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How does digital constitutionalism reframe the discourse on rights and powers?

A theoretical lens to understand digital policy developments

Giovanni De Gregorio

7 December 2022

Reading time: 10 minutes

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The mission of liberal constitutionalism has primarily focused on protecting fundamental rights from unlimited state power.

As such, liberal constitutions aim to limit government action and shield individuals from the interference of public authorities in their lives – protecting, for instance, freedom of expression, religion, sexual orientation, and guaranteeing rights such as fair treatment in a court of law and education, depending on what a nation has identified as an individual’s fundamental rights and freedoms.

However, the ubiquitous use of proprietary digital technologies to supply services and cover public functions has raised significant questions for constitutionalism. This requires that we reframe its role, and reconsider some of its traditional concepts, such as the dualism it sets between the public powers of states’ authorities and private freedoms.

Digital constitutionalism provides a theory to reframe the stakes of constitutionalism for the digital age. Just to offer an example of the questions it raises: what does it mean to protect fundamental rights and freedoms now that not only governments, but also private companies, can shape their scope and impact them with their decisions?

The context of digital constitutionalism requires a plural framework to understand rights and powers that complements the link between law and territory with the relationship between norms and spaces of governance in the algorithmic society.

Against this backdrop, digital constitutionalism leads to looking at rights and powers beyond the boundaries of nation states and expands the debate on how rights and freedoms are mediated due to the power relocation from states to corporations typical of the digital age.

The EU’s recent drive towards regulating the use of data and data-powered technologies is often described as a form of digital constitutionalism, and particularly as a reaction to private norms and external interferences from other standards of protection. As European legislative bodies discuss the AI Act and the AI Liability Directive, it is important to understand what we mean by digital constitutionalism and the outcomes it may lead to in different contexts.

Shifting power dynamics

The implementation of biometric technologies by law enforcement, and the extensive measures employed by government agencies to control information flows through internet shutdowns, are two examples of how public actors can interfere with fundamental rights and freedoms in the digital age. These and similar interventions put into question the rule of law and the efficacy of mechanisms for democratic oversight.

At the same time, the exercising of powers and associated challenge to rights and freedoms is no longer solely a prerogative of public entities, as it is mediated by the main digital actors within our increasingly algorithmic society.

We see this in Twitter’s decision to silence former American President Trump in early 2021, Facebook’s response to Australian legislation or YouTube’s decision to block anti-vaccine content, which demonstrate how far platforms have consolidated their role as global gatekeepers of public service information, taking decisions that we would usually expect from public authorities. In similar vein, the recent Twitter acquisition by Elon Musk underlines how the governance of digital spaces, where fundamental rights and freedoms are exercised, is governed by the discretion of private actors, not to say a single individual.

The pandemic has been a litmus test for the exercise of private power through digital means. Amazon provided deliveries during the period when national lockdowns were implemented, while Google and Apple offered their technology for contact tracing apps, when state infrastructures failed to do so. Similarly, since the beginning of the pandemic, the exercise of social rights such as work, and access to fundamental public services like education, have partially moved to online platforms and interfaces, mediated by private companies.

The actual scope of many fundamental rights, such as freedom of speech and privacy, is now determined not only by public institutions, but also by digital platforms. This consolidation of power over services and public functions demands a shift in thinking: from looking at public actors as the exclusive threat to rights and freedoms, to considering private companies, and primarily online platforms, as presenting a similar challenge.

Clearly, modern constitutions have not been thought of as general barriers to the exercise, or rather abuse, of non-state actors. However, the fact that transnational private entities, such as Twitter, Meta, Google and so on, which make decisions at a global scale, govern spaces that are only formally private and exert functions traditionally vested in public authorities questions the role of constitutional law and leads to extending constitutional safeguards to the exercise of these quasi-public functions.

This opens up further issues, related to ideas of legitimacy, power and democracy, which digital constitutionalism tries to address by adapting the traditional model of constitutionalism to the needs of the algorithmic society.

Digital constitutionalism can provide a framework for understanding and addressing the transformations of the digital age. It aims to identify the limits of liberal constitutionalism, but also its merits in potentially facing transnational challenges. The goals are not limited to responding to private powers, for instance through regulating platforms, but also to rethinking and reframing constitutional instruments that protect rights and guard against abuses, such as suppressing people’s freedom to express political opinions and protest, or people’s access to services that are considered fundamental to a person’s wellbeing, and, more profoundly, dignity.

The perspective of digital constitutionalism

The dominance of specific online platforms, which are often competing with constitutional democratic practices, is an egregious example of power relocation from public authorities to private entities. Indeed, by defining technical standards of protection and enforcing particular Terms of Services, transnational corporations are able to consolidate value-based norms. This can be read as a ‘constitutionalisation’ of private interests, in a way that goes beyond the boundaries of modern constitutionalism.

