Introduction and context 

The past few decades have seen a rapid rise of digital systems and technologies. The consistent adoption of such systems across various sectors not only drives immense economic value for businesses and nations alike, they also affect social interaction, cultural engagement, and welfare access for individuals placed in varied global or regional contexts. Over time, the scale of digital permeation within critical societal functions and global economic production has increased exponentially. This makes it essential to be intentional about the ways in which digital systems get adopted, and ensure that the larger network of these systems and associated governance structures are poised to leverage its positive potential while accounting for its risks and harms. 

We recognise that digital systems evolve rapidly and cause broad-based impact, leaving regulatory frameworks to play catch-up. For many years the policies around such technological developments were oriented for enabling growth and expansion, with governance focused on equity, sustainability and resilience appearing in regulatory priorities more recently. The emergence of the internet, and present understandings on building a network of interconnected digital systems as with the internet of things, identity systems, or data exchange models, have resulted in additional externalities that significantly affect people, society, markets, and environment. 

In such a context, the prevailing ways of thinking about the technologies and the strategies on governing their impact inadequately account for the full ambit of harms and opportunities within the digital ecosystem. For instance, there has been a focus on regulating the cloud infrastructure market from the lens of privacy and security, but there is a gap on deepening market oligopolies and threats to environmental sustainability. More generally, there is a need for heightened focus on enabling public interest via digital technologies such that it responds to the essential role of people and regulations towards their effective design, operation, and governance.

We believe that the adoption of an ‘infrastructure’ framing can help address the inadequate governance of the digital ecosystem by opening pathways for improved institutional and community driven action around the wide-ranging and interlinked impacts of digital technologies. To that end, unpacking the critical role that digital technologies have come to perform for societal functions, and the reflexive and relational nature of infrastructures can enable higher State responsibility in the regulation of these systems against concentrated private control with improved structures on claim-making for the public​​. This can be supported by an inquiry into governance strategies implemented for addressing the harms and opportunities within traditional, physical infrastructures, and mapping pathways for the adoption of similar strategies towards common concerns within novel digital infrastructures. Parallely, an exploration of alternative framings that support systems of public accountability in the form of localisation, participation, or decentralisation, as appropriate, emerge as worthy enquiries to prevent purely top-down governance structures. 

Arriving at digital infrastructures 

Terminology around ‘infrastructure’ is not new in the digital ecosystem. It is, however, a scattered notion. The term ‘infrastructure’ itself doesn’t have a clearly agreed upon definition but there are a few commonly recognized characteristics: 

• It is critical – The basic services, without which primary, secondary and tertiary types of production activities cannot function; indeed the role of certain systems as  infrastructure is only visibilised upon their breakdown
• It facilitates further production – A system of interaction of economic agents, ensuring a link between phases of production and consumption
• It is modular – elements can be combined and adapted for customised solutions that are independently developed but seamlessly integrate into the rest of the ecosystem
• It is dynamic and has interrelated components – They encompass dynamic networks and assemblages that enable and control flows of goods, people, and information over space
• It addresses societal needs – The networked assets must be designed to address societal needs, which may be most clearly evidenced in the aftermath of service disruption
• It generates externalities – Their operation leads to positive and negative externalities, which are the indirect benefits or harms of a project that are complex and difficult to predict

Thinking infrastructurally has been studied to enable an understanding of the system as a set of relations, processes, and imaginations. We must not forget that these infrastructural elements are incomplete and unable to function without one other critical component: people. While communities may not fit within the technical notion of infrastructure, there is something to be said for “social infrastructure” that encompasses those involved in the creation and continued functioning of these more technical infrastructures. Taking communities into account when considering governance mechanisms for the aforementioned infrastructures can enable the centering of equity and broader social value in data creation and use.  

Scholars such as Benedict Kingsbury, who runs the InfraReg project for the Institute for International Law and Justice at the New York University School of Law, articulates one well-established approach on infrastructural thinking that brings together the technical (the designed and engineered physical and software elements), the social (the human and non-human actants in their intricate relations), and the organisational (the forms of entity, regulatory arrangements, financing, inspection, governance, etc.). It is only possible to understand the processes of infrastructure, and the consequences or potential of any intervention in infrastructure, by fully exploring each of these and their joint interactions and effects. 

Looking at these characteristics of infrastructure, we have identified four basic ‘infrastructures’ for the digital ecosystem, namely: data, hardware, the cloud, and standards and protocols. These infrastructures play an important role in the data value chain by enabling the movement, collection and use of data, as well as in the larger digital ecosystem, for example the AI value chain. AI models are trained using hardware in the form of microprocessors (or chips). To meet the extremely high volume of computer power required to train AI systems, developers often use cloud infrastructure such as storage, processing, and even services and tools. This hardware and cloud infrastructure is used in tandem to train AI models using vast amounts of data. Standards and protocols determined by global institutions provide an underlying basis that allows for communication between the various systems at play. All of these different infrastructural elements are harnessed by developer communities to build AI models. However, the governance approach around AI models seems to focus more on the models themselves and the datasets used to train them rather than the enabling inputs.

