Introduction
Cyberspace has been one of the topics of recent concern. Numerous sectors of the global economy, such as health, banking and finance, communication and defence industries, heavily rely on cyberspace. Research provides enough evidence that cyberspace is a requisite part of political, social and economic power universally. Cyberspace allows people to share vital information globally, facilitating the growth and development in numerous parts of the continent and enhancing industrialisation and new technological methods.[1]. Therefore, it positively impacts people’s lives and enhances their living standards.
However, with the upsurging access to the internet, cyberspace has become an issue of concern, raising keenness on interests from people, international bodies and the state. Many perilous infrastructures in society relying on cyberspace makes it vulnerable to exploitation and disruption[2]. The constant and progressive advancements and innovation in cyberspace technologies uninterruptedly generate new forms of security difficulties. Cyberspace is full of conflicts, and its often threatened threats are caused by diverse players such as unethical crackers or hackers, non-state and terrorist actors, as well as the use of covert cyber capabilities by states. The increase in security threats due to the development of cyberspace upsurged the need for tighter laws and regulations. The higher degrees and constant transformation of the complexity of cyberspace develop a significant barrier to its regulation.[3]. The most significant complication or problem experienced by the cyber world is its highly unregulated domain. Nevertheless, the universal cyber community mainly focuses on upgrading and enhancing the use of technology rather than taking articulate measures to stabilise and secure the domain regarding the growth rates of threats. Research indicates that there have been numerous discussions when issues associated with cyber laws and regulations arise.[4]. Cyberspace regulation is the adoption of strategies and measures to safeguard the utilisation of the internet. Some researchers state that cyberspace should not be regulated because it has been deemed impossible, while others argue that cyberspace requires regulation. Therefore, this report proposes to identify why cyberspace has become increasingly difficult to regulate.
Barriers to Cyberspace Regulation
Lack of Physical Proximity
It is important to note that cyberspace does not have a real connection with real space, meaning that it cannot be divided on the foundations of physical boundaries[5]. Beyond the satellites, telephone lines, cables, and computers, regarded as the backbones, cyberspace has no other connection with the real world. It has a separate world that is built of electric data and passwords. In this interest, the causes of actions of the suit, which is the key traditional foundation for fixing jurisdictions, cannot be developed with the Internet certainty.[6]. Research indicates that the aptitude to impose sanctions on violators of laws is fundamentally constrained by the need for physical proximity. The internet has its boundaries in the form of passwords and screens that separate the virtual world from the real world of atoms[7]. Boundaries help define diverse cyberspace that needs and can develop new legal institutions. In this case, the territorially-based law finds the new surroundings profoundly threatening. The absence of physical boundaries in cyberspace leads to circumstances through which the foundation of culture and morality is shaken[8]. Regulations applied in the physical world cannot be employed in cyberspace because it lacks a sense of permanence.
Cyberspace makes it challenging for the national government because it is a truly universal technology that is considered to be nowhere but everywhere. It means that in cyberspace, individuals can move from one legal jurisdiction to another and can decide on the legal rules that apply to them or decide not to choose any legal jurisdiction[9]. Cyberspace develops a tremendous challenge to the traditional jurisdiction notions as a result of its aptitude to cross borders without being subject to border control[10]. Therefore, the consequences of digitalisation are that numerous Internet activities are becoming widely distributed, making it challenging to apply existing laws to the Internet analogous to the physical world operations.
Cyberspace Sovereignty
Notably, the digital environment is developed within the web of linked devices via fibre optic cables that carry data packages. The network is regarded to be complex because it relates to billions of devices, such as laptops, desktops, and smartphones, as well as the Internet of Things (IoT)[11]. According to research, the sphere of cyberspace is capable of reaching as far as the network of interconnected devices permits. Correspondingly, the degree of the digital realm can be controlled by the limitations of the network. In this interest, it becomes immensely challenging for a single state to govern the universal network[12]. This raises the issue of cyberspace sovereignty.[13]. It is a facet of Internet governance where states are given jurisdiction or control over the Internet within their territories or boundaries. The control is not restricted to the cultural, technological, political, and economic activities within the particular nation. Territorial sovereignty protects states from any interference by other countries or by individuals. A state’s sovereignty is violated when third parties obtain unauthorised access to Information and Communication Technology (ICT) in foreign nations without the permission or knowledge of the host nations. Within the boundaries, regulations and laws remain in effect.[14]. Therefore, since cyberspace is universal and lacks politically formulated territories, it is exceptionally challenging for a specific state to regulate all aspects of it completely.
