The Emergence of the State in the Online Frontier - Major Shiniak

01.12.14
Amit Shiniak



“On the Internet, nobody knows you're a dog.”

Peter Steiner, cartoon in The New Yorker, 5 July 1993

Introduction

Is the internet a new environment that allows us to hide behind a computer, without being discovered? Is this an unprecedented phenomenon that leaves the state embarrassed?

The computerized communications network known as the internet is so much a part of modern life that it has developed a public image identified by some as a utopia, bound to liberal values such as freedom, equality and progress, while others view it as a realm of anarchy, with anti-establishment values like lack of control, terrorism and extreme individualism.

In this article, I will attempt to examine perceptions of the internet as an online realm and the broadly held supposition that it is a space free from the control of any state, political or security establishment. The research question underlying this article is whether it is possible to compare historical processes of the creation and imposition of national and military sovereignty on physical realm (land, sea and air) to similar processes in the realm of cyberspace. This question, which analyzes political and historical realities, has broad implications for diplomats, bureaucrats and military personnel tasked with developing and implementing policy in the realm of cyberspace.

The central hypothesis is that it is possible to find certain theoretical parallels between the development, establishment, and imposition of the state’s sovereignty in cyberspace, and in other frontiers. In other words, the state’s ability to control and to impose

itself in this space is similar to the capability demonstrated in the past regarding other “new” spaces in similar stages of development. Cyberspace will be examined, therefore, as a “border zone,” or a “frontier,” and will be compared to the initial imposition of state sovereignty on the seas as an example of another period in which the state’s sovereignty was uncertain.

Therefore, the main purpose of the article is to clarify and establish theoretical and conceptual foundations, and to provide historical examples that will facilitate an analysis of the development of the state’s security policy in cyberspace. With the growing importance of cyberspace in defense systems, there seems to be a lack of a holistic, historically useful foundation for the purpose of planning a strategic policy, and an inclination to deal with this topic on an ad-hoc basis, confining it narrowly to tactical- or intelligence-based discussions.

In an attempt to support the hypothesis that we can learn about the state’s policy vis-à-vis cyberspace from an examination of the state’s historical interaction with other spaces, the article will present the theoretical concepts required to analyze the internet (cyberspace, sovereignty, globalization), the historical process of the creation of the state, and a comparison of the conduct of states in the oceans and in cyberspace by an analysis of the establishment of the state in these spaces, emphasizing geographical mapping and territorial demarcation and the imposition of its political monopoly on the organized use of force.

The Concept of Challenged Sovereignty and Cyberspace

As this article analyzes the interaction between cyberspace and the actions of the state designed to apply its security sovereignty, and to ground its ability to impose it, it contains a hidden premise that cyberspace challenges the state. This challenge emanates from the international nature of cyberspace, which creates difficulties in imposing a political order based on territory, the rule of law and in the application of international norms and laws. The erosion of the state’s sovereignty is a more complex phenomenon than described in some studies that have analyzed the modern phenomena that contributed to this situation.

On the one hand, globalization is a contemporary example of the challenges eroding sovereignty, phenomena like international organizations (IOs), non-governmental organizations (NGOs) and cyberspace, which fan the controversy about the future of the state as the leading, established political entity in the current international and regional system.[2]

On the other hand, many historical studies show that significant challenges to the sovereignty of states arose in the past, as well as political entities presenting themselves as alternatives to the system of sovereign states, but failed in their endeavor to replace them[3]. We can point to regional and ethnic empires,[4] religious organizations,[5] international chambers of commerce and professional guilds,[6] as well as independent groups using force such as pirates,[7] mercenaries, private armies,[8] criminal organizations,[9] and terror organizations.[10]

In view of these challenges, the system of state sovereignty has survived, especially in the sense that it has preserved the continuity of the legitimacy of territorial sovereignty and the monopoly on the organized use of force.[11] The survival of the state is a result of steps designed to preserve the monopoly on sovereignty. These steps indicate that state sovereignty is a relative status achieved within a set of internal and external inputs (pressures, challenges and opportunities), and therefore the concept of sovereignty expresses a permanent, subjective struggle against challenges, be they social or technological in nature.

Therefore, the state is in a constant negotiation with various parties, entities, institutions and individuals who challenge it.

Frontier Regions as an Expression of Uncontrolled Space

“Frontier lands,” or “frontier regions,” is a concept that has too many conflicting interpretations. As such, it is convenient to define it vis-à- vis the familiar and common concept “border.” These terms, from the physical world, are significant for the comprehension of the interaction of the state in cyberspace, even though the latter is virtual. A frontier is related to the forward or front regions of the state (forward in the sense of distance from the home front or the center). On the other hand, “boundary” relates to the significance of the demarcation of the sovereign state, being the legal sovereign within a bounded territory.[12]

The characteristics of these regions are different in a number of key aspects.[13]

The frontier region is centrifugal/outwardly oriented; it is a historical, social phenomenon, vague and hard to define unequivocally, intended to serve as a shock absorber for the state, while acting simultaneously as an intercultural integrator and an economic catalyst. Similar to the term “soft border,” it is an expanse designed to be crossed, leading to a situation in which, despite being ascribed to and identified with a certain state, the parties involved in it have independent interests, not always overlapping with the policies of the political center. As an historical phenomenon, the concept of borderland is identified with the existence of empires with long, wide borders, such as Rome or China,[14] but also with more modern states such as the United States.

The border, as opposed to the frontier region, is “inwardly oriented.” The border is generally clear and easy to define (physically, socially and mentally), and acts as a symbol of political and territorial decisions reflecting the effective limits of control and the recognized international boundary. The purpose of the border is to restrict the political community; it is not designed to be crossed, but acts as an obstacle, and serves as a separating element.

It is therefore an expression of the policy of the government and/or the political establishment, and is formally protected by international law. Consequently, its essence changes according to the political substance of the state, and it is subjective, dependent on socio-political association.[15] There is an inclination to dissociate the status of the border from that of the frontier, but, in light of globalization, and the information revolution emphasizing the mutual influence of social and economic potential, latent in the “openness” of the frontier region (as well as the dangers emanating from that openness), it becomes more advantageous for the state to defend this potential and define the frontier as belonging to the state, while attempting to create openness but with a higher level of control.[16] Further on I will demonstrate how a state’s conduct in relation to its borders is an effective tool to understand its conduct in the realm of cyberspace.

