'The quadrangular shape of the geometry of digital power(s) and the move towards a procedural digital constitutionalism' by Oreste Pollicino in (2023) European Law Journal states
The paper explores the evolution of private powers in the digital landscape, developing a quadrangular systematisation of such a phenomenon based on four main aspects: space, values, (private) actors, and (digital) constitutional remedies. Taking a trans-Atlantic approach, the paper shows how these categories, typical of constitutionalism, apply to the context of the Internet and of new digital technologies both in the United States and in Europe. On the one hand, the United States has up to now maintained the supremacy of the notorious Section 230 of the Communications Decency Act. On the other hand, European legislation has undergone a significant change, moving from a phase of digital liberalism, of which the 2000 e-Commerce Directive is the emblem, towards a new era of digital constitutionalism, passing through the age of judicial activism of European courts. In this sense, Europe has increasingly attempted to introduce limits to private (digital) powers, with a view to better protect and enforce (also horizontally) users' fundamental rights. Additionally, the evolution of digital constitutionalism, from a vertical-sectoral approach to a horizontal and procedure-based one, significantly showcased by the recent Digital Services Package, is underscored, signalling the recent movement of the EU into its second phase of digital constitutionalism. In this respect, the paper argues that the great benefit of stressing the procedural dimension, which may be defined as a European application of “due (data) process” to the relationship between individuals and private powers, is that it is potentially able to help consolidate a (necessary) trans-Atlantic bridge.
Pollicino asks
What are the signs and constituent elements of private digital power? Why have the emergence and consolidation of this power been so significant for constitutional law, and why is it not (or no longer) simply a matter that can be dealt with using the instruments of antitrust law? When and why did the most important digital companies at global level metamorphose from economic operators into full-blown private powers often in competition with public authorities? What tools are available to constitutionalism, considered from a trans-Atlantic perspective, to counter the exponential expansion of these powers, taking account of the relevant constellation of the rights in play, from freedom of expression through the protection of freedom of enterprise to the right to privacy?
These are the research questions that the following pages will attempt to answer.
There is a growing literature related to the relationship between constitutional law and private powers in cyberspace and to the emerging notion of digital constitutionalism.1 However until now, there have been no analyses of the constitutive elements of the geometry of digital power, of the process of “transfiguration” that has transformed private actors in cyberspace from economic operators into genuine private powers, or of the reaction that this transfiguration has triggered on the part of modern constitutionalism. Constitutionalism has been forced to identify a new scope of action in order to remain true to its original mission of limiting power in order to ensure respect for fundamental rights, the rule of law and democracy which may be affected negatively in the absence of adequate mechanisms of checks and balances. Specifically, this study will shift its focus from a classical vertical approach juxtaposing authority and freedom towards a horizontal approach. The objective will be to identify the most suitable instruments for limiting and containing the private power wielded by major online platforms. A new geometry of digital powers will be proposed, based on a quadrangular shape, and this shall represent the main argument and the added value to the existing literature.
The reference to geometry has been used already by Jack Balkin who, noting how digital power (in particular with regard to freedom of expression) is characterised by the fact that it transcends the binary relationship between public power and individual user, has incorporated a third level (or corner) and on this basis has recently coined the metaphor of ‘free speech as a triangle’, with the third corner being occupied by private platforms.2 Within the account proposed here, the geometry of digital power will instead be conceptualised as having a quadrangular shape corresponding to the four constitutive dimensions: 1. space; 2. values; 3. actors; and 4. remedial (with the fourth focusing on the responses of constitutionalism to the consolidation of that power). The reason for this quadripartite division may be summarised as follows: within the new algorithmic society, private transnational corporations (operators) are de facto increasingly performing public functions through the “governance” of digital spaces (space). Within this context, the value framework that characterises the European legal order on the one hand and the US system on the other hand, especially as regards the balancing of the rights at play (axiological dimension), is fundamental in understanding why different constitutional reactions by different legal orders are heavily influenced by the value-based approach which characterises the respective bills of rights and the constitutional case-law of the legal orders at stake. The last relevant corner is the one corresponding to the constitutional remedies dimension. It bears the question of what instruments are available to public law to counter and to limit private digital powers, which appear, however, to be following an increasing growth trajectory.
The article will therefore be structured according to this quadripartite understanding corresponding to the quadrangular shape of the new geometry of digital power(s). Section 2 will consider the first constituent element of the mentioned geometry, namely space (and territory). Section 3 will focus, looking at the second constitutive element, on trans-Atlantic diversity in terms of the values and judicial frames endorsed, respectively, by European courts and by the US Supreme Court as regards their approach to technology. Section 4 will then focus on the third constituent element, involving the major platforms and their metamorphosis into private powers. Finally, Section 5 will examine, as the fourth and last element of the quadrangular shape, the potential responses from US and European constitutionalism to limit the amplification of private digital power. The article will then end with some brief concluding remarks.
From a methodological point of view, the investigation will cover, from a transatlantic perspective, the European Union and US experiences. This choice does not wish to deny the emergence and consolidation of other regional areas with a significative impact on a geopolitical digital landscape, such as the Chinese model. Nevertheless, the privileged focus of this analysis aims, on the one hand, to be confined to liberal democracy experiences and, on the other, to critically point out the need to take more seriously the transatlantic bridge related to the biunivocal migration of constitutional ideas, from one side of the Ocean to the other, connected with new digital technologies.
