Why digital sovereignty is more than mere legal compliance

(This text has initially been published in The Cloud Report, issue 01/2022. We thank you for this opportunity!)

Hardly any other term has been redefined and re-framed so frequently in last year’s digital political discourse as “digital sovereignty”. The common interpretations range from the use of Open Source Software down to local franchise agreements with tech companies whose commercial success relies on the lock-in effect achieved by having proprietary software in a few stack’s key places. This interpretive diversity of “digital sovereignty” not only allows these companies to use the term as a fig leaf, but also makes it difficult for governments, institutions, companies, and individuals to rationally evaluate the available offerings in order to make a strategically reasonable decision in the end.

This article is intended to help demystify the term “digital sovereignty” by exploring the different dimensions of digital independence and is a first approach to create a well-defined taxonomy that allows an evaluation of digital offerings far away from buzzwords and hypes.

So what is this digital sovereignty and if so, how much? Let’s find out together!

Sovereignty in a general sense

The ambiguity of this conception already begins with the notion of sovereignty. Not without reason the German jurist Lassa Oppenheim writes

There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.

(Oppenheim, 1912)

Although the meaning of sovereignty has varied throughout history and across scientific disciplines, its core meaning can be condensed to “supreme authority within a territory” (Philpott, 2020).

As Stéphane Couture and Sophie Toupin outline in their work “What Does the Concept of ‘Sovereignty’ Mean in Digital, Network and Technological Sovereignty?”, the notion of territory does not need to be restricted to the landmass, “but also - and this is important for our later analysis - to resources lying on the territory such as human infrastructures …“ (Couture & Toupin, 2019).

For instance, in this same article, Couture and Toupin point out various notions of sovereignty, be it food sovereignty, energy sovereignty, or body sovereignty. While the former both terms address the sovereignty over the means of production, the latter term describes the self-determination over one’s own body.

But what exactly does sovereignty in the digital realm refer to? Does it conceptualize the state authority in the digital space, does it relate to the means of production, or ultimately, to self-determination over technology?

Many attempts have already been made to fundamentally define this term. For instance, the focus group “Digitale Souveränität in einer vernetzten Gesellschaft” postulated at the German “Digital Gipfel” 2018:

Today, digital sovereignty is an important aspect of general sovereignty, which refers to the ability to use and design digital systems, self-determination over aggregated and stored data, as well as over the related processes.

(Digital-Gipfel, 2018)

How can we foster self-determination over technology, aggregated data and digital processes? To answer this question, we will now take a closer look at the various dimensions of digital sovereignty.

Legal dimension

From a legal perspective, digital sovereignty would encompass the ability of a society to define the rules for digital solutions and to also enforce these rules. An important rule that the European Union has put in place is the General Data Protection Regulation (GDPR), which aims to govern the collection, processing and deletion of personally identifiable data in order to protect the freedom of individuals by giving them some level of transparency and control over data about them.

Current discussions around digital sovereignty usually arise from the use of (cloud) offerings that transfer or process personal data outside of the EU and thus are in conflict with the recent Schrems II judgment¹.

For example, a variety of data protection authorities have raised concerns over the use of Microsoft 365 offerings as several violations of the GDPR have been identified:

Third, EU institutions faced a number of linked issues concerning data location, international transfers and the risk of unlawful disclosure of data. They were unable to control the location of a large portion of the data processed by Microsoft. Nor did they properly control what was transferred out of the EU/EEA and how. There was also a lack of proper safeguards to protect data that left the EU/EEA. EU institutions also had few guarantees at their disposal to defend their privileges and immunities and ensure that Microsoft would only disclose personal data insofar as permitted by EU law.

(European Data Protection Supervisor, 2020)

A possible remedy is to create franchise agreements with local trustees who operate the software in their respective jurisdiction². While this approach addresses the aforementioned conflict, neither self-determination nor sovereignty over the means of production are given.

Even if local security institutions audit every single modification coming from the outside software provider, these offerings still need a high presumption of trust between software vendor, local franchise partner and customer. Are security updates provided to the trustees in a timely manner? Is operational knowledge around the technology (which may originally not have been designed to be operated by third parties) sufficiently shared and documentation appropriately maintained? Isn’t there still a complete dependence on the single technology provider and operator?

These and more questions arise as soon as considering more than just the legal dimension of these offerings.

Freedom of choice

When building digital services on top of infrastructure, the services will leverage the interfaces, automation capabilities, and higher level services from the infrastructure in order to work well and to be efficient in development and operations. This invariably makes the thus developed services dependent on the infrastructure.

The dependence makes it hard to move these services to different infrastructure. The switching cost can easily become prohibitive and create a lock-in effect that makes it extremely hard to ever redeploy the services elsewhere.

This can be mitigated in several ways. In the best case, all the interfaces, automation capabilities and higher level services are standardized well and can be implemented independently by a variety of software solutions and infrastructure operators. This is the case with Open Standards and Open Source Software.

In somewhat less ideal scenarios, the interfaces and solutions are not standardized across vendors, but at least the software is easily available and can be and is operated independently by many providers, so all these providers can offer compatible solutions. Consumers of these services could also opt to deploy the software themselves and operate the infrastructure in-house if no external provider meets his needs.

