Cyber Checks and Balances
55 Pages Posted: 18 Feb 2022
Date Written: February 9, 2022
How does the digital era affect the ability of governments to ‘govern’? On the one hand, global connectivity and data-driven technologies provide governments with powerful new ways to exercise coercion. Digital surveillance, content takedowns (i.e., censorship), forced data ‘localization’, and hacking, to take a few examples, have become widely adopted techniques in the toolkits of many democratic states. These techniques enable encroachments on liberty that only two decades ago would seem unthinkable. On the other hand, the exclusive status of the state as “the sovereign” is challenged in cyberspace more than in any other arena by a variety of non-state actors, as well as foreign states. Scholarly accounts accordingly split between two narratives: some scholars view the digital era as the beginning of an era of awesome state power, while others see signs of state decline.
This Article challenges both narratives, arguing that ‘government power’ in cyberspace cannot be theorized as a static concept. Rather, it is determined by a web of interactions with and pressures from forces and actors that, although operating outside the constitutional structure, are akin in their effect to constitutional checks and balances. Aiming to fill a gap in the literature, this Article conceptualizes the cyber checks and balances ecosystem, identifies and analyzes its four principal components—the private sector, the ‘architecture’ of cyberspace, international law, and international politics—and examines the interwoven effects. It demonstrates how cyber checks and balances constrain the government in some ways but empower it in others, sometimes even enabling the government to circumvent legal limitations on its own authority. After mapping this ecosystem, the Article assesses its normative implications. Viewing the balance of power between the state and other forces in cyberspace as a system of checks and balances affords a more accurate and nuanced analysis of governmental exercises of power in the digital domain. More importantly, this Article shows that understanding how this ecosystem is shaping state power can help the traditional forces within the constitutional system—lawmakers, judges, and executive gatekeepers—optimize their checking and balancing, ensuring that government power in cyberspace is exercised effectively yet responsibly.
Keywords: cyber governance, checks and balances, private governance, cybersecurity law, law and technology, international cyber law
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