2012 - A ten-point manifesto for a Digital European Citizenship - Martin Gak
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A ten-point manifesto for a Digital European Citizenship
How the EU can wrest control of the internet from big tech, and transform the digital sphere into a force for promoting its values
Social media platforms and digital information tools are the closest thing that Europe has to a true, transnational, multilingual European public sphere: the proverbial European agora. The now almost two years of life in a global health crisis has greatly accelerated the migration of our lives to virtual environments, moving workers from European commercial real estate to American digital workspaces, shoppers from European city stores to American and, to a lesser degree, Chinese digital retailers, and forcing masses of families, friends and lovers to replace embraces with emojis stored in American or Chinese servers.
These tech companies have often placed themselves beyond or above the law, defining for themselves their own rights and obligations. By corralling the digital public sphere and exploiting the often uninformed consent of the user, they have managed to replace the law with companies’ terms of service, over which national and regional authorities and agencies hardly have been able to exert control.
In a recent paper, ‘“A State in the disguise of a Merchant”: Tech Leviathans and the rule of law’, the legal scholar Christian D’Cunha has persuasively shown that large tech companies have taken on a host of functions that are the purview of the state and that the state has not only been incapable of presenting sufficient resistance but has often become complicit in the privatisation of governance and the erosion of the rule of law:
“Their increasing indispensability to the performance of certain public functions rightfully pertaining to the state, and the tendency towards laws that legitimise their power by giving them special responsibilities but without the means for enforcement, seem to allow them to act with impunity, as if they are above the law… Control over the digital environment and infrastructure gives the big tech companies power to enact business standards, and to govern the public sphere, consumers and workers… the big platforms are recruited to tackle copyright violations, terrorism and child abuse. Lucrative contracts are offered by law enforcement to deploy surveillance technology (from ‘smart’ door bells to social media trackers) developed for commercial purposes…”
This effectively means that the rule of European law has lost sovereign power to the rules defined by tech companies’ terms of service. To a large degree, this means that EU citizens lead their lives as second-class digital citizens of these digital states, while the EU becomes a sort of digital province subject to rules established in remote jurisdictions over which it has little or no influence and with which it has no possibility of competing.
What the hour demands is both political courage and commitment to develop European digital capabilities that can protect and guarantee the stability of the European project
Brussels has played for too long with the idea that this digital backsliding of democracy can be addressed by way of regulation. But if anything was learned in the opening years of the second half of the 20th century, it must have been that legal provisions, however well intentioned, cannot restitute democracy. One cannot regulate one’s way out of tyranny. The EU needs a clear-headed set of policy priorities with clear and achievable targets. But it also needs a Bill of Digital Rights capable of establishing the political and ethical basis on which jurisprudence might be later built.
The power of tech
Never in history have we seen instruments capable of educating citizens, building communities of care across sovereignties, languages and cultural divides, assuaging economic cleavages and promoting civil discourse even across conflict lines, as the internet has provided. But it is precisely this unparalleled power that makes these instruments the most formidable foes of freedom, democracy, equality, human rights, human dignity, the rule of law and our EU fundamental values.
Indeed, these tools have shown the most tremendous potential in organising some of the most egregious assaults on human rights that the world has seen since the early 20th century, in Myanmar, the Assam region of India, Ethiopia and the Philippines. No set of political instruments has had such enormous power in aiding and abetting the backslide of liberal democracies and eroding their foundations.
As Canadian lawmaker Charlie Angus said at a hearing organised by the British parliament, to which Mark Zuckerberg was invited but declined to attend: “We’ve never seen anything quite like Facebook, where, while we were playing on our phones and apps, our democratic institutions… seem to have been upended by frat-boy billionaires from California.”
While declarations of good intentions abound, it is not enough to say that the rule of law and democratic values ought to be defended. Even if necessary, a well-coordinated set of legal manoeuvres is no longer sufficient to protect the political foundations that have already been damaged. (What better and more alarming example of this is needed than the digital construction of Brexit?)
Concrete actions are required. What the hour demands is both political courage and commitment to develop European digital capabilities that can protect and guarantee the stability of the European project which, for anyone who dares forget, is the response and the rampart that our societies built to preclude the kind of brutality and the cost in human lives that we paid in the early 20th century. To this avail, I would like to propose ten concrete agenda items.
1.Digital assets including social media must be regulated as ‘critical infrastructure’
The idea is not to merely treat digital tools and platforms as public utilities so as to recognise their importance. These digital platforms – and not just the internet itself – are “essential to maintain vital societal functions”. And their “damage or destruction may have negative consequences for the security of the EU and the well-being of its citizens”. The moment that this is done, all these digital assets must be vigorously regulated under the European Programme for Critical Infrastructure Protection. The issue is not merely the protection of digital assets (as laid out in the NIS2 directive), but the protection of the integrity of the EU project, its security, its societal functions and the well-being of its citizens.
2.The EU must establish and protect the integrity of European digital citizenship
The core of all terms of services for any company operating on EU digital territory must be EU fundamental rights and fundamental values. Nothing less is acceptable when one understands European digital space as European digital territory. Rights, dignity, freedom and equality before the law are the fundamental values of the regulation of the digital ecosystem. Citizens’ data constitutes digital identity and it requires the further buttressing of the General Data Protection Regulation (GDPR). This would be best done by developing a European Bill of Digital Rights, which translates the fundamental European values and fundamental rights and obligations established in EU fundamental law. An open but well-enforced European digital space can be the de facto regulatory framework for the whole of the internet.
