This post is a contribution to the symposium What is Digital Constitutionalism? and not an official editorial position. We nevertheless welcome the author’s contribution and encourage further posts probing the meaning of digital constitutionalism and its limits as an analytical approach.
On January 6, 2021, the world observed one of the most robust democracies in the world experience an attack on one of its central institutions. The U.S. insurrection against the Capitol building represented the outcome of the impact of social media platforms in the rise of radical and anti-democratic political groups. At the end of the same month, similar political and constitutional disturbances could be seen in India. The government used its power to mandate the censorship of multiple posts and accounts on Twitter to silence legitimate protests against its new agricultural policy.
Both situations represent political disturbances influenced, at least in part, by digital technologies and platform governance and could be analyzed through the lenses of digital constitutionalism. There are different perspectives on the extension and application of digital constitutionalism. Suzor highlights the concept as an application of constitutional principles in the digital environment and the extension of the rule of law towards private governance in virtual communities. More broadly, Celeste defines it as the ideology that frames national, regional, and transnational development of regulatory practices towards protecting fundamental rights and balancing powers in the digital environment.
In his systematic theorization, Edoardo Celeste highlights how the concept of digital constitutionalism has developed since the expansion of internet technology beyond its initial academic and military purposes. The author’s systematic definition allows for the conciliation of different perspectives of digital constitutionalism, focusing on the normative reactions to the influence of digital technology in contemporary societies. This piece will attempt to present a different perspective, taking into account the intersection of the societal framework in which platform governance is inserted. This framework considers the normative expectations both from the national and the digital (mainly, private companies) standpoints, situating digital constitutionalism also in its political character.
Liberal Constitutionalism at the Digital Age
To properly define digital constitutionalism, one must first comprehend which definition of constitutionalism one aspires to exert on the digital space. In Celeste’s theorization, constitutionalism is understood as the ideology that purports for limited government, including foundational values such as democracy, the protection of human rights, and the rule of law. This perspective is relatively liberal, representing a political theory focused on the normative aspect of the constitutional imagination.
Although not wrong, understanding constitutionalism under these terms can be reductive of the complexity inherent in the constitutional political theory. From a national standpoint, Barber describes that constitutional principles are deduced from the concept of the state. As such, negative constitutionalism derives from Weber’s conception, in which the state is a human community that claims the monopoly of the legitimate use of physical force within a given territory. It is to say, the relationship between the state and its members starts from a position of domination, enclosed in a claim of legitimacy, which translates into constitutional principles focused on the limitation of state and government powers.
Contrastingly, outside this negative understanding, Barber highlights the necessity to think of constitutionalism beyond the preoccupation of limited government, considering a conception of the state-bound with its capacity to promote social well-being. This Aristotelian perspective guides an understanding of constitutionalism from a positive standpoint, binding the notion of constituted powers and its legitimacy claim with the obligation of promoting social rights capable of improving the well-being of its members.
This perspective is enlightening but still framed under the specific political consideration of the notion of the state. Since its inception, the internet has been developed as an antithesis of state government. As Post and Johnson argued, cyberspace was understood as a separate entity with minimal connection to the interests of sovereign nations, thus establishing that self-regulating structures would be better suited to deal with the legal issues arising from the internet. Famously, John Perry Barlow has declared the cyberlibertarian model of internet governance, stating that government power does not regulate the bottom-up process of development of the digital space.
Thus, two further aspects of constitutional theory must be overseen towards a fuller comprehension of constitutionalism in the digital age. First, the notion of constitutionalism must encompass all the complexity embedded in the exercise of digital governance, focusing not only on the balance of powers but also the purpose that signifies it and gives its legitimacy (e.g., the maximization of the well-being of internet agents, accountability structures and due process). Second, one needs to assign constitutional principles beyond the consideration of the state, taking into account the role private actors engage in governance activities within their business models and constitutional values that might arise specifically in this context.
Societal Constitutionalism – Connecting Layers
While the cyberlibertarian perspective promoted by Barlow emphasized the necessity of cyberspace not being regulated or attached by traditional boundaries, now we have observed how the open texture of the computational network system has resulted in a manifold of ways in which liberty can be curtailed. In this instance, Harcourt argues that the virtual semblance of fundamental freedoms online allows for the multiplication of surveillance and the further restriction of liberty, as every platform user becomes highly manipulated through the expansion of datafication. In a similar perspective, Zuboff highlights the interconnection between this expansion of surveillance and the limitation of fundamental freedoms in platform society, a feature of what she describes as surveillance capitalism.
