Abstract
While many have asked whether the law can keep up with new technologies, we may need to ask bigger questions, lest in ‘updating’ we redraw the circuits of inequitable power relations. The fundamental ideas of autonomy and sovereignty that sit at the heart of the circuitry of platform and technological regulation must be reconsidered. How can we rewire this system? Examining the ways that relational thinking has been employed normatively, particularly in areas of communications law, this article suggests that we can draw on relational thinking, understood through critical theories that deal with historical structural relations, for guidance on how to rewire our legal operating system. Critical theories can infuse a relational approach to understanding communication law, which can be drawn on to rewire our legal operating system.
Keywords
Introduction
Not long ago, I received an email from the IT department at McMaster University, where I work. The email said that there was a Windows security issue identified as critical by Microsoft. It recommended running Windows update at the nearest available opportunity. I ran the update. It did not work. Soon after, Microsoft announced that my operating system (OS) would no longer be supported. This raised several questions: did I need an upgrade? Could my OS be upgraded? Or did I need a whole new machine?
Today, we ask analogous questions about the regulation of social media platforms. The past years have brought various regulatory crises: the spread of disinformation in the context of a global pandemic and elections culminating in the storming of the US Congress, the proliferation of white supremacist groups and online hate, and the dramatic failures of privacy law and mechanisms for the protection of personal information. In 2018, the Cambridge Analytica scandal exposed the ways in which 87 million Facebook users’ data were shared and used without users’ consent, partly due to the design of the platform itself. In platform governance and regulation, a security issue has been identified as critical. On multiple levels, and on multiple platforms, an upgrade is needed.
Beyond changes to platform governance, our mainstream legal traditions – our legal operating systems – may require an upgrade. Legal systems can be viewed as operating systems or platforms in the sense that they provide conceptual and institutional infrastructures on which social and economic institutions are built. 1 Recent events call on us to ask: are our civil and common law legal traditions robust platforms for confronting and mitigating the power of digital platforms? Can they do what is needed to ensure that informed electorates exist? Can our legal operating systems be upgraded? Are we ‘updating to remain the same’ (Chun, 2016)?
In this article, I note that our legal OS, specifically communication law, has been a platform for imperialism, and a platform for platform imperialism. While many have asked whether the law can keep up with new technologies, we may need to ask bigger questions. Beyond keeping up, the fundamental ideas constituting the circuitry of platform and technological regulation need to be reconsidered. How can we rewire this system? I suggest that we must draw on feminist relational autonomy, historical institutionalism and a full range of critical theories, including critical race theory, decolonial theory and critical political economy, for guidance on how to rewire our legal OS. These can infuse a relational approach to understanding communication law, which can be drawn on to rewire our legal OS.
Platform imperialism refers to the ways that digital platforms, and the legal operating systems that they are built upon, are built within and on historical international power structures (Jin, 2013, 2015) It is important to foreground the relations built into these power structures; individuals, nation states, digital platforms and legal operating systems are powered by, built in and arise out of the relationships structured by power that critical theories point to, such as the structured relations of labour, neocolonialism, racialization and gender (Nedelsky, 2011). These relationships are path dependent and, from time to time, reach critical junctures (Bannerman and Haggart, 2015). Such relations are built into platforms and operating systems (I use these terms virtually interchangeably to mean a system that provides the infrastructure or basic tools upon which other things are built). This includes operating systems like Windows or macOS, digital platforms, such as Google or Facebook, as well as law and legal institutions that provide the legal infrastructures for businesses and our lives.
In the first section, I discuss the ways that communications law and policy have historically and internationally formed key parts of the platform on which platform imperialism is built. I discuss the roles of path dependency and critical junctures in this history, followed by a discussion of the concept of relational autonomy, drawing on the work of Nedelsky (2011) and others. I then extend the concept of relational autonomy to discuss relational sovereignty. I contrast traditional concepts of sovereignty with relational concepts of sovereignty through a discussion of the Government of Canada’s ‘cloud first’ strategy. In the last section, I examine the ways that relational thinking has been employed normatively, arguing that a normative concept of relational sovereignty must go beyond tweaking the speech regulations, intellectual property (IP) laws, defamation laws and privacy laws that form part of the platform of empire. I conclude that, if we are to avoid continuing the project of empire in yet another new form, states and international institutions should be concerned with making invisible relations visible; prioritizing the voices of and empowering groups who have often been invisible and repairing debilitating relations of extreme inequity. This ‘upgrade’ requires restructuring to redraw the circuitry of the historical unequal relations that communications and media law have sustained.