3.Police corporate actors as subsidiary governance agents
Digital democracy means the citizens choose the rules by which they are governed online. European digital citizenship ought to mean the online enforcement of all rights and obligations contemplated in EU law. Not only individual users but, more importantly, companies must be made to comply with EU law. But it is insufficient to regulate companies (as the GDPR, the Digital Markets Act and the Digital Services Act, among others, do) if there is no systematic enforcement mechanism. Penalties have negligible financial effects on the overall operations of companies and can be perennially delayed in legal manoeuvring.
4.Algorithms deployed to rule over the information and social interactions of EU citizens ought to be laden with EU fundamental values
The current algorithms that structure the large digital platforms put a premium on a market model of clientelism that exacerbates bubbles at all levels of public and private activity. The current system is based on learning what users like and then serving them supersized portions. The European Union’s fundamental architecture, development and function are based on the recognition of the catastrophic danger that bowing to citizens’ raw ideological appetites and aversions can bring about. Much of the EU project has consisted of rebuilding the diversity that smouldered in the ashes of post-war Europe and seeks – if imperfectly – to be its guarantor. The challenges posed by climate change likewise call for a fundamentally different approach to consumption. If the European Green Deal is to be so tightly tied to digitalisation as the European Commission suggests, the algorithmic infrastructure of the major platforms cannot be geared towards increasing the scale of environmentally degrading activity. An algorithmic regime is the most fundamental way to inculcate EU values in the digital public sphere. This means not merely demanding algorithmic transparency but developing technical strategies to impose and enforce strict parameters for non-EU companies operating in the EU.
5.All processing of data harvested on EU soil ought to take place in EU-located processors and servers
In the wake of an American company’s betrayal of the Safe Harbour Agreement wherein EU citizens’ data was turned over to American authorities without consent or forewarning and the double rebuke of the Privacy Shield by the European Court of Justice (ECJ), which the court saw as an insufficient mechanism to protect European data, the EU should demand that all data processing happens on the physical territory over which it has direct sovereignty and legal control. The GDPR should not be abandoned but beefed up, and the EU must invest in the development of native servers to guarantee the local sequestration of data harvested in the EU.
6.The EU must develop digital capabilities and capacities
Ideas of EU digital development are usually met with the claim that the EU simply does not have the know-how, the resources or the technical capabilities to establish viable competitors to established tech firms. While this is only partially true, it is essential for the EU to build a three-decade plan for the industrial-scale promotion of its own digital tools, including hardware and software, technical capacity, financing mechanisms, legal frameworks, and so on.
7.Force interoperability and migration simplification
Demanding that platforms standardise their data packages and allow full interoperability with emerging platforms and competitors would be the most effective way to forestall monopolistic practices and guarantee a safe space for an EU digital industry to bloom. In this regard, the Digital Service Act simply does not go far enough. Much like we would never accept a phone network denying communication with users on other networks, the EU cannot continue to allow companies like Facebook or Twitter to hold their users hostage by retaining data such as posting histories and networks of contacts to preserve their market dominance. Companies have taken the position that prohibitive exit costs are a safeguard to foreclose competition. To this end, digital migration between platforms must be greatly simplified. I propose a one-click migration mechanism, which should be required of all digital companies operating in the EU. This would be the most important tool to combat prohibitive exit costs. This ought to be accompanied by regulation giving the power to the user to decide what happens to the entirety of their data set, social networks, professional assets and curated content residing on the platforms.
8.A blockchain moratorium
A complete moratorium should be established on ledger (“Blockchain”) technology. While ledger technology is most often discussed as a solution to the threat of deepfakes, the massive growth and emergence of deepfakes – that is the fabrication of evidence that is visually indistinguishable from actual occurrences – actually amounts to one of the most powerful arguments against the blockchain type of system. Ledger technology – sitting at the core of the Chinese social credit system – is bound to become an independent arbiter of truth in the adjudication of all sorts of matters, from hiring to financial profiling to criminal prosecution. The technology is not impervious to hacking and it is particularly dangerous in the face of powerful international actors with the wherewithal to do so. Presented as a solution to diminishing trust, ledger technology, by contrast, is bound to become a gargantuan kompromat, putting all areas of European life at risk. The internet ought not to become the arbiter of truth. Neither states nor private operators should be building kompromats in a democracy.
9.Digital law enforcement ought to be the exclusive purview of the state and EU
They must maintain the “monopoly on the legitimate use of force”, be this force physical or symbolic. The EU must treat the space of digital platforms as sovereign EU territory and deploy the full force of its law through its own law enforcement machinery. The outsourcing of law enforcement operations should be strictly forbidden. Reestablishing EU digital sovereignty also means taking responsibility for securing its digital territory.
10.Create European social media platforms to build and promote an EU digital public sphere
Social media platforms have shown the most profound potential in the construction of a public sphere. The development and promotion of an EU public sphere would be a major milestone in the development of a future Europe based on transnational participation and interaction. However, without putting an end to the monopolistic practices of the tech giants, EU projects have no chance at all.
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