The Geometry of Digital SovereigntyTHE POWER HELD BY THE PRIVATE OWNERS OF DIGITAL PLATFORMS IS IN FACT PARACONSTITUTIONAL, SO MUCH SO THAT THEY HAVE MOVED FROM THE CLASSIC VERTICAL RELATIONSHIP BETWEEN AUTHORITY AND FREEDOM TO A HORIZONTAL DIMENSION IN WHICH THE GOAL IS TO FIND THE MOST APPROPRIATE LEVERS AND TOOLS TO LIMIT THEIR POWERS
by Oreste Pollicino, full professor at Department of legal studies
Translated by Alex Foti
What are the new challenges to modern constitutionalism with respect to the emergence and consolidation of large digital platforms?
In order to reach a measure of understanding, we must start from the analysis of the process of "transfiguration" that have transformed these subjects in powers stricto sensu, and the reaction that this transfiguration had engendered in modern constitutionalism which, in order to maintain faith in its original mission of limiting power, must find new geometries of action. Specifically, there is a move from the vertical geometry of the classic relationship of authority versus freedom to a horizontal dimension, in which the objective is to find the most appropriate tools to limit and contain the private power held by large IT platforms, also by leveraging the concept of digital sovereignty.
One should keep in mind that this is not the first time that the problem of the relationship between public law and private powers has arisen, nor that private subjects de facto regulate certain markets with such an influence on a particular industry as to hold political power lato sensu (think of sports federations).
The discontinuity and therefore the relevance of private power in the new digital context is however given by two aspects. The first is of a quantitative order: the pervasiveness of the digitalization process, the mechanisms of algorithmic automation, and the enormous amount of data available to profile users have given major digital corporations an unprecedented ability to exert global influence. The second novelty is qualitative, and impinges on the breadth, pluralism and freedom of public debate. In fact, we have never seen in the past what is happening in the digital context. That is to say, private subjects with such a dominance on a very particular market, that of ideas – to paraphrase Holmes' legendary metaphor about a free marketplace of ideas – that they are capable of influencing public debate in a most effective way. In fact, for large platforms, as Miguel Maduro recently argues, "fostering a large community – similar to a public sphere – is key to the business model".
The issue of re-proposing, in the context of the digital ecosystem, the conditions and presuppositions of a functioning public sphere, in the sense that Habermas defines it, deserves mention, because it is intertwined with the issue of the concentration of power held by private subjects (which often de facto exercise functions of a para-constitutional nature, as we said).
It seems quite optimistic, bordering on unrealistic, the hope expressed by Balkin, one of the leading scholars on the subject, who suggests an ideal model (melius: idealistic) of the digital public sphere, according to which social media, private subjects which mainly operate according to the market logic, should, however, move on three fronts on a voluntary basis, at least as regards the US case, to enhance public debate. First of all, they should facilitate public participation in politics, culture and art; secondly, organize public forums on the web that favor the exchange of ideas; thirdly, caring for the modalities of functioning and moderation of public conversation.
It is very difficult to envisage the scenario above described, also because we are witnessing a phenomenon that in many ways goes in the opposite direction, namely the crumbling of social formations in cyberspace, at least of traditional ones, with all the negative consequences that absence of political intermediation on the part of the intermediate bodies can have on the modalities of exercise of power (and its abuse) and on the weakening of the position of the individual, increasingly immersed in the Internet framework made of individualism, but also of loneliness, and in the end of further weakness with respect to power, whether public or private.