Similarly, the introduction of social media governance councils, such as the Meta Oversight Board, is not just an example of bottom-up pressures leading to platforms revising their processes, but also of an attempt to legitimise and institutionalise private governance by creating an alternative to enforcement by public means.

Digital constitutionalism provides perspectives and instruments that can directly address these challenges. The analysis of a bill of rights can be considered a first step towards this goal. More broadly, the horizontal effect of the rights that digital constitutionalism could help extend and its potential reframing of constitutional safeguards can be considered critical examples of the legal toolbox provided by this approach in its attempt to reconcile tensions occurring at different dimensions, and particularly the state, the global and society.

Indeed, digital constitutionalism complements other approaches to the same problems, such as those that lead on political economy and human rights. Political economy helps to describe and understand the economic incentives and directions of the digital age, but does not provide the legal instruments and remedies needed for constitutional transformation. Human rights approaches do have a legal dimension and help limit the exercise of powers, however, they rely on the willingness of states to implement international law and enforce human rights.

Digital constitutionalism in context

The way in which public institutions have reacted to private forms of governance has still mostly been driven by regional and local constitutional approaches, connected to specific identities, traditions and territories.

The European Union constitutes a paradigmatic case for studying the rise of digital constitutionalism. At the end of the last century, the EU was primarily inspired by the US neoliberal approach to digital technology. The liberal narrative around online intermediaries as neutral, rather than active, service providers was prevalent across the European constitutional landscape, as demonstrated by the adoption of the 2000 e-Commerce Directive. Likewise, the 1995 Data Protection Directive, the first instance of EU data protection regulation, was considered to be a necessary step for ensuring the free circulation of data in the internal market, rather than a tool for protecting privacy and personal data in the digital age.

The end of this first, neoliberal approach was marked by the adoption of the Charter of Fundamental Rights in 2000, as well as the emergence of new and significant challenges to rights from private actors operating in the digital sphere.

In the second phase, the European Court of Justice (ECJ) played a pivotal role by focusing Europe’s legislative agenda on fundamental rights. In the context of this new framework, the ECJ started to act like a quasi-constitutional court, as we can see in Scarlet, the case that revolved around the balancing of fundamental rights with preventing Member States from introducing disproportionate obligations to general filter content (the automatic data processing system that filters content based on set criteria), or in Google Spain, the example case for how the fundamental rights of privacy and data protection play a critical role in Europe.

The Charter has since become the fundamental basis for assessing the validity of European legal instruments and interpreting them, looking not only at public actors but also the private sector through an extensive and horizontal interpretation of fundamental rights, primarily privacy and data protection.

This second, post-Charter phase laid the foundations for the present one, which is orientated towards the protection of fundamental rights and the limitation of private powers. The General Data Protection Regulation, adopted in 2016, and then the Digital Services Act and the Digital Markets Act, which became law this autumn, can all be considered as examples of European digital constitutionalism.

Among other measures, the obligation to consider fundamental rights in enforcing Terms of Services delimits the extent to which online platforms can define their own standards regarding content. Likewise, the introduction of transparency safeguards and redress mechanisms in content moderation contributes to greater accountability and increased democratic oversight. These instruments are a reaction, not only to the challenges of digital capitalism, but also to the exercise of private powers that can express their values in de facto competition with the rule of law.

This three-phase constitutional transformation, which has taken Europe from a traditionally neoliberal approach to a more assertive and expansive strategy, has not taken place on the other side of the Atlantic. The USA has historically adopted an omissive approach, rooted in concern for freedom of expression and the First Amendment, which leads to a different form of digital constitutionalism. In this context, online platforms are not considered to be a threat to modern constitutionalism, but as a vehicle for upholding and exercising particular rights and freedoms.

For instance, the Communication Decency Act immunises online intermediaries, including online platforms, from liability when moderating user content. On data protection, apart from some national attempts, there is no harmonised approach to privacy and data protection rights at the federal level.

Among other national cases, the position of the UK’s constitutional model in the digital age is a peculiar one, particularly after Brexit. The launch of new digital policies, such as the Online Safety Bill and the Data Protection and Digital Information Bill, are as much a part of a political response to leaving the EU, as they are part of a new UK-specific approach to the challenges posed by digital technologies.

Whichever national or reginal context we look at, it is not surprising that public actors have tried to either extend their policies to a global scale through extraterritoriality or close their national boundaries by enacting forms of digital protectionism, reflected – for instance – in the adoption of the AI Act.

The path of digital constitutionalism has just begun. The different approaches that have characterised the strategies adopted by constitutional democracies and private actors demonstrate how traditional liberal constitutionalism has been put under pressure by the emergence of new digitally mediated architectures of rights and powers. The most critical challenge for constitutionalism in the digital age then will be to reposition its role in a tolerant and plural framework of normativities.

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