Platform imperialism
Platform imperialism is a term developed, in a large part, by Jin (2013, 2015) at Simon Fraser University. There are a growing number of related concepts, namely, information imperialism, platform empire, data colonialism and techno-imperialism (Couldry and Mejias, 2019a, 2019b; McElroy, 2019; Madianou, 2019). Gillespie (2010) points out that platforms portray themselves as ‘progressive egalitarian arrangements’ or places where anyone can stand and have their voices heard. However, the reality is, as Jin (2013: 161) notes, that ‘a few US-based platforms dominate the global order’ which is far ‘from a globalization model in which power is infinitely dispersed’. The social aspect of platforms obscures the underlying economic and political relations that they are built on and extend (Jin, 2013: 161). In this way, platforms alter or retrench international structures of production and labour, security, finance and knowledge (Bannerman and Orasch, 2019). This occurs under a globalized model of largely private governance with a history in which a few states, and a few platforms, are dominant (Jin, 2015).
The civil and common law legal systems, now transplanted and translated throughout the world, have in many ways brought prosperity and freedoms to many, including some degree of freedom of expression. At the same time, communications law, including speech regulation, IP law, defamation law and privacy law have provided the foundations of continuing unequal relations in communicative power.
Colonial tensions over freedom of expression and the press have a long history. The United Nations Educational, Scientific and Cultural Organization (UNESCO) MacBride Report in 1980 argued that, internationally, freedom of expression and the free flow of information did not guarantee that everyone could express themselves or access media equally; in fact, the free flow of information strengthened dominant voices (Hamelink and Hoffmann, 2008; MacBride, 1980). Likewise, critical race theorists have noted that freedom of speech often protects dominant voices while failing to protect racialized and marginalized voices or to ensure those voices are also free to speak (Delgado and Stefancic, 1991, 2014). These systems of speech regulation have been foundational to platform imperialism; the free flow doctrine is now a crucial plank in safeguarding the power of American platforms abroad; aimed at preventing governments from interfering in the infrastructure, regulation or movement of content on the Internet, the free flow doctrine preserves the dominant position of American platforms, content and regulatory norms on the Internet (Butt, 2016; Jin, 2013).
Intellectual property law was internationalized to facilitate the maintenance and international expansion of the power and markets of publishers and other technology industries in dominant states (Chang, 2007; Story, 2012, 2017). Critical race IP theorists point out that IP has failed to equally protect the works of racialized and Indigenous peoples, thus permitting the appropriation and exploitation of the markets and knowledge of the periphery (Vats and Keller, 2018). The global IP system, as Jin (2015) notes, is also a foundation stone of platform imperialism, protecting platforms’ core technologies through patent law. Patent, copyright and trademark law are key tools in platforms’ battles for global supremacy; international IP law enables the international protection and control of platforms’ core technologies, code and brand identities.
Even defamation law, as Eko (2016) notes, played a role in colonialism, as criminal defamation law was used by colonial administrations in British colonies to silence criticism of colonialism, such as shuffling, sighing or rolling one’s eyes. Eko (2016: 23) notes that a broad definition of slander was used in some places to punish expressions of dissent, including, ‘foot-dragging, shuffling, foot-humping, whistling, sighing, coughing, clearing one’s throat, rolling one’s eyes, spitting, laughing, or giggling, drumming, dancing, standing, sitting, wearing African masks, and masquerades without authorization at the wrong time, in the wrong place, in the right location, at the wrong time, or in the wrong manner.’