Cyberspace: Between Technology and Social Phenomenon

Cyberspace will be presented in this article as a new realm that has become accessible to social, political and state interaction due to technological developments, while at the same time challenging the sovereign state. The concept of cyberspace was expressed and explained by the author William Gibson in his 1984 fictional novel, “Neuromancer.”[17] The fact that the concept originated in science fiction is, perhaps, one of the reasons for its many interpretations, and for the difficulty encountered by scholars, bureaucrats and politicians to interpret it as having an applicable meaning, comparable to geographic spaces such as the ocean.

A main expression of the conflict about whether cyberspace can be compared to physical space is the differences between two groups of common definitions of the term “cyberspace.” The technical definition, formed by computer experts and lawyers specializing in technology, is based on the technological development of the internet. The social-spatial definition was first formed by Gibson, and further developed by a series of science fiction writers.

Gibson, who coined the concept “cyberspace” in the very first days of the home computer and computer-mediated communications, and before the development of the internet and the establishment of applications such as the world wide web, uses the social-spatial definition by describing cyberspace as a graphic expression of a mathematical matrix, producing a comprehensive, visual experience among various computer users.[18] Gibson refers to cyberspace as a phenomenon that challenges the whole sensorium (the sensory center of the brain) as can be seen from the “literary definition” of the concept “cyberspace”:“A graphic representation of data abstracted from banks of every computer in the human system.”[19]

Gibson’s reference to the internet as a “space” flows from his vision of the impact of computer networks on humans who use them, to the extent that many publics today sense a new space and a virtual reality. This “spatial” definition makes use of social- geographical metaphors to describe the internet as a space encapsulating all possibilities contained in human interaction: emotion, belief, cooperation, war, terrorism, etc. In his opinion, users are not “communicating,” as in a telephone conversation, or “watching” passively as though watching television. Users of the internet, according to this definition, which is commonly held today, create an interaction similar to one between humans in a physical space. This is why users “surf,” “visit,” or “leave,” metaphorically, in cyberspace. It is the spatial definition that permits the comparison of social interaction in cyberspace, from a political and defense angle, to other physical spaces.

As opposed to Gibson’s spatial definition, the definition common to a large section of research, legal and political literature is characterized by the “technical” definition of the internet, and is based on professional jargon used by computer experts, focusing on the description of a technological innovation, not on its latent significance. This can be seen from Lemley’s definition: “The internet is merely a simple computer protocol, a piece of code that permits computer users to transmit data between their computers using existing communications networks.”[20[

The technical definition draws a parallel between the technical description of the concept “internet” - an application of computer mediated communication, making use of information technology, and in practical terms existing in the current world-wide computer network (www) on the one hand, and the term “cyberspace” interpreted as a label or metaphor only- the interaction taking place on a computer network- on the other hand.

The parallel, based on the computer mediated communication’s (CMC) method of operation, relates generally to communication between “hosts.” These units are defined as computer hardware linked to the internet, whereas each end unit (node) is counted as an additional unit of the network.[21] The novelty of the internet emanates from it being a communications network linking pre-existing internal computer networks (Intranet), by means of applying a technological development which enables the efficient, decentralized transfer of electronic data, known as “package switching.”[22] This allows for redundancy after attack and minimizing damage.[23]

Among those who view the internet as simply a technological development, there are some who think that it cannot bring about a significant change beyond the complex influences of the modern media.[24] The contradiction between legislation and political programs based on the technical understanding of the internet on the one hand, and the public, spatial view of cyberspace on the other, is one of the basic problems hindering the promotion of a common policy and unified international laws. Conversely, in recent years, definitions of cyberspace in current documents, which I have adopted for the purpose of this article, bear witness to the recognition of the technical substance of cyberspace, but also of the need to relate to it as a space with complex, social, political and security implications.

Thus, for example, Israel's Government Resolution No. 3611 on “The Promotion of the National Capability in Cyberspace,” of August 2011, defines cyberspace as “An area, physical or not physical, that is created or assembled from some or all of the following factors: computerized mechanized systems, computer and communication networks, software programs, computerized data, content transferred by computer, traffic and control data, and the users of all the above.”[25]

How do States Emerge in Space?

The political process of coping with phenomena eroding the sovereignty of the state can be divided into three:

1. State-building, which includes the processes of territorial demarcation and the creation of enforcement capability.

2. State construction, which includes the establishment of the national and international legal authority.

3. Nation building, also known as national integration, which includes internal and international legitimacy.

State building is a process that describes the emergence of the state’s physical dimension, in relation to the space in which it operates. Its physical dimensions include its definition (territory, population), use of capital (resources and economic management) and provision of security (monopoly on the use of force).

State construction is a process describing the emergence of the social-institutional dimension of the state, the political institutions which the state uses to control the physical dimension. State construction emphasizes the symbolic and normative means at the state’s disposal (legislative institution, legal system, official communication networks, education system, etc.).

Nation building is the process of creating the ethical/ideological dimension of the state. It is the outcome of a national interaction between a society/population in a defined territory and the state establishment. The synthesis of the three components allows us to simplify the theory and to create criteria by which we can examine test cases and analyze precedents of state sovereignty either being established or eroded.[26]

As illustrated in chart no. 1, the various processes reflect two apparently contradictory movements. They are tangential to each other, and can exist in tandem (even if one has not been completed).[27]

But they also reflect sequentiality. That is, the second process cannot precede the first. Thus, for example, state sovereignty is an expression of the establishment of institutions (defense, legal, economic, etc.); the institutions are based on authority; authority is based on legitimacy, meaning social consent to state authority, often as nationalism.[28]

As previously stated, this article relates only to the national security aspect of sovereignty, and to the state’s attitude to new spaces as “frontier” or “border” areas. This assumes that the establishment of enforcement capability in realms both physical and virtual is the foundation for a series of significant sub-processes, including the establishment of the state’s political authority, its ability to tax the economic activities occurring in cyberspace, and the steps taken by the state to prevent undesirable, or even criminal, activities which do not amount to violence (such as breach of copyright, censorship and freedom of expression, political funding and corruption).

In order to illustrate the similarity between how states dealt with the opening of the seas in the past, and the steps now being taken by states dealing with the opening of cyberspace, I will analyze only the process of state building. I will focus on the steps taken for territorial delineation, and for the imposition of the state’s monopoly on cyberspace.

