With the rise of information technology, how can the law keep up with the datasphere and control it efficiently?
The rise of information technologies – smartphones, sensors spread across public and private spaces, data analytics – has led to the production of considerable amounts of data on human activity and the world around us.
The quantity of data has increased exponentially, in parallel with Moore’s law, which predicted in 1965 that computers’ capacity would double every 18 months.
Scientists have had to introduce new units of measurement such as zetta, denoting thousands of billions of billions (10²¹ or 1000000000000000000000), to designate these orders of magnitude, which were known in the realm of natural sciences but, until recently, absent from the realm of human activity.
Burgeoning data has given rise to a new space – the “datasphere” – a sort of image of the physical world, with traces of real-world activities, including our position at any given moment, our exchanges, the temperature of our homes, financial movements, trading of goods or road traffic.
All of this poses a new challenge to the law, which now has to define its own relationship with this modern sphere.
In order to be understood as a new space, the datasphere must be considered as a system formed by the whole range of digital data.
While the hydrosphere (the global mass of water, including oceans, lakes, rivers and ground water) relies on the molecule H2O, which determines its reservoirs and flows, the datasphere can be built on the data bit.
Like water, data exists under different states: open, widely accessible, or proprietary, with access restrictions. Data can be static, at rest, or in motion. As with water, a data cycle transforms little drops into large masses.
Data is generated from the activity of humans or equipment everywhere. It then flows into storage and processing centres and returns to the individual players following transformation.
Like the hydrosphere, the datasphere interacts with the global environment. It is anchored in the physical and economic worlds, while also being largely independent, much like oceans and clouds.
Its foundation is primarily physical: the datasphere rests on real infrastructure, formed of data centres, undersea cables, communication satellites, and so on. Far from negligible, this physical foundation consumes around 10% of the world’s electricity production.
Economic and legal factors
The datasphere’s foundation is also economic. It relies on major economic actors, mostly multinationals with their complex links to administrative and government institutions. Taxation and state surveillance programmes root these platforms into political territories. And their importance is growing astonishingly fast.
If, in 2010, half of the top ten market capitalisations were in the energy sector, most of them are today in the datasphere. A single oil company, Exxon, is now among six digital platforms (Apple, Alphabet, Microsoft, Facebook, Amazon, and Tencent), in this reversal of trend, symptomatic of the Anthropocene.
The idea of the datasphere raises questions about the way the law comprehends space. It’s likely that answers must be sought through the construction of public international law, as has been done for the sea, international canals, rivers and lakes, the atmosphere and outer space.
The question is whether the datasphere requires the same “need of law”. Answers have already been given in the specific context of the internet, for instance. The image of “cyberspace” with its libertarian ambition for independence and the types of players involved, feeds a wide-ranging debate on the subject.
But, in the context of the datasphere, which can potentially encompass all human activity on the planet, the question deserves special scrutiny. Still, to the best of our knowledge, no comprehensive study identifying the datasphere as a space, potentially subject to one or more legal regimes, has been carried out.
Unlike the other spheres (such as the lithosphere, the hydrosphere or the atmosphere), the datasphere is not yet considered a specific field of human activity into which the law could intervene*.
Nevertheless, this area requires careful examination, particularly on the overall relationship between the emerging new space and its relationship with physical space and new digital territories.
The datasphere can trigger the creation of new relationships within conventional institutions, such as states, cities, districts, or international and regional organisations.
With everything digitised, data no longer belongs to the state, or a specific city agency, or even to the individual; it is given over to the public realm, where everyone can have access to it. Because data can be shared and used widely, collaboration between different levels of government, both nationally and internationally could grow.
New relationships might also result from the massive phenomenon of transferring activities from local, regional and federal administrations into the datasphere. Take, for example, labour relations. The internationalisation of certain service-provision apps, such as Uber, has brought the applicability of local labour laws into question. While some cities have successfully banned Uber, in other places – despite mandatory minimum wages, working hours, and other rights – Uber drivers remain distinctly beyond the realm of national legislation.
There are many relevant illustrations of the law’s quest to cover human ingenuity: space law is constantly shifting, as are discussions on the regulation of the high seas and the highly debated case of the Arctic. Even the biosphere is being given legal status via the “Mother Earth” law in Bolivia.
The datasphere expands into the technosphere, which is the system formed by all human industries, from energy production to administration, from agriculture to transportation.
But the law must understand it as a new space, offering an appropriate framework to understand the new relationships emerging from all human activities.
Jean-Sylvestre Bergé is a law professor and fellow of the Institut Universitaire de France (IUF), Université Jean-Moulin Lyon 3 and Stéphane Grumbach is a senior research scientist at ENS Lyon