If defamation law played a role in colonialism, it also has a role in platform imperialism. Platforms may exponentially increase the harms of defamation, profiting, in fact, from racist and inflammatory speech, while resisting calls to take responsibility to mitigate those harms, failing particularly to do so in foreign countries and languages. As Cohen (2017: 167) puts it, ‘some platforms have been silent partners in fostering the hate and harassment that they officially disdain’.
Privacy law is also a key site of inequity; the uneven distribution of privacy goes hand-in-hand with racialized, colonial and postcolonial distributions of labour, in which, on an international scale, a privileged core is now granted privacy and rights that are unavailable to labourers in the world periphery, from which wealth is extracted (Arora, 2019). As Arora notes, internally, regions with low privacy standards are left out of privacy protections. This leaves ‘the techno-oligarchs such as Facebook, Twitter, Amazon, and Google’ to colonize the data of much of the world (Arora, 2019: 268).
Core areas of communication law have been central to the creation and extension of international systems of dominance. They continue to be important planks in the extension of platform imperialism.
Path dependency and critical junctures
Though it may sometimes seem as if we are going through a period of wild and unconstrained change, we are actually forging a path of inequality on a trail that is quite well worn. Historical institutionalism gives us two key concepts: path dependency and critical juncture (Bannerman and Haggart, 2015). Path dependency is the idea that change is constrained by the present institutional context, which embodies power relations in society. We can ask: is our current legal OS so path dependent that upgrading is no longer possible? Is it embedded in a set of relations and connections from which it cannot extract itself? Rather than confronting crisis, does it ‘update to remain the same?’ (Chun, 2016).
Alternatively, are we at a critical juncture – a critical moment where change is possible? Change is rooted in institutions and in present conflicts, contradictions, pressures and tensions that actors exploit, harness and utilize in ways that produce change (Bannerman and Haggart, 2015).
How can we make a critical change? Law can be liberating, but it is also appropriated by states and multinational platforms that have international reach. Often, as Giblin and Weatherall (2017) have observed in their work on copyright, international institutions, such as international copyright law, dig us further and further into a path that we cannot get off of – a path that constrains legal innovation and a more just order (see also Bannerman, 2016). The entrenchment of law in slow-moving jurisprudence, legislation and treaties that can be difficult or impossible to renegotiate, in the context of economic, political and government alignments, entrenches legal path dependency. Can we – and how can we – arrive at a juncture for critical change?
The problems of white supremacist content linked to the storming of the US Capitol; false, hateful and violent content circulating online in digital enclaves (Lim, 2017); the Cambridge Analytica scandal in 2018, the failures of Facebook to protect personal information and recent revelations brought by whistleblower Frances Haugen, seem to have brought us to what many see as a critical juncture. At this juncture, when we ask whether governments can keep up with platforms and technologies, our question arises in two important contexts: first, it arises in the context of the decline of government power and the rise of private governance – what Strange (1996) calls the ‘retreat of the state’. Second, our question arises in the context of the growth of powerful multinational platforms. In fact, Cohen (2017: 200) suggests that we are faced with a new ‘platform sovereign’; she suggests that platforms have territories, populations and the power to govern them: Platform territories are not contiguous physical spaces but rather are defined using protocols, data flows, and algorithms. Both technically and experientially, however, they are clearly demarcated spaces with virtual borders that platforms guard vigilantly. […] Dominant platforms like Facebook, Google, and Apple have user populations that number in the billions, vastly eclipsing the populations of all but the largest nation states.
Platforms govern those territories and populations with ‘processes that resemble coordinated lawmaking’, as ‘they develop and share policy guidelines and construct regulatory institutions and practices’ (Cohen, 2017: 202; see also MacKinnon, 2013).
Government and political parties rely on platforms to conduct election campaigns, for cloud storage, for live streaming, public consultations and tech support. Huge government efforts go in to wooing platforms to set up domestic headquarters and offices around the world, to attract them to invest in domestic artificial intelligence industries (in the case of Facebook and Google) and to pursue platforms’ investments in creative industries (in the case of Netflix). Platforms threaten to withdraw or cancel investment if the regulatory environment shifts unfavourably (Tasker, 2018). Security services and policing are becoming increasingly dependent on platforms which are also platforms for mass surveillance. As Pinto (2018: 19) notes, ‘entire nations and their industries are fully dependent on critical infrastructure, software, and hardware provided by a handful of companies’.
