We know that the election of President Trump led to a rush by US western allies to increase defence expenditure and begin the long effort to reduce reliance on US military strength.
The same is happening in the digital sphere. We are equally reliant on US companies for our digital infrastructure – and the threat of potential withdrawal has led to a scramble towards what is known as digital sovereignty.
Something which exemplifies the weakness of US allies affects a court based in the Netherlands – the International Criminal Court (ICC). In February, the White House issued an executive order against the ICC, specifically targeting the chief prosecutor, the British KC Karim Khan (pictured).
The Law Society responded, in conjunction with other legal professional bodies around the world, saying that ‘the US sanctions against the ICC represent a flagrant disregard for the fundamental principle of the rule of law, the bedrock of freedom and justice worldwide’.
This article is not about human rights, but about digital sovereignty. That is because one consequence of the executive order was that Microsoft, a provider of digital services to the ICC, cancelled the chief prosecutor’s email address. It feared facing penalties for providing services to a sanctioned individual (Khan’s UK bank accounts were also blocked).
Microsoft has since taken steps to protect individuals at the ICC. When the White House later sanctioned four ICC judges, their email accounts continued – but the damage was already done. European politicians took note of what had happened to Khan and the trend to digital sovereignty became a rush. Just think what mayhem could be caused by the White House if digital services become a tool in trade or other fights. We are all dependent on Microsoft, Apple, Meta, Amazon and so on.
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In the EU, there is the Cloud and AI Development Act, to be proposed by the European Commission in due course (and now open to public consultation). This will address the well-known gap faced by the EU in cloud and AI infrastructure. In particular, the law aims to ensure that strategic EU use cases can rely on sovereign cloud solutions, with the public sector playing a crucial role as an ‘anchor client’ for them. Cloud infrastructure will be fast-tracked and preferential access to European cloud service providers may be given in public procurement procedures.
There is a corresponding report making its way through the European parliament highlighting the EU’s dependence on foreign technologies and infrastructure. For instance, the report states that 92% of the west’s data are stored in the US and the EU produces only 10% of the world’s semiconductors. That is just a small data sample of dependence.
We face the same dilemma in the UK and lawyers are part of it. Here, the government wants to give us digital sovereignty in artificial intelligence, in which the UK has been a leading innovator. But to achieve this, the insatiable need of generative AI to swallow up human creations has to be allowed, crossing rules relating to copyright and data protection. The struggle continues.
On the one hand, solicitors are creators, too. The material on our websites – analyses, case studies, law firm information – are all susceptible to being snapped up without our consent, or even acknowledgement of our contribution. Next, we are also advisers to those who want to protect copyright or data.
On the other hand, we have an interest in AI – and all digital services – being homegrown and out of reach of sanctions enforced in another jurisdiction. We want and need digital sovereignty. A British barrister has already suffered consequences from its absence.
The Law Society is managing this balancing act by welcoming the good and pointing out the risks of the bad.
The government recognises these difficulties. Proposals to regulate AI have been delayed by at least a year to allow ministers to plan a comprehensive bill to regulate the technology and its use of copyrighted material.
Part of the difficulty of any balancing act is that whenever UK companies make advances in AI, they are immediately snapped up by US companies. This should cause us to wonder whether the effort is worthwhile. In other words, might we make a sacrifice in allowing some of our intellectual labour as solicitors to be used for building up UK AI capacity – only for a US company eventually to benefit from and exploit it?
Being in the middle of a revolution is never easy, as the various sides slug it out. I hope that we become digitally sovereign, but also that our solicitor creativity is not snatched for nothing as a result.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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