Nathan Gardels is the editor-in-chief of Noema Magazine.
It was inevitable that the tech tycoons who espouse “absolute freedom of speech” on the key platforms of public discourse they own would, sooner or later, run afoul of the laws and norms of democratically legitimated states. That day has arrived with both Elon Musk’s recent confrontation with Brazil’s judiciary over X and Telegram’s Pavel Durov’s arrest in France.
Brazilian courts have shut down X for failing to cooperate with authorities by naming an official representative in the country to be held accountable for its content and operations. The investigating magistrate who issued the order, Alexandre de Moraes, regards himself as a staunch defender of Brazilian sovereignty, accusing X of spreading disinformation that undermines his country’s democracy. Moraes’s decision is backed up by a larger panel of the Supreme Court.
The issue is further complicated since Musk’s Starlink satellite system, which provides internet service in the more remote precincts of Brazil, orbits outside that country’s territorial claims, raising frontier issues about a “space grab” by private interests that escape the bounds of sovereignty. At first, Starlink refused to shut down its accounts but in the end, conceded to the Brazilian authorities so as not to lose its license to operate in the country altogether.
Durov, now out on bail awaiting trial, is accused by the French authorities of failing to cooperate with regulatory authorities by insufficiently monitoring and moderating proliferating child pornography content and money laundering activities among Telegram’s 900 million users.
X has opened the gate to voices once shut out by the mainstream custodians of perception, albeit including those spreading hate speech, conspiracy theories and alternative facts. The low-orbit Starlink satellite system was critical to communication of the Ukrainian resistance in the early days of Russia’s invasion, when territorial internet access was cut.
Telegram’s end-to-end encryption allows Ukrainian forces and Russian dissidents alike to escape the reach of the aggressive and repressive state but, as charged, also enables child pornography networks and criminal gangs to coordinate their doings mostly undetected.
What we are seeing is the conundrum of governing a dual-use information technology that cuts both ways.
The libertarian insistence that the state has no role in regulating or suppressing speech in cyberspace is a mirror image of the full-on claim by an authoritarian nation like China and other autocracies that they have the overarching right to do so as sovereign powers.
Sovereignty In Cyberspace
The issue of sovereignty in cyberspace is not new. It is only finally reaching the logical implosion of its contradiction in open societies where the infrastructure of digital connectivity is controlled by private interests aligned with a libertarian worldview untethered from the grounded ethos of communities that must absorb its consequences.
The matter has long been settled in more collectively oriented and politically circumscribed societies like China, at least officially.
The term “cyberspace sovereignty” was first coined by China’s Internet Czar, Lu Wei, a decade or so ago. He argued that “freedom and order” must be balanced on platforms which connect the entire society through the construction of “firewalls” that limit the spread of content that harms national interests and the values of the Party-state. And that includes information flows from outside China’s borders.
“The internet is like a car,” Lu has said. “If it has no brakes, it doesn’t matter how fast the car is capable of traveling. Once it gets on the highway, you can imagine what the end result will be. And so, no matter how advanced, all cars must have brakes.” It is the state’s role to step on the brake pedal.
As Lu once told a gathering of the Berggruen Institute’s 21st Century Council, “freedom and order are twin sisters, and they must live together,” positing that cyberspace would serve as an “important bridge” between the Party-state and the people.
In a long private conversation in Beijing in March 2015, the top digital authority went further, telling me that the shared public feedback in cyberspace provided a necessary corrective in a one-party system where political pluralism doesn’t exist.
At that meeting, Lu granted Noema’s predecessor, The WorldPost, the first-ever online journalism credential for foreign media because we extensively covered subjects ranging from China’s advances in green technology to the Tai Chi exercise routine of healthy nonagenarians and did not only report on the crackdown against democracy demonstrations in Hong Kong and other human rights issues, which we also did robustly.
Lu was later purged, ostensibly caught up in President Xi Jinping’s anti-corruption campaign.
Since when to step on the brakes in China is determined by the powers-that-be who wish to remain so, it is, of course, no surprise that order always outweighs freedom.
Around the time of Lu’s prominence, The WorldPost published an essay by Peter Dombrowski noting already then that nation-states everywhere, not just China, were “re-bordering cyberspace.”
“China may be more explicit about ‘Internet sovereignty,’” the Naval War College scholar wrote, “but the U.S. and other Western nations themselves have encouraged the emergence of virtual borders as both a prudent response to the demands of civil society and as a means to promote their preferred modes of governance. China simply represents an extreme example of a much wider phenomena.”
The Ethics Of Communication
It is beyond doubt by now that absolute freedom of speech amplified by connectivity is a driver of dysfunctional democracy and, in the name of privacy, even abets criminality under certain encryption regimes. How do we sort out the conundrum of governance so that the bathwater doesn’t drown the baby of social media’s considerable positive contributions?
The place to start is with a guiding principle. In the shallow assertion of cyber libertarians, absolute freedom of speech is, above all, about the autonomy of the atomized individual. But democracy is foundationally about how individuals relate to each other in community through the institutions of self-government. And where there are interpersonal relations, there are ethics. As the philosopher Onora O’Neill rightly argues, factual content and verified trustworthiness of information and sources are equally important as the freedom to speak.
In liberal societies, the balance is precarious and hard to steadily calibrate. Many would agree that Mark Zuckerberg or Elon Musk should not be the ultimate deciders over the content allowed on their platforms, but, as an EU digital minister once put it, “a Ministry of Truth would be worse.”
While in China, the role of the state is to step on the brakes, the role so far of the state in the liberal West has been, in effect, to issue speeding tickets.
The European Union’s Digital Services Act, Germany’s Network Protection Act and other regulatory frameworks have sought to mitigate the harm of misinformation, hate speech and criminality by relying on self-regulation by global Big Tech. Compliance tends to be reluctant and obstructionist. Generally, punitive fines are assessed following breaches of law determined after the fact.
What makes the Brazilian and French cases distinctive is their departure from this reactive mode to a proactive one involving the arrest of principals and the summary shutdown of platforms. Only through test cases such as these can we ever discover how to legitimately establish a balance between freedom and order within a liberal framework of governance.
Fundamentally, what must be acknowledged is that whoever controls the means of connectivity rules. For that reason, it is untenable in nation-states legitimated by democratic accountability for unaccountable tech titans to determine the quality of public discourse.