Not only is individual autonomy under threat due to the unauthorized use of personal information; state sovereignty is under threat as well. Similar to the fears of lost sovereignty due to globalization that Brown (2010) described in Walled States, there are concerns today that sovereignty no longer exists, as the power of states to regulate platforms is limited (Cohen, 2017). Commentators suggest that cultural sovereignty, sovereignty over broadcasting systems, digital sovereignty and data sovereignty are all threatened (Bartholomeusz, 2019; Starowicz, 2019). Furthermore, there are concerns that the quest to renew sovereignty could entail the undesirable building of walls and the fragmentation of the Internet. 2
There are two responses to this reality; we can patch and manage the risks while using this opportunity to further economic and state objectives. Or we can do something radical; we can rethink, redraw and rewrite the code, the logic and theories of platform regulation – we can get a new machine. At the same time, there are serious doubts about whether governments are capable of going a different direction, or building the infrastructure needed to create a new machine.
Relational autonomy
Finding technical solutions (technological solutionism), or even legal solutions (legal solutionism) is not what is crucially needed (Kitchin, 2014: 181). Rather, relations are critical. We must foreground the ways that law and technology set up relationships. Structural and hierarchical relationships – the relationships that make us who we are – turn technologies, and even well-meaning people like ourselves into instruments of inequity.
Thirty years ago, my grandmother and I sat in two chairs in the living room looking out at the beautiful view of the yard and the neighbour’s field across the street. My grandmother loved that view; we both did. On this occasion, we had a minor dispute. We both agreed that we were happy, that we were thankful for our lives and the view. But we disagreed slightly on what to attribute this to. When I said, ‘we’re very lucky’, my grandmother responded, ‘yes’; but also, she said, ‘your grandfather worked hard’. My grandmother had worked hard as well, in actual fact. I think that, in emphasizing my grandfather’s hard work, my grandmother wanted both to give my grandfather credit and to teach me a link between hard work and success.
My grandmother’s view was likely influenced by a concept of autonomy that has been challenged by theories of feminist relational autonomy. The liberal vision of a political world made up of autonomous agents or ‘self-made men’, feminist theorists of relationality note, is inaccurate. As Nedelsky (2011: 120) says, people are not self-made. Our essential characteristics, including our capacity for work, language and the concepts through which we understand the world are received from, or developed in us by, others (Nedelsky, 2011: 8).
Autonomy is ‘networked’ in the sense that it arises not out of isolation, but out of a set of networked relations which enable autonomy. Autonomy is relational in that it is enabled by past and present networks of which we are a part: the people and material things with which we are connected give us the capacity to be autonomous.
At the same time, not all relations foster autonomy. Autonomy can be restricted or even disabled by relationships or conditions that compromise the agency of groups or individuals (Oshana, 2005; Stoljar and Zalta, 2013). Wendy Chun argues that new media, or code, creates a fantasy of individual sovereignty, but notes that ‘in networks, the real power would seem to be technology, rather than the users or programmers who authorize actions through their commands and clicks’ (Chun, 2011: 92 and 102, 2016: 83–84). This creates a ‘sovereignty that is no sovereignty’ as ‘codes/habits and crises together produce (the illusion of) mythical and mystical human and machinic sovereign subjects’ (Chun, 2016: 17and 85).
Some institutional and technological setups disable recognition, make invisible and disable autonomy. The legal system that enabled my grandmother and I, as White middle-class people who benefitted from living in a settler-colonial society, to be sitting in those chairs looking out that window makes invisible and requires no recognition of the broader set of legal, economic, cultural, technological and social relationships that put us there: the settler-colonial, gender, class relations and racialized hierarchies that were built into the legal system, that the legal system itself maintains and extends. Relationships that afforded a measure of relational autonomy to my grandfather, and to us, simultaneously disabled relational autonomy for others. Such relations were institutionalized and, to a large extent, path dependent – they passed on for generations. These relations had built us and that place.