A Comparison of State Building Processes: The Maritime and Cyber Realms

Economy, Security and Territory

The process of state building is defined as steps promoting “territorial delineation, centralization, differentiation of means of government, and achieving a monopoly on the use of force.” Therefore, it is associated with the material, or “geopolitical,” aspects of the state - territory, population, resources, and (physical) security. It also describes the establishment, development, and institutionalization of infrastructure, and “the distribution of work” in the space in which the state exists, or in which it expands.

These aspects can be defined as the constitutive attributes of sovereignty, because they establish the institutional components enabling the state, by means of the institution of sovereignty, to act later to establish processes for social and ideological construction. Therefore, this process should occur before state construction and nation building.

Consequently, the three fundamental sub-processes, which taken together form the process of state building, are: Definition and demarcation, expressed in two inter-dependent, parallel processes, defining the territory of the state or the sovereign entity, and agreeing on what is (and by definition, what is not) the population associated with that territory; security, achieved by creating a monopoly on the use of force, and the ability to mobilize resources to counter external threats; and capital, achieved by accumulating material resources and exploiting services, alongside the development of processes of economic management.

This article will relate only to the first two processes.

Territory: Definition, Demarcation and Preservation of Territory as a Whole

A central element of state building, being the first expression of survival in space and time, is the definition and demarcation of territory and population. The initial assumption is that the most basic, fundamental element is the process of demarcation, both of territory and of population,[29] leading to a permanence in time and space. Only after its completion and survival for a length of time - both internally and internationally - does the state gain the sovereign independence to make use of its resources, and to establish its monopoly on the use of force in order to administer security.[30]

This supposition is based on the historical process of the development of the modern state, with an emphasis on the formulation of the sovereignty arrangement in Europe. This was expressed in the change from a heteronymous sovereignty to territorial sovereignty, defined as a legal segregation of territorial units for the purpose of judicial and moral independence.[31] The Peace of Westphalia of 1648 which brought Europe’s Thirty Years’ War to a conclusion, whose significance is in the recognition of the sovereign and judicial independence of states in their defined territory, is cited in many studies as the concluding act of this process, or as a formal step of the utmost symbolic significance.[32]

From a practical point of view, all sovereign activities are based on the territorial definition, which serves as the primary set of rules by which the state acts, and by which it is able to impose policy and political resolutions. On the international level, it is only by means of the establishment of a system of independently sovereign states, each operating within its own defined territory, that a state can separate the international from the national system, thus establishing a basis for legislation and national decision making.[33] Therefore, the state’s aspiration for a monopoly on the use of force requires first the delineation of territory, before the widening of the monopoly to the use of force outside its borders.[34]

After the demarcation of territory, the preservation of territorial integrity has been the main element characterizing the modern international system since the 17th century,[35] and especially in the 19th and 20th centuries. The preservation of territorial integrity has been based on a system of nation states, and displayed its significance in the fundamental principles of the most central international, government institutions.[36] The UN charter emphasizes this: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”[37]

As this article deals with the relations between the state and a new space that challenges its sovereignty, it is important to understand the mechanisms implemented by the state for the purpose of demarcating its borders, namely acts of territorial expansion and contraction. These mechanisms are expressed in the realm of international law, through rules relating to changes in the territorial definitions of states, based on the concept of territory as the property of the state.[38] International law formally allows for five avenues for the expansion of a state’s territory, based on legal precedents - discovery and effective occupation, exploitation, annexation, inheritance and accumulation.[39] The aforementioned process of border delineation is a significant precursor to these acts. States must reach agreements on the method of border delineation, and on the validity of a “common geographic language,” an important pre-requisite for international trade.

A common question in cyberspace research is how one can focus on the processes of territorial demarcation - including expansion and contraction of space - in the cyber realm. This important question is the reason to consider the state’s judicial authority in cyberspace.[40] The relevance of this question arises in the context of globalization, which is an example of the erosion of the state’s authority, especially concerning its borders. The answer to this question is based on the assumption that the state’s expansion mechanisms to new spaces are akin to a state altering its sovereignty, for example by means of mapping and border delineation.

Formulating Borders in Physical Space and in Cyberspace – the Mapping Process

The process of mapping will be analyzed as an example of the state’s ability to establish and to anchor its grip on a space it controls, or a space into which it is expanding. As an example, I will analyze the mapping of the ocean. Mapping is an expression of the creation of institutional order by states, as a result of new accessibility to a space following a technological development.

The new technology allows for states to map the space, thus accessing it and imposing on it the existing geo-strategic and political divisions. Because of competition and political disagreement, it can happen that some reject the new territorial arrangement, and it is the responsibility of the state to enforce it.

It is important to point out the distinction between the three stages that make up the process of spatial building undertaken by the state in the new space.[41] First, there is the “narrow” approach to the state’s conduct, which focuses on describing policy procedures concerning the definition of territory by means of fixing the state’s borders, both through legal measures such as legislation, and through institutional measures such as the establishment of, and changes to, institutions (e.g. legislating a parliamentary law to annex a certain territory).

Second, there is the integrated approach, which relates to the institutional significance of territorial processes, bringing about a conscious change in the conduct of the state’s institutions, and the internalization of its “position” in space. The change is reflected in the ability to mobilize resources, to take economic steps, to create a scale of the state’s activities (for instance, laying railway lines, and joining the peripheral new space, usually, to the center).

Third, there is the representational approach, which relates to the ideal, imaginary dimension, associated with the new space and its imaginary borders (for instance, issuing an official stamp on which a reference is made to the newly-annexed area). This approach relates as well to the implications of this dimension on the national and international political conduct in relation to existing and new territory (including war).