State Overreach and Jurisdiction of Internet Cases
The current state of the internet shows a remarkable achievement due to its connectivity and complexity capacity. Research proves that the state’s engagement in any part of the complex and progressive networks might cause unintentional consequences in other parts of the digital environment. Even in entirely operational democracies, speedy regulatory and legal measures can sometimes cause policy overreach as well as stifle the information technology industry’s aptitude to operate optimally. In an environment with continuous technological development, most social media platforms have only existed for a few decades.[15]. Such a situation makes it very difficult to fine-tune the required degree of control. It is important to note that various states have, throughout history, modified and developed appropriate official processes to in a position to control several parts of their dominion[16]. As such, the swiftness at which technology develops is considered phenomenal, specifically when compared to the slow progress of government practices. This is an indication that there is a misalignment between how the technology evolves and how the government operates[17]. Therefore, employing the traditional state’s regulation mechanisms to the technological process may lead to policy overreach in various parts of the state.
The efficiency of the judicial system rests on a bedrock of numerous regulations. The regulations are used to define all aspects of the operations of the judicial system. Courts should have jurisdictions, appropriate services, processes as well as venues to hear cases and render judgements. However, it is not possible for the numerous internet issues and litigations to be managed by existing principles of jurisdiction.[18]. Due to the unique characteristics of the internet, laws and deciding jurisdictions in cross-border litigations cannot be used to fix jurisdictions of Internet cases. Notably, laws in accordance with jurisdictions where parties have yet to choose a state forum still need to be clarified.
Anonymity, Permanency and Ambiguity
The internet provides its users across the universe with the freedom to decide to remain pseudonymous and anonymous and, if desired, create multiple online identities. The aptitude to stay anonymous has numerous beneficial impacts on realising freedom and rights to expression. The internet enables people to access information and participate in public debate without revealing their identities.[19]. Various states have introduced and modified existing laws to upsurge their power to monitor the contents and activities of internet users without suitable safeguards against abuse. Notably, protecting an individual’s anonymity on the internet differs between nations and mainly depends on the nature of activities. Some countries have laws that disclose the identities of people blogging anonymously and whose blogs negatively impact other people’s reputations. Besides, blogging anonymously can become a form of bullying, especially when one infringes on other people’s privacy by sharing their secrets.[20]. Downloading anonymously has also led to illegal downloading of film and music from online websites. Other people use the internet to sow fear, sway opinions, doubt, uncertainties and provoke arguments. However, not all cyber-trolls are involved in abusive behaviour[21]s. Therefore, in cases where cyber-troll actions contravene domestic laws and or are recognised restrictions to the freedom and right of expression, the issue of their anonymity makes it more challenging in the sense of regulation because the complainant can never approach communicators directly, and they cannot know where they originate from.
Once the material is published on the internet, an archive is created immediately. As such, the archive remains stored or cached on the internet enabling it to be reachable through web searches on a probable perpetual foundation. It is important to note that the process is an indication that the issue of permanency of information is searchable and straightforwardly capable of duplication or copying. The permanency of information significantly weakens the court’s utility to order the removal of any material from the internet.[22]. Therefore, once material is exposed on the internet and made available to every person and sundry without any geographic limitations, immediate access to materials poses extensive difficulties for the administration of justice.
Another crucial characteristic of the internet that makes it challenging to be regulated is how it enables immediate and worldwide dissemination of information[23]. The feature renders the internet a powerful tool for expressing one’s rights and freedoms. As a result, the internet is attributed as a tool that upsurges information access, helps citizens to actively participate in developing democratic societies and acts as the driving force in hastening growth and development. Irrespective of the internet’s many advantages, the feature can cause numerous disadvantages. One of the key problems is the issue of online defamation.[24]. The internet’s universal instantaneous and reach nature indicates that the probable consequences of defamatory statements can damage people’s reputations compared to statements made and published offline. It is important to note that people whose reputation is ruined have a right to reply to restore the harm caused[25]. However, the right to respond usually has a limited value, especially if it is visible in the same places where original comments are located on the internet. Thus, the efficiency of regulating cyberspace could be better in cases where materials are cached on the internet.
States as the Consumers of Technology Products and Services
One of the fundamental issues in establishing a digital government is the position in which the states stand in the technology industry. Even though the state can assist and endorse an innovative environment for industrial and scientific accomplishments, they are not the leading innovative performers in their own right. However, they are considered the clients of technological products and services that private organisations develop.[26]. ICT was primarily established by major tech organisations, platform providers and private institutions. Typically, the states only must try and keep up with technological advancements after being widely embraced by society. In addition, policymakers, public servants, politicians, public servants, and regulators usually need more technical know-how that is vital for examining the complicated systems that are made up of billions of interconnected devices. It is important to note that a service used by millions of individuals can be destroyed by choices made by a small group of bureaucrats.[27]. The inclusive and innovative technological qualities tend to disappear if a state holds the necessary regulatory authority but needs more technical know-how.
