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Bluebook 20th ed.

Shubham Mishra & George S. K., Political Boundaries in Cyberspace, 7 Ct. Uncourt 16
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 POLITICAL BOUNDARIES IN CYBERSPACE
A
s Information and Communication Technolo-
gies (ICTs) continue to suffuse through every
aspect of human life in the twenty-first century,
they have skewed the perceptions of citizens, and the
outlook of jurisdictions worldwide. As societies continue to
reshape themselves into digital economies, there has been a
surge in the dependence of individuals, organizations, and
governments on digital infrastructure. Whilst cyberspace has
profoundly altered human life, and presented significant new
opportunities, it has also blurred the lines between digital and
‘tangible’ citizenships of individuals, consequently leading to
states legislating on issues pertaining to cyberspace law, such
as, but not limited to, intellectual property, cybercrimes, fraud,
identity theft, e-commerce, freedom of expression, and
privacy concerns.
The ubiquitous and decentralized nature of the internet has
led to issues in areas of policing free speech, hate speech,
and privacy intrusions for governments, leaving govern-
ments and judiciaries to carry out a balancing act among
citizens’ digital rights. The aforementioned factors dictating
the practice of cyberspace law have had a profound effect
on enforcing political boundaries on the users of ICTs.
Government cyberspace regulators have moved to estab-
lish safeguards to curtail cybercrime. This has given flexibility
to states to exercise confidentiality over their affairs, while
also preserving a great deal of freedom to information, a
provision that ought to be provided to citizens of democra-
cies and high-ranking countries on the Human Develop-
ment Index (HDI).
The following article will seek to elucidate the complicated
relationship that exists between nations, their citizens, and
non-state actors (particularly, commercial parties), and the
legal and political issues pertaining to this tri-partite associa-
tion with regards to cyberspace.
State Sovereignty & Confidentiality in Cyberspace
Although sovereignty over cyberspace may seem to be a
vague concept and given the open nature of cyberspace
today, states still exercise a great deal of privacy and caution
while operating with large amounts of confidential data over
16 Court Uncourt
the internet due to the omnipresent threats from
non-state actors (hacktivist groups) and other nations.
This has often come into clash with the states’ citizens
own rights and desire for transparency with regards to
government dealings. The aforementioned provision
has been realized in many forms across democracies.
Notable examples of the same include the Freedom
of Information Act (FOIA) 1967 within the United
States of America (USA), which entails the partial
disclosure of information (upon request) from agen-
cies of the USA Federal Government, unless the said
request contradicts interests such as law enforcement,
personal privacy, and/or national security, and the
Right to Information Act (RTI) 2005, which empowers
any citizen of India to request information from a
‘public authority’.
Such pieces of legislation were conceived at a time when ICTs
were not commonplace and/or accessible to a large propor-
tion of the population.
A landmark case about the FOIA 1967 was the case of
Department of Justice v. Reporters Committee for Freedom of
the Press [489 U.S. 749.1988], which was ruled at the US
Supreme Court. At the Court of First Instance, it
pertained to a request from a group of journalists, who
sought that the Federal Bureau of Investigation (FBI) and
Department of Justice (DOJ) (agencies of Federal Govern-
ment) release criminal records of four brothers who
had entered into dealings concerning defense
contracts with a corrupt Congressman. The DOJ with-
held the criminal records of three of the brothers, and
only released the records of one, who was deceased