On one hand, the preservation of the state’s patterns of spatial organization in new spaces contributes to its ability to optimize their economic use. On the other hand, the organization of the spatial order is limited, so states are required to duplicate themselves into new spaces.[42] Thus, combined with the influence of globalization which erodes their territorial sovereignty and borders, it is states that structure the development of global space in such a way that suits the existing division of territorial sovereignty, but is also required to expand; these are processes of re- and deterritorialization.[43]

The division of a new space according to state territories is a significant expression of the existing authority of states in the international system, which is applied by mapping and arranging borders. Mapping is a highly-charged social and political act, which includes defining and excluding political entities, and which contributed historically to the establishment of the existing system of international sovereignty in contrast to the continuum of city-states that existed in the Middle Ages.[44]

This happens by means of three mechanisms- the homogeneity of the territorial unit; the pure, linear dimension of political borders; and the eradication of anti-territorial entities (e.g. pirates, hackers, etc.). The very act of standardizing measuring tools for the process of mapping created, in effect, a singular international political language, and brought about a revolution in the concept of space as homogenous and territorial.[45]

However, it should be noted that the authority to draw maps, and through them to impose international spatial awareness, is not the automatic right of any state. The geopolitical status of a certain state at a particular moment in time (historical or present) in the framework of a system of nations[46], has a direct influence on its ability to act in such a meta-political manner. The act of dividing space by means of mapping it into state territories is, therefore, an application of the greatest “soft” power. It reflects an international hierarchy, and differentiates between global powers and other nations, including regional powers, protectorates and satellite states. This is based on the theory that inter-state legitimacy is the basis for an international hierarchy.

Therefore, on the one hand, it is the global powers, supported by a large number of states (for a variety of reasons, including material or ideological), who have the authority to determine “political borders” within the international system. On the other hand, it is in the interest of the powers to preserve this institution of international sovereignty, because it safeguards the political authority that gives them the legitimacy to act meta-politically to shape the global system of states.[47] This comes about by influencing the division of territory (“drawing up maps”)[48], and preserving the system of sovereign states as a political and institutional expression of this division.

The comparison between processes that are taking place in cyberspace with similar ones that have taken place in the physical world, brought into existence when the need arose to reshape political territory, illustrates the process of state formation as described above. The historical examples in the physical space of the application of the importance of delineating and defining territory are particularly noticeable in the processes of colonization following the technological developments which enabled long-range ocean transport.

In addition, decolonization processes in the modern world, through which global powers’ control over territories shrunk, and new nations were created, while preserving the existing borders fixed by the powers, and validated by nationalist claims, also serve as an illustrative example.[49] Preservation of colonial borders by states that had just been freed from colonialism, is an expression of the significance of conserving the territorial integrity of states, in accordance with “The Territorial Integrity Norm.”[50] This international norm gained attention on account of the latent potential of the breakup and creation of states, for substantial changes in the definition and demarcation of territory. The potential was not realized, and it seems that revisionist steps (such as military coups, and recognition of new nations) too, in the international system, do not substantially influence the basic outlines of the political division of space.

Similarly, the potential for creating a non-political division in cyberspace has not been fulfilled, and currently it is subject, at least in terms of infrastructure, to the accepted geo-strategic political division, as is evidenced by the system of Domain Name Services (DNS), about which I will elaborate later.

The norm established in the second half of the twentieth century, following the world wars and the consolidation of democracy, does not represent a concept of total abstention from invading territories of other nations, but rather the readiness of nations for an international arrangement that includes an aspiration to abstain from border conflicts.[51] These norms were later anchored in international law, under the Latin name, “Uti Posseditis Juris” (loosely translated – “As in your possession under the law”).[52] The fact that these norms were established both through the process of decolonization as well as through international conflict[53] is significant in order to comprehend the process of delimiting territory in cyberspace.

This is because even the territorial representation of borders implied by the norm was validated by a renewed division of the space by the superpowers (USA) and by cyber conflicts in recent years. The importance of the norm, whose validity is based on historical and current examples from all over the world (such as the decolonization in Latin America and in the Middle East), stems from two reasons. First, it proves the deep influence of the territorial concept of an international and political settlement (see above) on the political division of new spaces, even when such a division is in opposition to ideological aspirations, “natural border,” or pure economic considerations. Second, it reflects the normative foundation of international law, which in effect indicates the significance of international norms for the establishment of the legal authority of states in the international framework.

In cyberspace, in a manner similar to the colonization process, borders between nations were mapped and anchored, technically, by superpowers, mainly the US. This occurred in accordance with the geopolitical model that existed in the physical space, and within the international hierarchy headed by the US. The main steps devised for the purpose of establishing a base for relations among various states in the realm of cyberspace, including demarcating lines between them (“virtual borders”) based on technology, were mainly undertaken internally by the United States.

The American attempt to establish control over the infrastructures that constitute the grid of cyberspace is expressed in three technological development mechanisms, which have already been granted considerable research attention:[54] 1) Technological development of “Packet Switching;” 2) The development of the unified Transmission Control Protocol / Internet Protocol (TCP/IP), which enables open computer mediated communications among various types of computers; 3) The creation and institutionalization of the internet “Domain Name System – DNS, administered by ICANN, an American semi-governmental organization, operating under the official purview of the American Department of Trade.[55]

 Conceptual Change

The forecast of a sharp rise in the number of internet users led to an initiative[56] to establish the division into domains with literal names in order to establish a “Name Space.”[57] The very use of these terms bears witness to the conceptual change in the vision of those engaged with computer mediated communications, who already see the internet as a space, not just as a means of communication. Thus, the solution offered was a space control and management tool, supervising in fact the names given by means of domain definitions, in effect, sub-administrations which will be preserved in a pool of addresses.[58]

Technically, the solution can be explained by its similarity to regular mail, where the protocol described above serves as the “envelope,” containing the contents of the message (the letter), and the binary and/or named identity attached to it serves as the address. The mail address includes permanent components: an individual addressee, agreed geopolitical division (number of building and apartment, street, city, state) and a numerical code (zip code). Similarly, the domain name system, created to answer a practical need in the transfer of data (electronic mail) to an “individual” endpoint, also contains similar components, reflecting an agreed geopolitical division, and coded by long numeric strings (IP Addresses), describing in binary language the computer’s location.[59]

Deciphering a numeric code is performed by a central deciphering file, known as “The File Zone Root,” linking the numerical code with a “regional” name, known as domain name.[60] The most significant domain names, from an economic point of view, are called “Top Level Domains” (TLD)[61], detailed comprehensively in 1994 in the document FRC 1591, and organize large groups of other domain names, allowing their administration, and/or charging their users fees.[62] The TLD are divided into generic names (gTLD) having the greatest economic significance (for instance, the suffixes .net, .com, .org) and to states’ names (ccTLD) reflecting the global geopolitical division, whose symbols are matched to the international state codes according to the International Standards Organization (ISO) which has been put in charge of international standardization by the UN. This standard, appearing in a document numbered ISO 3166/1, was formulated at the initiative of various states in the world, and it includes a two-letter symbol for each country (e.g. uk, fr, il, etc.).