Technological Advancement
The ever-evolving digital age significantly impacts cyberspace. It is important to note that the constant advancement and innovation in cyberspace technologies generate new forms of security challenges[28]. Research indicates this is an age of Artificial Intelligence (AI) driven autonomous and automated machines. The rapidly increasing potential for self-replicating, self-improving and autonomous intelligent machines has led to a massive transformation of cyberspace. Experts have welcomed the potential of AI to advance system robustness and verification[29]. However, the rapidly evolving AI systems continue to raise serious concerns for the fairness, accuracy, trust, transparency, privacy, security and ethics of the future of humanity, encouraging calls for regulation. Besides, there is a concern about the escalation of responses as well as the lack of control over the snowballing impacts that the AI-led counter-attacks may cause. Regulating AI is challenging because it is transformative, transparent, democratised and easily distributed. It touches every sector of the worldwide economy, putting the safety of the entire humankind at risk.[30]. Research indicates that AI can be easily misused and behave in a harmful and unpredictable manner towards humanity. Some of the key problematic features of AI include the security risks that occur as a result of the AI code, lack of identity for algorithms and nomenclature, the integrated and interconnected security risks that arise as a result of decentralisation and democratisation of AI Research and Development (R&D) as well as the nature of self-improvement of the hardware and software.[31]. For example, ChatGPT has the ability to seemingly spit out faultlessly written code, even without the user’s skills, leveraging the software for malicious behaviours. Therefore, it is challenging to regulate newly developed machines because they contain software that is somewhat difficult to comprehend.
Monopolising the Digital Market
The aptitude of the major technology firms to evade rules recognised by the state is another unanticipated impact of cyberspace regulatory mechanisms. As a result of their significant organisational and legal power, big internet firms are likely to circumvent the regulations more straightforwardly than their lesser counterparts, who lose in the competition due to their relative shortcoming in adapting to the regulatory measures.[32]. Therefore, this develops an environment where only the strongest and biggest can endure[33]. Additionally, while the hugest IT organisations upsurge their expertise, develop more exclusive rights, and improve their financial scenes, the barrier to access for small digital enterprises and startups can get advanced if the states fail to predict the end outcomes of their guidelines. An inadequate understanding of the fundamental IT business landscape, as well as the unadorned weight of the regulations, tends to be encumbered on the shoulders of the minor digital platforms.[34]. In this interest, the companies tend to be subsequently further excepted from the digital market, thus, solidifying the supremacy of the chief IT giants. Therefore, without appropriate deliberations on the impacts of digital constitutions on the market, the monopolisation of primary tech firms tends to challenge the appearance of an inclusive and innovative IT sector.
The Undemocratic States and Possibility of Violations of Fundamental Rights
In the current information age, technology has become an essential part of everyone’s daily life, and people’s access to information has become very simple and easy. In this interest, incorporating technology into our everyday activities creates weaknesses that must be managed. Powerful nations can ratify regulations and laws that regulate numerous facets of the digital environment transparently and democratically.[35]. Nevertheless, fully democratic nations are in the minority in a universe with frequent countries with damaged autocracies, democracies, monarchies and dictatorships. This raises the question of how people can expect anti-democratic countries to safeguard their fundamental freedoms and rights, such as their rights to political opinions, expression, and information exchange if their authoritarian nations lead to regulatory activities developed to limit the vital characteristics of ICT. If so, all the disruptive and anti-democracy governmental actions would be augmented in the digital universe and felt by the individuals of that land. Besides, considerable censorship, social media control, free speech violations, unjust surveillance by the government, political dissident detention, as well as the dissemination of propaganda and fake news would follow.[36]. Consequently, in the end, no one is set to guard or intervene in their guardians’ repressive affairs as they are still a sovereign power.
Conclusion
In the above analysis, cyberspace is not a field that up-to-date territory-founded legal systems can accommodate. In this case, the standardisation of cyberspace law needs to be arrived at, and the issue of technology regulation requires remarkable foresight and consideration. It is challenging to regulate cyberspace due to such issues as the undemocratic states and the possibility of violations of fundamental rights, monopolising the digital market, technological advancement, states as the consumer of technology products and services, anonymity, permanency, ambiguity, state overreach, cyberspace sovereignty and the lack of physical proximity. Notably, suitable multidisciplinary cooperation, human resources, higher levels of flexibility and public-private partnerships are needed to keep up with fast-developing and advancing technology. Also, there is a need for a robust digital constitution and governance. Therefore, the problems can only be solved if an increasing number of nations implement noteworthy reforms to their own social and economic systems.
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