Additionally, although the internet has been developed as an antithesis to the notion of the state, nowadays, internet service providers have become new governors in which fundamental freedoms are regulated in a similar hierarchical framework between the platform and its users. Content moderation has become the central area of focus in this parameter, in which social media platforms intervene on the content displayed in their platforms to enforce their policy standards and further enhance engagement among users.
Digital constitutionalism, when preoccupied with the definition of a negative space in which the individual rights of users are protected, allows for the development of a normative framework of co-regulation, in which national and international legal initiatives can guide the development of principles and standards to be applied by platforms in their exercise of governance. Most famously, Meta engaged in the experiment of establishing an independent institution of review for its content moderation practices. The Oversight Board’s first case (2021-001-FB-FBR) regarded the platform’s decision to restrict former U.S. President Donald Trump’s account after the January 6 insurrection for violating Facebook’s Community Standards and Instagram Community Guidelines, as both prohibit praise or support of people engaged in violence.
In contrast, a societal perspective can address even further issues, considering the use of self-regulation tools and instruments. A societal constitution perceives the multiple complexities of the social environment to which they belong, developing autonomously through the structural coupling of social ideals and legal form (Teubner 2017). In this instance, Facebook’s Oversight Board can serve as an example of digital constitutionalism in both its understandings. Narrowly, the Board creates a specific legal framework that subjects Facebook content moderation practices to more transparency levels, legal integrity considerations, and due process. From a societal standpoint, it enlightens the current development of social ideas and legal norms that impact the exercise of governance by a private actor.
Additionally, a societal perspective can also address the broader scope of social disturbances produced by the governance exercised in private platforms. In this capacity, it perceives the constitutionalizing function of internet agents engaged in the administration of rights and develops a framework for understanding the impact of these governance structures in national frameworks. Therefore, through a societal lens, one can investigate the development of self-regulating systems of value and legal identity by internet platforms and how these intersect with the social expectations and values already recognized beyond the digital and private sphere.
The recently published Facebook Files highlights this interesting societal dimension of digital constitutionalism. On the one hand, the Oversight Board has established a cohesive framework that applies Meta’s standards in conjunction with a plethora of human rights recognized by international legal instruments. On the other, the Files expose even further how Facebook undermines the issues with its algorithm and its impact on different nations’ social and political debates. Thus, beyond assessing the integrity of Meta’s decision to restrict the former U.S. President’s account, a societal critique could also compel the Oversight Board and national regulatory institutions to assess the broader impact of the social media’s algorithm in assisting autocratic populist measures, incentivizing divisiveness and radicalization.
Therefore, digital constitutionalism, through a societal lens, can also identify the political and social deficits that social media platforms cause in different national landscapes, more than classifying and contextualising the normative counterreactions to the exercise of governance by private entities.
Platform Governance and Constitutionalism: What can the future bring?
Celeste’s systematic theorization on the concept of digital constitutionalism is a good first step towards the development of further research on the field. Theoretically, constitutionalism can solve legal and political issues arising in the digital age. To accomplish that, one must not avoid the complexity involved in digital governance, encompassing legitimacy standards for more transparent and accountable internet governance. Additionally, by taking values from the notion of the state, constitutionalism developed a plethora of principles and understandings. If we transpose this to the field of the internet, we can maintain the majority of the values and infer new ones that are specific to this medium.
Additionally, engaging with digital constitutionalism from a societal perspective clarifies the turbulent relationship between national, social, and legal expectations of the governance performed by internet platforms. This theoretical outline perceives the constitutionalizing function of private entities’ self-regulation while comprehending the impacts of these new governance structures in already established national landscapes. Investigating those bilateral expectations can further illuminate possible consensus on values and principles, allowing the amplification of rights at the national and digital levels. It is to say, constitutionalism in the digital age must become as interoperable as the internet itself, becoming a vector for the governance of and within the network. Constitutional principles, therefore, should now act in a prism, a multiverse of public and private social arenas that define the freedom and well-being of individuals and internet users alike.
Lucas Henrique Muniz da Conceição
LL.M (Distinction) in Constitutional Politics, Law and Theory, Birkbeck, University of London. LL.B. Federal University of Parana, Brazil