisions. Policymakers need to be able to look at the economic and social benefits of digital technology and find a way to protect people’s rights while keeping the country safe. In addition to this, they should be able to take into account the positive effects that digital technology has on the economy and how this can be extended to wider parts of the world.
