What is the Digital State?

Welcome to the Digital State section! This section is a space for discussing the relationships between digitalisation and public law, broadly construed. Here, we look forward to publishing perspectives on how digitalisation impacts constitutionalist concerns with state power. We want to address how states organise themselves in the face of digitalisation, how they exercise power in a digital world, and how they interact with other actors that seek to influence technological development.

Framing this section in terms of public law does not mean we do not acknowledge the various shortcomings of the public/private divide. If anything, the distinction between the elements of this pair becomes even fuzzier in the face of digitalisation, as private actors wield power through platforms and states increasingly rely on private providers for technological services. Despite this absence of clear-cut criteria for the divide, it still meets the requirements for a successful distinction: in most cases, one can distinguish public from private actors, and these actors exercise power in different ways. Accordingly, we use this section to raise and examine state power in the digital age.

In its classical form, constitutionalism concerned itself with the limitation of state power through the dual tenets of separation of powers and fundamental rights. Matters of fundamental rights are already covered by the Digital Rights section, which provides us with a venue for discussing how digitalisation creates new risks and opportunities to protect fundamental rights. This section, instead, provides a space for discussing how digital technologies transform the organisation and exercise of state power.  

Digitalisation transform states in various ways. Perhaps the most straightforward form of transformation is the translation of existing state practices into a digital environment. For example, the Covid-19 pandemic led many countries to intensify teleworking practices among their civil services, deploy digital tools to provide services to citizens and move court activities to online environments, among other changes. Before that, countries such as Brazil were increasingly moving judicial records and other forms of documentation to a purely electronic format. Digitalisation has transformed political participation, with Estonia providing the most extreme example of adopting an internet voting system. Technology is no longer a niche factor at statistics bureaus and other number-crunching activities but a central part of state activity.

These changes are usually touted as improving service to citizens and reducing government costs, but when they manifest altogether, these benefits are associated with some risks. One concern that appears in this context is the digital divide: if governments, courts, and parliaments rely on digital technologies, how can people who lack access to these digital platforms obtain access to the state? Digitalisation also raises questions about the security of state services and records: how can we ensure that elections are not tampered with by hackers? What happens if court records are captured by ransomware or the server simply fails? Answers to these and other questions help us understand the impact of digitalisation in the everyday operations of states.

However, states are not using digitalisation to do more of the same. Instead, the digitalisation of state records and practices renders citizens, non-citizens, and legal persons legible in new ways. Technology reduces the barriers in combining information from various sources: different bodies within the same branch of government, different branches of government, and private sector sources. For example, tax authorities throughout the world increasingly rely on artificial intelligence techniques to expedite their processing of taxpayer data. The availability of vast data sets also allows states to automate specific tasks, such as the triage of cases submitted to courts or risk assessment in cases relating to tax fraud. Hence, digitalisation enables states to exercise their power in issues that would otherwise be outside their reach, either due to lack of information or the elevated costs involved in acting upon existing information.

Increased state capacity is desirable when it is deployed towards goals a state can legitimately pursue. Yet, the availability of information and means for automated action may compromise the effectiveness of existing constraints to state power. The technical complexity of digital technologies may increase the opacity of state activities, thus preventing effective oversight (for example, see Blazej Kuzniacki’s examination of the need for explainable artificial intelligence in the tax domain). Without oversight, there is no easy way to detect when decisions are based on wrongful or downright discriminatory data, as shown in situations such as the Dutch childcare benefits scandal. Proper use of digital technologies, just like other exercises of power, thus requires adequate safeguards. Still, these controls are of little use if the practice they are being applied to is illegitimate in the first place. Between these and other concerns, automation and other forms of digitalisation pose several challenges to existing mechanisms to prevent state overreach, which digital constitutionalism must consider.

Technology enables changes in how states organise themselves and operate. However, states are not limited to riding the wave of technological innovation created by private actors. After all, states not only are massive consumers of information and communication technologies, but they have also funded research and development of many of the foundational breakthroughs of digital societies, such as the Internet. Beyond this inductive role, states also influence digital technologies through direct mechanisms, most notably the adoption of regulatory instruments such as those directed at digital markets, the protection of personal data, or specific technologies. Therefore, technological change is another sphere in which states exercise their power, rather than being an entirely external constraint to state activity.

A digital constitutionalist approach to state action on digital technologies can interrogate various aspects of the exercise of state power. It may consider, for example, how concerns about fundamental rights and the separation of powers come into play in the decisions of what technologies require regulation and when and how to regulate such technologies. It may also examine how states distribute regulatory competencies within themselves, raising questions about the role of legislatures, courts, and executive bodies in this regulation. Or it may consider the long-term impacts of regulatory choices, evaluating them in terms of the problems they intend to face and the legitimacy of imposing current views on technology to future generations. These and other questions further the digital constitutionalist project by probing the limits of state power concerning technology regulation.

However, no state can regulate technology alone. Given the global reach of digital technologies, many applications are likely to be subject to the influence of more than one country. The US and China are notorious for exerting their regulatory power even beyond their borders through direct mechanisms such as extraterritoriality and bilateral agreements and indirect mechanisms such as providing experts to assist other countries in their regulatory efforts. Further complicating things, the regulation of digital technologies is also subject to the influences of international treaties, such as the Council of Europe’s Convention 108, and of non-state actors, which may range from private organisations such as IEEE and ISO to the European Union. As a result of the existence of these multiple regulatory actors, states are subject to external constraints as they seek to govern the development and use of digital technologies.

Being concerned with limits to power, digital constitutionalism can approach the state and its others from various perspectives. One possible angle is to examine how digital technologies impact states qua sovereign actors, considering how technologies afford new possibilities for exercising sovereignty while limiting regulatory reach. Another fruitful discussion may come from examining how technologies may demand or enable new approaches to resolve conflicts between states and non-state actors in technology matters. But the interests of various actors do not always clash with one another, which means there is much to be learned about the impact of digitalisation in cooperation between states. 

The concerns outlined above provide an overview of how digitalisation impacts the various facets of state organisation and action. In this context, digital constitutionalism should not be just an expansion of the scope of constitutionalism towards new rights and actors but also consolidation and restatement of the previous moments of constitutionalism in the new digital context. Accordingly, this section welcomes contributions from constitutional law, public and private international law, administrative law, tax law, and all other fields dealing with the concerns described above. We also welcome critical contributions that question the premises and conclusions presented above and propose new directions for understanding the relationship between states and digitalisation. Last but not least, we also welcome posts on these general concerns that deal with actors that are not quite states, such as the European Union. 

Contributions to the Digital State section may analyse the issues outlined above, propose new issues from a digital constitutionalist perspective, or even question the overall frame from this post or bring alternative approaches to the table. These and other ideas are welcome, and we look forward to publishing your contributions to the debate on the digital state.