Relational sovereignty
Sovereignty comes from relationships. Sovereignty is often thought of as being similar to autonomy; under the concept of ‘sovereignty’ states are seen as independent, as self-governing. As Brown (2010: 22) notes in Walled States, sovereignty has always been, to some degree, a fiction. Relational autonomy suggests that law should recognize that we are not legal atoms, either as autonomous individuals or as sovereign states. Law and international relations must be conceived of as relational: as setting up, recognizing or configuring sets of relationships.
Numerous scholars have, similarly, advocated a relational approach to international relations that would turn our focus away from individual states as unitary actors and towards the network of relations that produce the state. Jackson and Nexon (1999) outlined a relational theory of state noting that states are not unitary ‘things’ but configurations of relations. Burriset al. (n.d.) similarly characterize states as existing in a network of relations. The state, in their nodal governance framework, is seen as a node in a network of governance. Others have discussed a related concept of ‘relational sovereignty’ that I discuss further below (D’Arcangelis, 2010; Hurley, 2021; Iles and Montenegro, 2013; Stacy, 2003).
Relational sovereignty might seem odd to states who are able to fancy themselves as sovereign (thus obscuring their dependence on the periphery). However, for middle or less powerful states, First Nations and Indigenous peoples, or any group other than those at the top of the multi-level game of sovereignty, networked or relational sovereignty has always been the reality, if sovereignty can be said to exist at all (Braithwaite and Drahos, 2000: 483–484; Putnam, 2019). The concept of relational sovereignty is a better descriptor of the varying levels of dependence and ability to act held by states than is the reigning ideology of sovereignty that has presided in international institutions and international law (Anghie, 2017). The concept of relational sovereignty can bring into better focus the racialized, gendered, material spatialization of economic and social power institutionalized in a set of postcolonial relations that is, to a large degree, path dependent – even while critical junctures, such as decolonialization, the rise of information and communication technologies or the global pandemic create limited opportunities for change.
Although Cohen (2017) has suggested that there is a new ‘platform sovereign’, platforms are not ‘self-made’. That is, the dominance of American platforms, such as Google, Facebook and Twitter arises out of relationships that are wired into our legal systems: between speakers, intermediaries and listeners/subjects, between IP owners, users and powerful intermediaries, and between platform companies, data-owners and data subjects. Our legal systems, and platforms’ own business models, are built through historical path dependencies that help to construct the ‘platform sovereign’. To take one example, Drahos (2011) notes that IP rules, established beginning in the late nineteenth century, provide not only an incentive for innovation, but also incentives to lobby to strengthen intellectual property rights, as well as the lobbying resources funded by royalty payments to do so. The resultant ratcheting up of intellectual property standards (Braithwaite and Drahos, 1999) can institutionalize platforms into a dominant position by raising regulatory requirements such that only large dominant platforms can implement them (e.g.by requiring complex technical systems, such as upload filters that only well-resourced platforms can implement and monitor) or through the economic and political clout they confer through royalty payments. This is one example of institutionalized path-dependent relations that power the ‘platform sovereign’ and platform-powered imperialism.
Cohen (2017) argues that ‘legal systems, including both entitlements and regulatory systems, have systematically facilitated’ the emergence of the platform economy and the ‘platform sovereign’. Platforms shape economic exchange, control entryways to business and innovation through intellectual property rights, influence speech and conduct back-room deals among private companies to set the rules of the game online (Cohen, 2017; Tusikov, 2017). The claim that platforms are a new ‘sovereign’ is, in part, a rhetorical move (Couture and Toupin, 2019: 2317) designed to call attention to, and to critique, the ways that platforms have ‘begun to seem uniquely untouchable’ by legal processes and a legal system accommodating them (Cohen, 2017: 178 and 204).