Unpacking harms and opportunities within digital infrastructures 

An identification of the various digital infrastructures and a preliminary enquiry into institutional approach to their governance presents various harms and opportunities that are missed or inadequately addressed within existing frameworks. In the data infrastructure context for instance, the EU AI act attempts to protect artists’ IP rights with opt-out mechanisms and recognition of copyright, but concerns remain on its meaningful implementation​. Additionally, India’s DPDPA and the EU GDPR focus on individual protection but remain lacking in accounting for collective rights​. In a similar vein, with no explicit laws governing cloud computing in most jurisdictions, relevant regulations or executive initiatives tend to focus on optimising for data access, national security, and sharing (as in USA and India)​. Existing governance lays inadequate emphasis on the environmental impact of their operation, or sovereignty and market concentration related risks beyond contractual terms. ​

A deeper study into the common harms or opportunities that appear variedly within the four identified infrastructures surfaces the following larger buckets to consider – 

1. Sustainability and resilience: Challenges related to the ability of digital infrastructure to endure and adapt in the face of evolving demands, environmental pressures, and natural/artificial systemic shocks​
2. Competition and innovation: Risks associated with monopolistic practices, stifling of market diversity, and hindrance to technological advancement within the digital landscape​
3. Individual protections and collective rights: Concerns regarding the safeguards to individual economic interests and personal autonomy, as well as the preservation of collective interests in the digital realm​
4. National security and sovereignty: Risks posed to the nation’s autonomy and security by vulnerabilities in digital infrastructure, including threats of cyberattacks, espionage, or foreign regulatory influence
5. Access and participation: Issues surrounding equitable entry to and engagement with digital resources, encompassing both material access and barriers to meaningful involvement in the digital sphere​

Identifying governance approaches within traditional infrastructures and mapping it to digital 

The buckets of harms and opportunities identified are common to all four of the digital infrastructures, but play out in specific ways for each. To collate the pathways for institutional strategies on infrastructure governance that must be adapted for appropriate digital contexts, we explore the various executive, judicial, and legislative actions adopted within traditional infrastructures​. In our research for this, the five core buckets on harms have been mapped to a traditional infrastructure each, placed within diverse jurisdictional contexts, based on relevance, similarities, and access​. 

For instance, we have examined how executive action (in the form of a government mandate) and legislative action (in the form of the Electricity Act, 2003) in India illustrate different mechanisms for ensuring sustainability (by ensuring compulsory action towards incorporation of environmentally sustainable practices to reduce long-term harm​) and resilience (providing need-based measures that can bolster domestic markets with global support). Similarly, to unpack strategies on addressing core issues around markets, competition, and innovation, we examine executive action in the USA including the Executive Order on Promoting Competition in the American Economy​. This can be seen to prevent vertical integration and promote competition within the market by encouraging the FCC to prohibit exclusivity arrangements between ISPs and landlords, in order to improve rules for auctioning spectrum, and to increase the transparency of broadband pricing​. Beyond executive and legislative action, we also note prominent judicial action against growing monopolies within the telecom sector in the USA, where United States v. AT&T, Civil No. 74-1698​ consent decree reviewed state PUC decision on interconnection and observed that, when appropriate the PUC has broad discretion to establish performance standards to spur service improvements​. You can view our research to look at the detailed mapping of governance strategies used to address the aforementioned buckets of harms and opportunities in traditional infrastructure.

Placing the frictions framing in the governance of digital infrastructures 

A review of the strategies adopted for the governance of traditional infrastructures shows that comprehensive frameworks rely on a combination of executive, legislative, as well as judicial action to combat broad and context specific concerns.​ To that end, while executive action performs a reflexive quick response function, legislative action is a more considered approach on building the right base, while the judiciary keeps check on the implementation and refines frameworks post enactment. These strategies are used to address the same buckets of harms that have been identified for digital infrastructures and can be adapted to open pathways for addressing missing or inadequately considered concerns in the digital context. However, the effectiveness of the strategies adopted would depend on the direction of developments in digital systems and the public’s understanding of their impacts on markets and culture. ​

In such a framing, governance of infrastructures can be understood as the result of the friction between the emergence of novel transformative systems, top down institutional action around their governance, and the society’s response to the changes it introduces. The movements that result from such frictions then translate to top-down policy or bottom-up community initiatives as a process of continuous negotiation between the state and the needs of the society. 

This framing can be understood with the example of the regulatory journey around generative AI technologies where governance frameworks have been continuously evolving, and have included institutional, technological and community interventions​. Here the frictions in society’s engagement with generative AI, first as an opportunity and then as a disruptor for job markets, has disclosed gaps in its operation and protection frameworks, and steadily resulted in improved design and governance​.  