In the absence of open standards and available open source implementations, even with enough choice of providers, there remains a full dependence on the software provider, though.

Technological dimension

With regard to sovereignty over the means of production, it is thus mandatory that we also analyze the technological self-determination of digital offerings.

For the time being, we will ignore the area of hardware and focus entirely on software. This also corresponds to the observation of Kagermann et al:

In traditional contexts such as data centres, hardware is a readily available, standardised commodity. The users of enterprise software and other similar types of software can freely choose which hardware (e. g. PCs and notebooks) they use, and are thus able to avoid dependence on individual manufacturers. As long as hardware and software are decoupled, it doesn’t matter that there are no German hardware suppliers of note in the private and commercial markets.

(Kagermann et al., 2021)

However, in the scope of software, on the other hand, proprietary licenses and vendor lock-in effects can create dependencies that ultimately contradict a self-determined usage of this technology.

The answer is a global movement that originated in the late 1980s. “The open source movement has brought the world a new way of developing software”, as Dirk Riehle points out correctly in his plea “The Unstoppable Rise of Open Source”.

Open source is a “development method for software that harnesses the power of distributed peer review and transparency of process. The promise of open source is better quality, higher reliability, more flexibility, lower cost, and an end to predatory vendor lock-in.

(Riehle, 2013)

This is exactly where the importance of Open Source Software for achieving sovereignty and self-determination becomes evident. While we had to assume a high level of trust in the previously mentioned local franchise example, Open Source Software can be transparently peer-reviewed at any time. Simultaneously, we are not dependent on a single technology provider and e.g. security updates can be provided by either an established community or a suitable contractor.

Only the freedom to inspect, adapt, use and share the underlying technology grants sovereignty in the sense of self-determination. From a strategic perspective in the sense of digital sovereignty, however, securing these freedoms requires much more than just the corresponding licenses.

On one hand, strategically important building blocks should also be sustained by a sufficiently active and open community that develops software according to the principles of the Four Opens³.

The flip side is: it requires skills and knowledge to actually be able to practice this self-determination at all. While Open Source makes the skill building possible, the required amount of knowledge can become prohibitive to actually exercising these possibilities. This will be the main subject of our next dimension.

Dimension of competence

The greatest software is useless if it cannot be operated confidently. But for this to happen, skills and knowledge must be built up, fostered and retained. In an increasingly competitive market for skilled people and increasingly complex IT systems, this is becoming an ever greater challenge for governments, institutions and companies. How can we operate digital offerings in a self-determined, secure and qualitatively excellent manner?

While software as a means of production has been and is being increasingly collectivized thanks to the Open Source movement, organizations continue to protect operational knowledge like a holy grail. How sovereign can an organization act, if precisely this important knowledge only adds to the lottery factor⁴?

The answer to this must be the collectivization of operational knowledge, just as it is being practiced for many years with software code. So we need to build communities who collaborate on exchanging and recording this experience and the tooling built to simplify the automation of operational processes. We create a climate in which Operations is not supposed to never make any mistakes – instead we create infrastructure that is robust against mistakes and a culture where openly talking about mistakes – even beyond organizational boundaries – and learning from them is appreciated and considered a strength. We learn more from our mistakes than from our successes – usually because we analyze them much more intensely.

We are still at the beginning of a new movement, which is becoming increasingly important as the overall complexity of software stacks increases. For true self-determination in the ever growing digital realm, we urgently need to build skills and share the gained knowledge freely and in unlimited ways also in the realm of operational knowledge — exactly the way we started with software code almost 40 years ago.

Let’s start closing the gap to have Open Source style collaboration not just for the Dev piece in DevOps. And this is just another urgently needed piece to enhance and grow the overall digital capabilities for achieving sovereignty in the digital realm.

Bibliography

1. Oppenheim, L. (1912). International Law. A Treatise. Volume I (of 2) Peace. Second Edition. Longmans, Green and Co.
2. Philpott, D. (2020). Sovereignty. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (Fall 2020). Metaphysics Research Lab, Stanford University.
3. Couture, S., & Toupin, S. (2019). What does the notion of “sovereignty” mean when referring to the digital? New Media & Society, 21(10), 2305–2322.
4. Digital-Gipfel. (2018). Digitale Souveränität und Künstliche Intelligenz – Voraussetzungen, Verantwortlichkeiten und Handlungsempfehlungen. Plattform Innovative Digitalisierung der Wirtschaft: Fokusgruppe „Digitale Souveränität in einer vernetzten Gesellschaft“.
5. European Data Protection Supervisor. (2020). EDPS public paper on outcome of own-initiative investigation into EU institutions’ use of Microsoft products and services. Publications Office.
6. Kagermann, H., Streibich, K.-H., & Suder, K. (2021). Digital Sovereignty: Status Quo and Perspectives. acatech - Deutsche Akademie der Technikwissenschaften.
7. Riehle, D. (2013). The Unstoppable Rise of Open Source / Der Siegeszug von Open Source. It - Information Technology, 55(5), 171–172.

Über die Autoren