Law and platforms create, recreate and extend ways of seeing that help structure governance. The British Columbia First Nations Governance Initiative notes in its report Decolonizing Data that the way information has been collected, owned and interpreted is tied to systemic barriers, oppression and subjugation of Indigenous peoples (British Columbia First Nations Data Governance Initiative and Open North, 2017). In government archives, and now in digital platforms, data are arranged in ways that reproduce, reflect and extend epistemic hierarchies, creating a new colonial space and a site of struggle (British Columbia First Nations Data Governance Initiative and Open North, 2017). Algorithms are used to map, categorize and divide people in ways that facilitate control, exploitation and manipulation of foreign, and domestic audiences. Shepherd (2015) refers to this as a ‘scopic regime’ – a colonial visuality in which the algorithmic tools provided by platforms enable and extend the colonial gaze, affording the ‘right to look’ at audiences from afar ‘in a synergy between anatomical and numerical control’ that can now be used to extend the hierarchies of speech and property relations online; and to target audiences near and far.
Governments are locked into a path, reluctant or unable to adjust the legal structures that would undermine the current status quo vis-à-vis platforms because digital platforms are the new OS; states and political parties are intertwined with and dependent on digital platforms. ‘Platform technologies are not separate from governments, because they are the primary engines for the digital economy’, Jin (2013: 164) notes.
Just as platforms are powered by relations that communication law plays a significant role in setting up, states’ relational sovereignty arises, in part, from digital platforms. Relational sovereignty, on a descriptive level, recognizes that in the context of neoliberal capitalism, states’ sovereignty is dependent on economic and financial power generated by empowering businesses and consumers (markets, finance and production) as well as on technologies and education (knowledge structures) and security structures (Strange, 1996). The state, market, financial, production and security structures are embedded in relationships with each other; states’ power arises from their ability to empower structures outside the state. The concepts of the ‘platform sovereign’ and platform imperialism are extensions of this idea; states (particularly but not exclusively the American state) are empowered by platforms, and platforms are empowered by states.
Sovereignty and cloud computing
On one hand, the concept of relational sovereignty exposes sovereignty as a fiction, while on the other hand, recognizing that what is often recognized as sovereignty – an ability to exert power in the world – is built on networks of relations that empower some while obscuring an integral ‘underside’ that erases autonomy for many (Ali, 2016: 19).
A traditional state-centric concept of sovereignty can be seen in states’ efforts to keep data within territories, beyond the reach of foreign governments and platforms. Data localization or data residency requirements require that data are stored and processed within national boundaries, in part to protect data from foreign state actors and mass surveillance.
An independence-focussed concept of sovereignty is also reflected in efforts on the part of Indigenous peoples to collect and control their own data, for their own purposes, to forward self-governance and sovereignty (British Columbia First Nations Data Governance Initiative and Open North, 2017). At the same time, Indigenous data sovereignty challenges state-centred versions of sovereignty, requiring recognition of multiple levels of sovereignty and challenging the view that European-modelled nation states are exclusive holders of sovereignty.
Traditional notions of sovereignty-as-independence are, today, challenged. We can see a different concept of sovereignty in a recent white paper on ‘Data Sovereignty and the Public Cloud’ by the Government of Canada (Treasury Board of Canada Secretariat, 2018a). Here, the government rejects widespread data residency requirements as a way of ensuring that data privacy and sovereignty are respected. Instead, despite the risks of access by foreign governments, the article sets out a cloud-first strategy, whereby the Government of Canada would adopt cloud services, such as those of Microsoft, for its data needs. This government policy would ensure that ‘Cloud services are identified and evaluated as a principal delivery option when initiating new departmental, enterprise, and community of interest cluster IT investments, initiatives, strategies and projects’, and that ‘Cloud services are adopted when they are the most effective option to meet business needs’ (Treasury Board of Canada Secretariat, 2018b: 6.2.6.1 and 6.2.6.2). The ‘Data Sovereignty’ paper notes that few cloud service providers have the ability to limit storage to within Canada, and that, in any case, ‘regardless of where the cloud resources are physically located, when data is stored in a cloud environment, the stored data may be subject to the laws of other countries’ (Treasury Board of Canada Secretariat, 2018a: 6 and 8). Thus, ‘as long as a [cloud service provider] that operates in Canada is subject to the laws of a foreign country, Canada will not have full sovereignty over its data’ (Treasury Board of Canada Secretariat, 2018a: 8). The government’s cloud-first strategy incorporates the view that ‘sovereignty’ as independence does not exist or is impractical; that a state’s ability to act as a sovereign depends on networks; that taking forward the project of government means giving up independence to draw on the power and capabilities of networks in which platforms and governments are joined. Is this a vision of relational sovereignty that we should endorse? Should we give up data sovereignty for other networked capabilities?