at the time. At the Supreme Court, it was held unanimously
by the judges that under Exemption 7 (c) of the FOIA 1967,
which states that the information held by the federal agen-
cies did not reveal anything ‘how’ the government operates,
the agencies in question were not obliged to disclose that
information. Thus, this case set a precedent, that in the event
a reporter requests information under the FOIA 1967 that
does not seek to reveal any information concerning govern-
mental activities, it does not constitute ‘public interest’, and
rather is thus only pertaining to ‘private matters’. This is an
excellent case which throws light on the balancing exercise
needed between public interest, the confidentiality of the
state's dealings, and privacy intrusion.
However, from a legal perspective, it is important to note
that such legislation will need to evolve to encompass
cyberspace. Taking an example from the FOIA 1967, it was
reported that one in six individuals is unable to access their
desired public information via the act. The quality of the
search results and requests under this act have also been put
into question, with questions being raised by inquirers about
the integrity of the results being provided. The challenges to
extend this legislation onto digital infrastructure are thus
quite clear. Governments are tasked with keeping up with
rapid advancements in technology, whilst simultaneously
balancing the competing interests of privacy and freedom.
Commercial Parties and Political Influence in
Cyberspace
A great deal of influence today is exercised by commercial
parties in cyberspace. Recently, a lawsuit was filed against
Google at the US District Court in California by 2020 US
Presidential hopeful Tulsi Gabbard, who claims that her
Google Ads account was temporarily suspended inten-
tionally, at a time right after the Democratic Party’s debate
in June 2019, particularly at a time when her campaign
experienced a spike in search interest online. The claimant
in the suit Tulsi now, Inc. v. Google, LLC [Case number
2:19-cv-06444, California] filed complaints about, inter alia,
violation of the First Amendment to the Constitution of the
USA, and is claiming damages of USD 50 million.
"Cyberspace is - or can be - a good, friendly
and egalitarian place to meet."
- Douglas Adams
Nonetheless, a more worrying issue is that of competition
law and privacy intrusions on the part of commercial parties
over ICTs. In July 2019, the US DOJ launched a sweeping
antitrust investigation into the big tech companies, off the
back of years of claims of monopolization, and compromis-
ing users' privacy on cyberspace. The claims pertaining to the
monopolization of the market have reached such an extent,
that the US Federal Trade Commission (FTC) has dabbled
with the notion of splitting up the big tech companies.
From a legal perspective, the collection action lawsuit of
Richard Lloyd v Google, LLC [(2019) EWCA Civ 1599. Case
No: HQ17M01913] at the England and Wales High Court
(EWHC) in the year 2018 reiterated the scope of technology
companies. The claimant, Richard Lloyd, applied for a request
to serve proceedings to Google LLC (based in California, USA)
from England, which was obviously out of the jurisdiction of
the respondent. The claimant had asserted that section 4(4)
of the Data Protection Act 1998 (DPA 1998) (an act of Parlia-
ment in the United Kingdom) (supplanted by the Data
Protection Act 2018, which complements the EU’s landmark
General Data Protection Regulation (GDPR) 2018) was being
violated by Google LLC by means of sale of browser-generat-
ed information of iPhone users to advertisement organiza-
tions. Such information was thought to have included
sensitive data, such as, but not limited to, the user’s political
views, geographical location, and financial condition. Being a
collective action suit, the claimant had also sought to repre-
sent other individuals who were affected by this in England &
Wales.
The application was refused by the presiding judge on the
basis of the outcome of three legal tests:
i. the question of England being the appropriable jurisdiction
for the claim, which was ruled to be apt, but the judge saw no
reason as to why the claims were to be brought to the USA;
ii. the question of the jurisdictional gateway that was sought
for recourse, and the claimant had relied upon the notion in
tort that the damage sustained, and the acts committed to
creating the damage were exclusively within the same
jurisdiction, to which the judge had stated the court could
Court Uncourt 17

see no “damage” to the right of autonomy to the claimant
through the non-consensual use of personal data by
Google LLC; and
iii. the question of the feasibility of the prospect of
success the collective class, to which the court had ruled
that the consequences of the actions of respondent were
not uniform across the entire class, and that even if the
class were hypothetically defined, several insurmount-
able practical challenges would arise from the same.
The results from the tests above rendered the case shut,
thus establishing the supremacy of cyberspace operators
in late 2018, before their unforeseen antitrust probe in
2019. This case truly highlights the hollow nature of privacy
safeguards against exploitation from cyberspace operators
in a leading jurisdiction of the world, prior to the enact-
ment of GDPR in 2018. However, still in many jurisdictions
today, it is the commercial parties who dictate the political
narrative, both on a macro as well as the micro scale.
“Cyberspace as a mode of being will never go away. We live in cyberspace.”
18 Court Uncourt
" Cyberspace. A consensual hallucination experienced daily
by billions of legitimate operators, in every nation,
by children being taught mathematical concepts. ."
- Masayoshi Son
Partisan Politics by States in Cyberspace
Perhaps the most recurrent acts of partisan politics on
cyberspace are carried out by states (instead of the
heads of states) themselves. Passive means of doing so
include creating obstacles to access to cyberspace and
ICT infrastructure, and/or placing restrictions on certain
types of content that may be accessed over the inter-
net. Active means, however, entail the direct violations
of the rights of users and include acts of surveillance,
invasion of privacy, the carrying out of consequential
repercussions for online activities by means such as,
but not limited, to censorship, imprisonment, and
harassment.
In conclusion, as cyberspace continues to reshape the
boundaries of political activity across the world, it is the
legal sphere which serves as a deterrent to ensure the
mutual exclusivity of partisan politics and civil liberty
within cyberspace.
- James Gleick