‘Splinternets’: Addressing the renewed debate on internet fragmentation

Cette publication disponible en ligne est le rapport du projet de recherche Splinternet, financé par le Parlement européen et porté par le groupe de travail Gouvernance et régulation d’Internet du GDR Internet, IA et Société.

L’étude réalisée a été présentée le 9 juin 2022, au Panel for the Future of Science and Technology du Parlement européen et enregistrée.

Clément Perarnaud, Julien Rossi, Francesca Musiani, Lucien Castex, 2022, “‘Splinternets’: Addressing the renewed debate on internet fragmentation”. Report commissioned and published by the Panel for the Future of Science and Technology (STOA) of the European Parliament. Released 11 July 2022.

EN. Recent debates around the growing fragmentation of the internet and the emergence of ‘splinternets’ have raised the issue of an increasing divergence of internet standards and protocols.

By its very nature, the internet is a collection of fragmented networks, but these networks and the services provided on top are nonetheless able to provide the experience of a seamless, open, united and interconnected online public sphere. This is in large part due to properties of interoperability and interconnection provided by open standards and formats, standardised by bodies such as the Internet Engineering Task Force (IETF) or the World Wide Web Consortium (W3C). The domain name system (DNS) is also pivotal in supporting this one, global internet. However, several factors may disrupt this fine balance between divergence and convergence of the internet as a ‘network of networks’. Users are threatened by ‘enclosure’ into technological walled gardens, and by the creation of splinternets that can no longer interact with other networks, not only at the application layer, but also at the layers of protocols and physical infrastructures, further removed from the users’ perception and reach’. Fragmentation can be total or partial. It can happen at the transport layer of the network, or because of incompatible applications and formats. It can also be caused by technological, political or commercial factors.

Indeed, forms of fragmentation and divergence can be observed at specific nodes of certain layers of the internet, with sometimes great implications for its global architecture and the compatibility of its systems, while the experience of internet users also appears to diverge increasingly based on profile, location and devices.

The layered and distributed architecture of the internet, means that patterns of fragmentation can take various forms and their observation requires a dynamic and graduated approach. Indeed, a wide constellation of actors and processes constantly shape the technical arrangements on which the internet relies, and have direct effects on the public sphere resulting from this infrastructure and its uses.

Drawing on an analysis of recent patterns of divergence of internet standards and protocols, differentiated in function of their underlying technological, commercial and political root causes, this report explores the implications of EU’s recent policies in this field as well as the opportunities and challenges for EU Member States and institutions in addressing the so-called phenomenon of internet fragmentation.

Building on the latest scholarship in the field of internet governance, it identifies and illustrates core threats to the development of a unified internet. These include a range of processes and developments, such as technical factors fuelling forms of technical splintering, a reduction in the flexibility of networks (or internet ossification), growing organisational concentration in internet governance, consolidation of the internet architecture and digital economy, and the process of alignment of the internet with territorial borders.

In relation to these challenges, the EU’s legislative agenda can be seen as a driver for positive opportunities, but also as a potential catalyser for the worsening of the very same threats. Both internally and externally, the EU has repeatedly committed to promote the development of a single, open, neutral, free, secure and un-fragmented network, while adopting a more strategic approach to the making process of internet standards and protocols. The report underlines how ongoing EU legislative proposals – on the digital services act, the digital markets act, the artificial intelligence act, and the NIS 2 Directive – have the potential to help address patterns of divergence, but also describes how their limitations and unintended consequences need to be addressed in order to ensure the coherence and consistency of the EU’s action in this increasingly strategic field.

Through a variety of policy initiatives and instruments, the European Union also affects this balance. Despite the Open Internet Regulation (2012/2120/EU), the EU’s overall approach lacks consistency. Some measures affect connectivity negatively, often in the name of digital sovereignty: examples of this tendency are the drive towards a sovereign, regional European cloud, which would allow the data of European users to be shared and circulated only within Europe and not be subject to the United States’ more lenient privacy laws.

Other measures are supportive of an open and universal internet, like those favouring competition between private actors, enshrining principles of network neutrality or promoting interoperability and data portability, or supporting, through dedicated research funding programmes, the elaboration of distributed and decentralised network architectures. This indecisiveness can be explained in part by the fact that – somewhat surprisingly – internet fragmentation is still in its early stages of political problematisation, despite having been the topic of regular speculations and occasional fears among a few actors.

This report reviews several recent or current policy initiatives within the framework of the digital single market (DSM), and analyses key features of existing legislation affecting this tension between fragmentation and unity. We outline several possible strategies to promote a consistent way for the EU to approach this subject matter: maintaining the status quo, embracing fragmentation, or consistently fighting fragmentation. We review each of these scenarios against rules laid out in international trade law and the EU Treaties, looking especially at the compatibility of each scenario with requirements laid out by the EU’s Charter of Fundamental Rights, but also the impact each scenario may have on the continued functioning of the internet.

Each of the three scenarios had significant drawbacks from the point of view of the EU’s legal obligations in general, and fundamental rights in particular, or were insufficiently consistent. As such, we also outline a fourth option: framing the debate on internet fragmentation as a matter of fundamental rights, composed of both negative and positive obligations. We propose a framework that applies a proportionality test to each limitation to the unity of the internet, ensures that private actors do not limit these same rights and freedoms, and promotes accountability while accepting limitations to the ability of state-actors to impose standards and manage telecommunications infrastructure as part of a modern system of checks and balances in the network society.

The report is based upon a number of interviews of key experts and stakeholders to gather their experience and opinions. We have paid particular attention to include a variety of standpoints with a multi-stakeholder perspective including institutional representatives, academics, technical community key actors, civil society, private sector, and associations supporting online civil liberties. In addition to individual interviews, several of these experts were gathered in a day of online workshop on 15 February 2022, which included a research-oriented and a practitioner/stakeholder-oriented session.