Relationality: normative views
While the concept of relational sovereignty has strong descriptive power, there is no fixed consensus on what the normative implications of relational thinking for law and international relations are. Most agree that a relational approach should foreground relations over individualistic notions of individuals’ or states’ rights, proper powers and responsibilities. Some relational approaches nevertheless foreground rights, while others focus, instead, on making normative demands relating to representation and participation. Many relational approaches recognize the importance of an enabling environment that fosters individual and group relational autonomy.
One approach to understanding relational sovereignty places rights at the forefront; Stacy (2003) argues that relational sovereignty’s legitimacy comes from the project of guaranteeing citizens’ rights, from the states’ furthering of the relational autonomy of individuals and groups through a human rights approach and from a rootedness in the recognition that all individuals are linked by relations that both shape them, and that they have an interest designing.
Others do not focus on rights. Hurley (2021) rejects Stacey’s focus on human rights, arguing that a normative project of relational sovereignty should set aside the individualism on which human rights approaches are based. Instead, Hurley focusses on the importance of recognizing interdependence and the importance of relationships to state identity formation and responsibilities. Iles and Montenegro focus on representation, arguing that relational sovereignty should involve the greater recognition of social movements and Indigenous peoples in a set of multi-scalar social institutions where sovereignty is shared between interdependent units, governments and international organizations (Iles and Montenegro, 2013: 21 and 23). Nedelsky (2011), too, focusses on representation and participation, promoting the empowerment and involvement of disenfranchised groups in law and policymaking. At the same time, multi-stakeholder governance must not come to mask an underlying neoliberal project in which corporations have outsized influence, while civil society groups’ influence is limited (Chenou, 2011). Escobar (2018: 181) promotes relational autonomy at the community level through community design based on inclusive and heterogeneous alliances outside capital and the state.
These normative dimensions of relational sovereignty may shed a little light on our cloud computing dilemma, but they do not provide a full roadmap. A human rights approach might suggest that the state’s approach to cloud computing should prioritize a right of privacy and, by extension, data localization in the furtherance of that right. On the other hand, it is possible that cloud services power other rights, such as a right to health or a right to education (powered by cloud computing), creating a trickier dilemma of competing rights. A relational approach might recognize that a broader environment of international agreements may make data localization requirements more difficult to implement. Relational approaches that focus on representation and participation suggest community or multi-level control over data and its local storage, as well as the involvement of a plurality of disenfranchised groups in decisions related to the use of cloud computing and data localization by government.
Several scholars have drawn on the concept of relationality to make normative claims about communications law specifically, including freedom of expression, copyright and privacy.
A relational approach to
A number of authors have drawn on a relational approach to address
These approaches recognize that communication law plays a role in setting up an enabling environment for individual and group relational autonomy. 3 They are strongest when they examine broad relational power structures. Susan Williams’ approach, which focusses not on the adjudication of individual rights, but on the broader environment, comes closest to a more fully relational understanding that could, if interpreted robustly, substantially shift oppressive relations.
Initiatives to ‘rebalance’ or modify existing law and jurisprudential tests will have little effect in the context of broader international structures and relations that, increasingly, structure communications law, business models and international regulatory institutions dominated by wealthy countries and their multinational corporate clients (Story, 2012, 2017) International intellectual property and trade agreements set out the minimum standards that protect corporate rights in the realms of Internet liability, intellectual property and privacy. Relational autonomy is virtually impossible to achieve in the context of an international system that, as written, is hard wired to support the status quo.