To sum up the issue of territory mapping and delimiting, barring a few exceptions, the technological supervision mechanisms outlined above, validated in practice the cyber application of the accepted geopolitical borders, by technical and bureaucratic means, anchoring them with national and international legal procedures.

In greater detail, many similarities can be found by comparing the domain name system with territorial norms in the processes of decolonization, which, in the main, bear witness to the creation of the state in space by applying the internationally consensual existing geostrategic demarcation. The domain name system, used by most users of the common channels of computer mediated communications, is the clearest and most convincing expression of the duplication of the traditional, geopolitical, territorial division into cyberspace. Both in the case of de-colonization, and in cyberspace, there has been no attempt at creating a new system of division, but rather an attempt to validate the “territorial” political responsibility in the new space, consequently creating a sense of “National Space” (cyber or physical), which is an additional, parallel expression of the territorial foundation of a state’s sovereignty.

The significance of this division, whether in cyberspace or in a physical space is not just technical, rather it acts precisely like the borders created during the decolonization process, as an important tool in creating a barrier between one political entity and another, a barrier on which all the states’ political acts are based in cyberspace (economic, security, etc.). The new border that has been created is an institution in its own right, the foundation for institutional changes such as the establishment of new bureaucratic entities, legislation and security doctrine.

Monopoly on the Means of Enforcement – About Pirates and Hackers

The historical example of piracy will be analyzed as an example of private, violent initiatives challenging the sovereignty of states in a space to which access was not previously possible. Pirates are defined in international relations studies as, “Stateless people whose maritime activity does not take place in the name of any state.[63] ”The most important characteristic is the fact that they are a party that acts violently, for a long time, and in a determined manner against the state monopoly on the organized use of force.

Although piracy as a form of organized crime has been in existence from the beginning of the Middle Ages right up to the present day, two distinct historical periods of conflict between the trading powers and the pirates are usually defined - the Berber pirates that were active in the Mediterranean Sea, from the coasts of North Africa, from the sixteenth century up to the beginning of the nineteenth century; and the buccaneers who were active in the Caribbean Sea against the colonial powers between the seventeenth and eighteenth centuries.[64] These phenomena are worthy of comparison with the phenomena eroding the sovereignty of states today, because in their times, the pirates were active in realms in which the states could not yet fully act.

The sociological and ideological characteristics of the pirates in these periods were significant, for in addition to their violent conduct, their organization into non-national groups was a great attraction for individuals and groups that were not accepted, at that time, in the states for a variety of reasons (religion, gender, race, etc.). They acted democratically, according to a voluntary code of behavior, formulated by them, and were not subject to any national identity or definition whatsoever. Their activity was motivated by individual and group economic interests, and they harbored no ambitions for a place in the relationships between states at the time.[65] The states’ attitude towards them was characterized by their perception of the pirates as a special and dangerous phenomenon, not directed against any particular nation, but rather an affront to all states together. That is, as “Enemies of all Humanity.”[66]

This perception, led to an approach which saw the treatment and destruction of the pirates as a common interest of the super-powers and various nations. This, in turn, facilitated the creation of defense pacts, and later the establishment of norms and codes of conduct anchored in international law (maritime law, and law of military conflict).

After the demarcation of the political community within the state, with the emphasis on the demarcation of territory, the attempt to attain a monopoly on the means of enforcement, or organized use of violence, in that “defined area” is the most common explanation for the process of the establishment of the state’s sovereignty, and for the creation of the modern state system. This process of forming a monopoly over the means of the organized use of violence, has typified the modern state in Western Europe since the end of the Middle Ages.[67]

On the one hand, it included the historical process of unification and consolidation of all organized purveyors of force under the state, as an essential element in the establishment of the modern state. On the other hand, a process of mutual construction was begun between the violent entrepreneurs, who both engaged in crime and exploited the state, and represented the manpower pool from which the state recruited those enforcing its monopoly on the means of enforcement (from pirates to privateers, from criminals to mercenaries, and finally, soldiers), releasing them later to the “free market.”[68]

This is a historic process that has repeated itself, in recent centuries, since the age of colonialism- economic entrepreneurs act as pioneers in a new space, without any state regulation; consequently, due to the increase in economic activity, they are required to enact regulations; finally, they drag the state into the new space, in order for it to impose its monopoly on the means of enforcement. There is a variety of historical examples, from European colonialism in Africa,[69] up to the expectations from economic entrepreneurs in cyberspace for a “self-settlement.”[70]

As for the maritime realm, it applies almost in its entirety the historical process described above. The development of technology at the end of the Middle Ages enabled the construction of vessels sufficiently sophisticated and robust to expand the space in which humans could act, directly enabling the establishment of colonies and lively maritime commerce. The increase in the centrality of economic interests at sea, and the absence of any international agreement to conduct at sea, made piracy extremely worthwhile, and turned the pirates into an exceptional phenomenon, in that they existed continuously on a massive scale for several hundred years.

The activities of the Berbers in the Mediterranean Sea were not curbed by Spain, the commercial power of the time, because it was not possible to generate sufficient legitimacy for international steps to be taken against them, and because an alternative partial solution was found – it was possible to “police” some of the pirates, either by buying their loyalty (and converting them into “privateers”), or by reaching an agreement with the North African states (Tunisia, Algeria) by which they would take the pirates under their control. As opposed to Spain, several hundred years later the British eradicated the phenomenon, both in the Mediterranean against the Berbers, and in the Caribbean against the buccaneers. This action was made possible by the ability to act in conjunction with other states, and the refusal to legitimize the pirates’ continued activities by agreements and bribery. One of the significant steps in this context was the use of privateers to fight the pirates.[71]

The legitimacy of the use of power by states, nationally and internationally, is, therefore, one of the main achievements due to the monopoly on organized violence, but it does not mean that sub-state, or super-state, players, cease to use force. Rather, the opposite. It enables the state to determine which type of use of force is perceived as not endangering the state’s monopoly, hence “partially legitimate” and not requiring total suppression, neither, in general terms, from a normative point of view, nor from an empirical angle in cyberspace today.

From a normative point of view, an activity is declared illegitimate when the state by its sovereign authority declares it forbidden for individuals, and permissible only for the state itself.[72] In this context, similarly to the privateers, we should mention the use made by the states of violent entrepreneurs, such as organized criminal gangs, private militias and security companies, terrorist organizations and hackers, by their institutionalization, and by granting legitimacy to their activities, taking place under the patronage of the state. 