The mechanisms we have explored in the preceding sections are all top-down mechanisms originating in the State. The operation of these mechanisms in a manner that is equitable and just necessarily requires transparency and accountability measures embedded with these mechanisms to hold the State actors to account.​ Additionally, as is evident from the governance journey around generative AI so far, building a robust governance approach to digital infrastructure also requires that power is also vested in the public, such that the systems of engagement empower them to hold both private and State actors accountable to act in greater public interest. Putting people and communities at the core of the operation of digital infrastructures and related governance frameworks helps with the realisation of socially beneficial solutions. 

To this end, we must consider bottom-up governance mechanisms that can enable this. In the digital ecosystem we have already witnessed a number of technology and community initiatives come about in response to the gaps that arose in the deployment of generative AI tools in various sectors, including creative industries, IT, and cultural preservation.​ For instance, Glaze ​came about in response to the threat of IP infringement and it protects against style mimicry, by altering artwork such that it appears to be a different style to an AI model while appearing unchanged to the human eye. Another tech-based solution of note in this context is Nightshade​, which turns any image into a data sample that is unsuitable for model training without consent. 

Bottom up governance also often takes the form of community movements as initiatives to fill gaps ro resist against the harms caused by novel technologies. To that end, the undertakings of Te Hiku Media, which works as a Maori language archival and revitalisation focused organisation, provides notable instantiations. In particular, their Data License spells out the ground rules for future collaborations on traditional knowledge based on the Māori principle of kaitiakitanga, or guardianship. Community movements to this end can also come from less cohesively formed communities, such as the users of Stack Overflow , where community members altered or deleted their posts and comments in protest, arguing that this steals the labour of the users who contributed to the platform. 

These efforts make it evident that enabling people to voice their concerns post deployment, and involving communities in the design and implementation of digital infrastructures with appropriate participatory mechanisms, can lead to socially relevant and responsive infrastructures. 

Realising the infrastructure framing 

Our research so far has shown that placing digital systems within an infrastructure framing can be instrumental in helping us identify the essential roles they play today in addressing societal needs. Further, the reflexive nature of such infrastructural networks enables the adoption of a comprehensive approach to their governance that accounts for the various harms and opportunities that present within relevant digital infrastructures. In such a context, to realise the full potential of the benefits these systems can afford for society at large, it is essential to – 

1. Be intentional about orchestrating an enabling environment for bottom-up community movements to thrive. Particularly in the context of digital technologies, the fast pace of transformative developments makes it burdensome for institutional action to keep up with top-down mechanisms alone. Additionally, as people use, operate, and define digital infrastructures, enabling localised channels for people to engage with the governance of these systems can lead to creation of better, more contextually relevant and responsive infrastructures that run smoothly and sustainably. 
2. Assist top-down institutional mechanisms with comprehensively addressing the full spectrum of harms and opportunities that arise within infrastructures through appropriate strategies on governance. In this process, it becomes essential to consider the externalities that the widely interlinked infrastructures generate, and balance business, social, and environmental interests equally. 
3. Enable global solidarities in the operation and governance of these infrastructures. Presently, a significant share of control on digital infrastructures that operate globally is concentrated in the global north. This has resulted in major power asymmetries for global south countries that both affect the operation of these technologies and are affected by them in significant ways. Global south countries provide huge markets to deploy digital technologies at scale, with large parts of the population in these countries relying on access to the technology that is frequently housed and controlled within global north majority nations. On the flipside, the owners and operators of these systems rely on human resources from global south countries for tasks requiring intensive human labour, such as data labelling or content moderation. Considering the deep interdependencies of countries on each other and the highly interlinked impact of these technologies across the globe, it is important to consider the ways in which sovereignty of nations can be secured, and solidarities can be built to enable equitable benefits for all.

At its core, adopting the infrastructure framing for digital systems allows for us to reframe the governance approach to break the concentration of power. By recognising the critical societal functions they perform, and understanding the nature of their operations accurately, we can begin to rearrange the accountability structures and distribute control from private hands and distribute it towards the State and the public, while being mindful of global sensitivities that emerge.​ To realise the potential of such digital infrastructures, while accounting for the gaps and harms in their operation, some solutions can be identified based on learnings from similarly placed traditional infrastructures. In translating such strategies for the digital context, and orienting them for the peculiarities of this new form of infrastructures, certain questions emerge for further research – 

1. What are the necessary frictions that emerge within current governance frameworks for digital technologies that primarily rely on top-down mechanisms? 
2. How can we understand the political economy around the operation of these digital infrastructures, and decentralise the concentrated power structures meaningfully? 
3. How can we enable effective participation from the people and communities that affect and are affected by these technologies, to enable constructive bottom-up action that can address local needs? 

We are continuing to explore these questions at Aapti and if they interest you, please reach out to us at [email protected].