Many relational approaches to communication law place feminism and decolonial critiques at their core. Relational thinking should recognize that Western communications law is fundamentally unbalanced, with the imbalance forming the integral institutional, legal and intellectual infrastructure – the ‘underside’ – of many communications systems. To achieve broader change, relational thinking must fundamentally foreground the relations that are the subjects of decolonial theory, critical political economy, feminism, critical disability theory, critical race theory, environmental justice and intersectionality. Paired with decolonial thinking and drawing on the full range of these critical theories, relational thinking should highlight and foreground the (exploitative) relations that cannot be fixed by tweaks, upgrades or ‘rebalancing’. Relational sovereignty is built on long historical paths that enshrine inequalities and base the relational autonomy of some on the erasure of autonomy for others. From a normative perspective, a relational sovereign should prioritize broadening the relational autonomy and sovereignty of those who have been disempowered in the integral ‘underside’ of liberalism (Ali, 2016). But that is the essential dilemma; sovereignty is relational, often built on the very erasures and power relations that it claims to redress.
Decolonial theory, critical race theory, feminist theory, critical political economy and other critical theories must be moved to the foreground core of law and policymaking, relational thinking and our legal OS. This involves ongoing recognition and disruption of the ways that our existing legal OS is path dependent – the ways that it is wired to lock in international, gendered, racialized and colonial inequities. The concept of ‘relations’ cannot be disconnected from and can only be understood through those critical theories that deal with historical structural relations, working to change those relations, building new relations and a new machine.
I do not know what kind of disruption – what kind of critical juncture – would bring about an end to the inequitable, unjust and unsustainable world racial political economic system that sustains platform imperialism, and that communications law continues to sustain. Will it be an environmental catastrophe, a global pandemic or something akin to the wave of nationalization of telecommunications that took place early in the twentieth century?
Those at the centres of governance often feel they possess a right and entitlement to know (Strega and Brown, 2015). Redrawing the circuits of our legal OS might require saying, more often, ‘I don’t know’. ‘I’m not the one to know’, recognizing the people and relations that have been made invisible, and prioritizing knowledge that has been invisible. It involves a politics of listening (Weir, 2017: 257).
Conclusion
Today, lives play out on a variety of platforms: desktop, mobile, online and legal. These should not be viewed as systems of justice and communication; they must also be viewed, and viewed primarily, in terms of relations of power. In this article, I have asked: how do we get to critical change? How do we upgrade our legal and international OS?
Digital platforms threaten traditional concepts of sovereignty, give rise to new notions of the ‘platform sovereign’ and raise doubts about whether governments are capable of ‘getting a new machine’, of going a different direction. Concepts of relational sovereignty can be helpful here. However, a normative concept of relational sovereignty, I have argued, must go beyond tweaking the speech regulations, intellectual property laws, defamation laws and privacy laws that have formed part of the platform of empire. Rather, states and international institutions should be concerned with making invisible relations visible; prioritizing the voices of, and empowering groups who have often been invisible; and repairing debilitating relations of extreme inequity. This ‘upgrade’ requires not adjustments to existing communications law, but a restructuring that acknowledges and redresses the power relations addressed by the full range of critical theories, perhaps pulling those together under an umbrella focussed on relations, to redraw the circuitry of the historical unequal relations that communications and media law have sustained.
Footnotes
Acknowledgements
The author would like to thank Megan Richardson, Andrew Kenyon, Jason Bosland, Hamish Carr and the Centre for Media and Communications Law for inviting her to give this talk, delivered as ‘Communications Law and Platform Imperialism: Critical Relations’, at the University of Melbourne in December 2019; Emmanuel Appiah and Manveetha Muddaluru for their research assistance; and Tamara Shepherd, Katherine Boothe and Phillipa Chong of the Women’s Interdisciplinary Research Exchange (WIRE) for their helpful thoughts and insights. She would also like to thank Canada Research Chairs Programme, the Social Sciences and Humanities Research Council (SSHRC) and McMaster University for making this research possible.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This project is funded by the Canada Research Chairs program, the Social Sciences and Humanities Research Council, and McMaster University’s Faculty of Humanities.