The state's ability to use parties previously considered to be undermining it expresses and strengthens the meta-political authority of the state to determine the rules of the game, and to turn violence into a legitimate use of force.[73]

Empirically, cyberspace is no different from historical and present-day challenges posed by violent entrepreneurs to the state in the physical spaces. Sub-state and super-state parties that challenge the monopoly on violence - private militias, pirates, mercenaries, and criminal organizations- turned into sources of manpower required to preserve the monopoly on violence when the state purchased their services, contained and institutionalized them into professional armies, on land and on sea, and even made use of them to destroy rebellious, violent entrepreneurs (such as the use of privateers to fight the pirates).[74]

In a similar manner, hackers and criminal organizations using cyberspace to make illegal profits are potential forces that can act to realize the state’s interests at different levels of coordination with it. This phenomenon is known as “patriotic hacktivists,” who support the state's (or other political entity's) policies and activities in attacking internet sites and institutions of other states, at various levels of coordination with and guidance from the state.[75] According to Diagram no. 2 on the change in the use of violence in cyberspace, the change from violent activities carried out by individual, violent entrepreneurs not acting on behalf of any state, such as the “Morris Worm” in 1988, or the criminal gang known as “414” arrested in the US in 1983, to state or semi-state actions, reached its peak in the first decade of the twenty-first century. Examples of such steps can already be found in the attack on NATO and US web sites during Operation Allied Force” in 1999,[76] but especially in the attack on Estonian government sites by Russian nationalistic hackers in 2007,[77] and during Russia’s military invasion of Georgia in 2008.[78] A further example was the attack on internet sites of Israeli public institutions by supporters of Hamas during Operation Cast Lead in Gaza in December 2008.[79]

The importance of the monopoly on the use of organized force emphasizes the problematic implications of a situation in which there is an absence of security, one of the main symptoms of states which are in the process of collapse.[80] A situation of oligarchy, or a multiplicity of organized violence monopolies, is the foundation of a lack of governance, leading to the failure of the state.[81]

Historically, it appears that a long bottom-up process in which the state acted to defeat its competitors for the monopoly on enforcement, as in the European case, led to a state of “positive sovereignty” on the oceans. While the opposite situation, in which sovereignty is bestowed on a state as a result of a formal, political, legal, international top-down decision, as occurred in the de-colonization processes, when there are still significant competitors breaking the state’s monopoly, leads to a state of “negative sovereignty,” creating in turn a situation of “quasi-states.” Not surprisingly, in failing states of this sort, phenomena such as pirates are still found.

In democratic, liberal states today, there is still a means of enforcement and organized violence alongside the continued existence of subversive phenomena and players undermining this monopoly, as the state does not generally feel the need to mobilize the resources required to defeat them completely, because they are not perceived as endangering the existence of the state monopoly.

So, it is in cyberspace, embodying, just like physical spaces, challenges to the state’s security in the form of cybercrime, other state activities and terror, alongside an intensive activity of the state to generate security and other capabilities, to collect intelligence, defensive and offensive, with which to balance the sense of threat to the functionality of the state, while not necessarily leading it to a "quasi-state" situation in cyberspace.

Summary and Implications for the Future

The relations between a state, space and technological developments are a recurring pattern in the modern, international system in general, and in the development of political control and security systems in particular. Without the development of maritime and aerial platforms, there would have been no need to define a political, territorial space in the air and sea, while creating the national and international legal authority to establish norms and international settlements, and the development of symbols to create national legitimacy of these spaces.

Although these are new technologies, what we discuss are recurring patterns, which can be analyzed by known elements of the historic development of the state. In this article, I chose to illustrate this by means of a description of the processes of territorial demarcation, and the imposition of the monopoly on organized violence, each of which has empirical expressions in cyberspace, and on the sea.

The feeling shared by many within the general public, and among decision-makers, is that the inability to impose state sovereignty in cyberspace, and the negative potential for state security, partly emanates from the difficulties of the state’s planning system, and from a rigid concept of state sovereignty. These difficulties themselves bear witness to the state’s adaptation processes to new technologies and new territories, the fate of states since the birth of civilization, and should not discourage statesmen and government officials. As stated, a state’s sovereignty is dynamic and often challenged, as it was in spaces currently controlled, such as the oceans. The understanding that cyberspace is just another challenge that the state is facing in similar dimensions is spreading in recent years, and beginning, slowly, to change the perception of the bureaucracy.

This article presented criteria for the analysis of political processes in a realm historically founded on the sovereignty theory of political science and international relations, which can serve as tools for a long-term study of cyberspace, and provide initial directions for the formation of policy in cyberspace. The possibility of making use of an empirical, theoretical, historical comparison is a required method to establish these criteria, to develop them and to turn them into significant tools of decision making. I hope that this article will encourage the use of historical comparisons of this nature, between cyberspace and other realms, as an instrument to promote the state’s capability to impose its sovereignty in the new realm.

A new generation of officials, lawyers, statesmen and army officers is required to confront the new challenges posed by cyberspace. We need professionals who understand, on the one hand, the importance of cyberspace for the continued economic, social and security existence of states, and refuse, on the other hand, to surrender to the perception of cyberspace as negative and anarchistic. It is possible that we are witnessing in recent years the first signs of renewed bureaucratic and political activity of this nature, discernible in the establishment of designated security and enforcement institutes, including the National Cyber Headquarters in Israel, and the US Army Cyber Command. The sooner the legislative, executive and judicial branches realize that the known political, territorial and security rationale is the central expression of the state’s establishment in cyberspace (including its unique technical characteristics), the easier it will be for all state systems and international institutions to improve their activities surrounding cyberspace, and to adopt a political strategy similar to the one that exists in physical spaces, while making the tactical adaptations required by cyberspace.

[1] Major Amit Shiniak is currently a section head in the department for international, military cooperation of the IDF’s planning branch.

[2] S.D Krasner, "Abiding Sovereignty," International Political Science Review 22 No. 3 (2001): 245-247.

[3] Ibid, 239-245; H. Spruyt, The Sovereign State and its Competitors (1994):4.

[4] Krasner, "Abiding Sovereignty," IPS Review, 240.

[5] Ibid.,. 243; D. Philpott “The Religious Roots of Modern International Relations,” World Politics 52, No. 2 (January ,2000): 206-245; D. Philpott, Revolution in Sovereignty (Princeton: Princeton University Press, 2001); J. R. Strayer, On the Medieval Origins of the Modern State (Princeton: Princeton University Press, 2005).

[6] JJ. E. Thompson, “State Sovereignty in International Relations: Bridging the Gap between Theory and Empirical Research,” International Studies Quarterly 39, No. 2 (June 1995): 213-233; J. T. Mathews, “Power Shift,” Foreign Affairs 76, No. 1 (Jan. - Feb. 1997): 50-66; R. Rosecrance, The Rise of the Trading State (New York: Basic Books, 1986); C. Tilly, Coercion, Capital, and European State AD 990-1990 (1995).

[7] O. Lowenheim, Predators and Parasites: Persistent Agents of Transnational Harm and Great Power Authority (Ann Arbor: The University of Michigan Press, 2007); O. Lowenheim, “"Do Ourselves Credit and Render a Lasting Service to Mankind": British Moral Prestige, Humanitarian Intervention, and the Barbary Pirates, ”International Studies Quarterly 47, No. 1 (Mars, 2003): 23-48; J. E. Thompson, Mercenaries, Pirates and Sovereigns: State Building and Extraterritorial Violence in Early Modern Europe (New Jersey: Princeton University Press, 1994).

[8] D. Avant, “From Mercenary to Citizens Armies: Explaining Change in the Practice of War,” International Organization 54, No. 1 (Winter 2000): 41-72; T. Lynch and Walsh A.J., “The Good Mercenary?” The Journal of Political Philosophy 8, No. 2 (2000): 133-153; L. W. Serewicz, “Globalization, Sovereignty and the Military Revolution: From Mercenaries to Private International Security Companies,” International Politics 39 (March 2002): 75-89.

[9] O. Lowenheim, 2007 (1); V. Volkov, “Violent Entrepreneurship in Post-Communist Russia”, Europe-Asia Studies 51, No. 5, (1999): 741-754.

[10] B. R. Barber, Jihad vs. McWorld: How Globalism and Tribalism are Shaping the World (New York: Times Books, 1995); M. Van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University Press, 1999).

[11] J. A. Pemberton, Sovereignty: Interpretations (Hampshire: Palgrave Macmillan, 2009)

[12] L. K. D. Kristof, “The Nature of Frontiers and Boundaries,” Annals of the Association of American Geographers 49, No. 3 (September 1959): 269-271.

[13] Ibid. pp. 271-274.

[14] S. D. Krasner, “Sovereignty: An Institutional Perspective,” Comparative Political Studies 21 (1988): 87-88; F. Kratochwil, “Of Systems, Boundaries, and Territoriality: An Inquiry into the Formation of the State System”, World Politics 39, No. 1 (October, 1986): 27-28.

[15] L. K. D. Kristof, 1959, 281-282.

[16] M. B. Salter, “Passports, Mobility, and Security: How smart can the border be?” International Studies Perspectives 5 (2004): 86-88.

[17] The book was preceded by a short story, “Chrome Burning,” published in 1982, where the concept was first mentioned.

[18] W. Gibson, Neuromancer (New York: Ace Books, 2000 [1984]): 61-62.

[19] Ibid. p. 60.

[20] M. A. Lemley, “Place and Cyberspace”, California Law Review 91, No. 2 (March 2003): 523.

[21] It should be pointed out that end points are not necessarily equal; they could be an individual user, or a whole organization. R. Kedzie, “The Third Wave,” in: B. Kahin and Nesson C. , Borders in Cyberspace (Cambridge: MIT Press, 1997) : 111.

[22] Packet switching is a digital networking communications method that groups all transmitted data into suitably sized blocks, called packets, which are transmitted via a medium that may be shared by multiple simultaneous communication sessions. Packet switching increases network efficiency, robustness and enables technological convergence of many applications operating on the same network. See https://www.wikiwand.com/en/Packet_switching

[23] T. Ashuri, From the Telegraph to the Computer AHistory of Electronic Media (Tel Aviv: Resling, 2011):38-133

[24] Thus, for example, argues Goldsmith in his paper which was already granted a canonical status amongst internet scholars: "Activity in cyberspace is functionally identical to transnational activity mediated by other means, such as mail or telephone or smoke signal."
 

[25] Decision 3611 of the 32nd Government of Israel: The promotion of the national capability in cyberspace (2011).

[26] Sovereignty establishment can be compared to Nettle’s concept of “stateness” (1968), and sovereignty erosion to the concept of “Statelessness,” and to the criteria for a functioning state, as opposed to a state in the process of collapse. See, W. I. Zartman, "Introduction: Posing the Problem of State Collapsed," in: W. I. Zartman ,Collapsed States: The Disintegration and Restoration of Legitimate Authority, (Colorado: Lynne Rienner Publishers Inc., 1995): 5.

[27] According to Soja the dimensions are interrelated. E. W. Soja, Postmodern Geography: The reassertion of space in critical social theory (London & New-York: Verso, 2001): 120.

[28] T. J. Biersteker, State Sovereignty and Territoriality (2002):168-169.

[29] It is not essential for the demarcation of the territory to precede the demarcation of the population. There are historical examples of both types, expressed, for example, in the different processes of nation states (in which the community precedes the definition of territory), and of migrant states (in which territory precedes the definition of the population) building.

[30] C. Tilly, Coercion, Capital, and European State AD 990-1990 (Cambridge: Basil Library, 1990): 1-2; M. Van Creveld, “The Fate of the State,” Parameters 26, No. 1, (1996): 4; E.S. Finer, “State-building, state boundaries and border control: An essay on certain aspects of the first phase of state-building in Western Europe considered in the light of the Rokkan-Hirschman model,” Social Science Information 13, No. 79 ( 1974): 79-80.

[31] Kenneth N. Waltz, “Continuity and Transformation in the World Polity: Toward a Neorealist Synthesis Theory of International Politics,” Review by J.G. Ruggie, World Politics 35, No. 2 (January 1983): 280.

[32] Ibid; D. Philpott, “Westphalia, Authority and International Society,” Political Studies, XLVII (1999) 566-589; A. Osiander, “Sovereignty, International Relations, and the Westphalian Myth”, International Organization 55, No. 2 (Spring 2001): 251-287.

[33] J. E. Thompson, Mercenaries, Pirates and Sovereigns: State Building and Extraterritorial Violence in Early Modern Europe (New Jersey: Princeton University Press, 1994): 17-18.

[34] J. E. Thomson, “Explaining the regulation of transnational practices: a state building approach,” in: James N. Rosenau and Ernst-Otto Czempiel, Governance without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992): 208-210.

[35] M. W. Zacher, The Territorial Integrity Norm: International Boundaries and the Use of Force (2001): 216-234.

[36] A. Osiander, 2001; 281.

[37] The Charter of the United Nations (1945): Article 2.

[38] P. K. Menon, “The Acquisition of Territory in International Law: A Traditional Perspective,” The Korean Journal of Comparative Law 22 (1994): 125.

[39] Ibid. pp. 127-129.

[40] D. R. Johnson and D. G. Post, “The Rise of Law on the global network,” in: B. Kahin and C. Nesson (eds.), Borders in Cyberspace, (Cambridge: MIT Press, 1997): 3-48; J. Goldsmith and T. Wu, Who Controls the Internet? Illusion of Borderless World (Oxford: Oxford University Press, 2006).

[41] N. Brenner et al., “Introduction: State Space in Question,” in: N. Brenner et at. (eds.) State/Space A Reader, (Oxford: Blackwell Publishers, 2003): 6-21.

[42] D. Harvey, “The geopolitics of capitalism,” in: D. Gregory and J. Urry, Social Relations and Spatial Structures (London: Macmillan, 1985): 150.

[43] N. Brenner, “Beyond State-Centrism? Space, Territoriality, and Geographical Scale in Globalization Studies,” Theory and Society 28, No. 1 (February, 1999) : 41.

[44] J. Branch, “Mapping the Sovereign State: Technology, Authority and systematic change,” International Organization: 65, (Winter, 2011): 15-16.

[45] Ibid. 7-8, 12-13, 20-21, 27-38.

[46] A system of states, and in particular those that are not Western, is characterized as nations grouped around a power, and, on a certain level, appear to conduct a relationship of master and subject.

[47] Lowenheim, 2007, 31-32. R. H. Kaplan, “The Coming Anarchy,” in: P. Williams, D. M. Goldstein and J. M. Shafritz, Classic Readings of International Relations, (Pittsburgh: Harcourt Brace College Publishers, 1999): 667.

[49] Zacher, 2001; 216-234.

[50] Ibid. 215-216.

[51] Ibid. 244-248.

[52] R. Silfen, “Uti Possidetis Juris: Same but Different”, The International Law Forum, HUJI, (2009): 13-17.

[53] See the table reviewing all conflicts in which colonial borders were validated between the years 1946-2000 (Zacher, 2001; 225-228).

[54] See for instance Janet Abbate, Inventing the Internet (MIT Press, 2000) ; Marcus F. Franda Lynne Rienner, Launching Into Cyberspace: Internet Development and Politics in Five World Regions (Publishers, 2002); Charlotte Dany Routledge, Global Governance and NGO Participation: Shaping the information society in the United Nations (Routledge 7 Dec 2012).

[55] See the conclusions of the UN’s WSIS summit in Tunis in 2005, where it was decided in effect to leave the ICANN organization as the entity administering the world system of domain names, and to found the IGF forum through which states act to influence its policies (United Nations. 2006 8).

[56] The initiative was published in RFC 882 in 1983, and RFC 920 in 1984, by a network work group (NWG) which was still active under the U.S. Department of Defense’s APARANet project.

[57] P. Mockapetris, "Domain Names - Concepts and Facilities," RFC 882, 1983: 1-2.

[58] J. Postel and J. Reynolds, "Domain Requirements," RFC 920, (1984): 1 ; Mockapetris, "Domain Names - Concepts and Facilities," RFC 882, (1983): 5.

[59] H. Feld, “Structured to Fail: ICANN and the ‘Privatization’ Experiment” (2003) In: A. Thierer and W. C. Clyde Jr., Who Rules the Net? Internet Governance and Jurisdiction (Masochist: Cato Institute, 2003): 345.

[60] E. Rony and P. Rony, The Domain Name Handbook: High Stakes and Strategies in Cyberspace (Kansas: R&D Books, 1998.)

[61] In this context, some argue that there is a legal parallel between domain names and trademarks, which are bound together by international agreements to protect rights of ownership.

[62] J. Postel, "Domain Name System Structure and Delegation," RFC 1591 (1994).

[63] Thompson, 1994, 144.

[64] O. Lowenheim, 2007 , 18-19.

[65] Peter Lamborn Wilson (Hakim Bey), T.A.Z, Autonomedia (June 1, 2003).

[66] O. Lowenheim, 2007, 81-82.

[67] E. S. Finer, “State-building, state boundaries and border control: An essay on certain aspects of the first phase of state-building in Western Europe considered in the light of the Rokkan-Hirschman model,”( 1974): 85; C. Tilly, “War Making and State Making as Organized Crime,” in: P. B. Evans, D. Rueschemeyer and T. Skocpol, Bringing the State Back In, (Cambridge: Cambridge University Press, 1985): 171- 175.

[68] Tilly, 1985; 173.

[69] Thompson, 1995, 216.

[70] M. L. Mueller, Networks & States: The Global Politics of Internet Governance, (MA: MIT Press, 2010).

[71] O. Lowenheim, 2007 (1), 14-16.

[72] Thompson, 1992, 217.

[73] C. Tilly, The Politics of Collective Violence (United Kingdom: Cambridge University Press, 2003): 27.

[74] For more details, Lowenheim, 2007.

[75] J. Healey, A Fierce Domain: Conflict in Cyberspace, 1986 to 2012 (CCSA Publication, 2013): 44. For a typology of cooperation of states with independent hackers, see Healey, table 3.

[76] Ibid.

[77] Ibid. p.62.

[78] Ibid. p. 63.

[79] J. Carr, Inside Cyber Warfare (CA: O’Reilly Media, 2009): 47-50.

[80] R. I. Rotberg, State Failure and State Weakness in a Time of Terror (Washington DC: Brookings Institution Press, 2003): 1-11.

[81] H. R. Jackson and C. G. Rosberg, “Why Africa's Weak States Persist: The Empirical and the Juridical in Statehood," World Politics 35, No. 1 (October, 1982): 3. 

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