Algorithms Put Platforms on an Even Keel with States

PUBLIC LAW PONDERS HOW TO CURB THE POWER OF MAJOR DIGITAL CORPORATIONS WITH THE TOOLS THAT HAVE PROVEN EFFECTIVE IN DEFENDING PEOPLE'S RIGHTS VIS A' VIS GOVERNMENTS

by Oreste Pollicino, Dept. of Legal Studies, Bocconi
Translated by Alex Foti


What are the challenges of constitutionalism when the playing field moves from the world of atoms to the world of bits? To answer this question, we must return to the original mission of constitutional law, i.e. setting limits and checks on state power, so that the relationship between political authority and freedom, in its vertical dimension, is not unbalanced in favor of the former and at the expense of the latter.

Now, traditionally, the political power for which constitutional law set counterweights has been public power, so much so that placing limits against government arbitrariness has always been one of the main ingredients of liberal constitutionalism. The advent of digital technology, and in particular algorithmic technology, necessitates the reassessment of certain aims of public law and, on the other hand, the search for new tools to achieve ends partially different from the original ones.
 
The technology of digital algorithms and machine learning often involves opaque mechanisms of automation and depersonalization of decisions pertaining to the visualization, sharing and sometimes manipulation of sensitive information and personal data of users. This has created a shift of the axis of investigation concerning the public law implications of a technological evolution, something that seems to have escaped the attention of most observers.

It is not just a case of more stringent norms governing the economic activities of large digital platforms, so that the tools of regulation and competition law apply, but an overall change in focus. We should concentrate on the issue of the power shift benefiting these platforms thanks to their use of algorithmic technology, and on the role these companies are taking as private powers competing with the public powers of the state.

On the one hand, this calls into question a fundamental premise of constitutional law, that according to which the only a public authority hold legitimate power. On the other hand, it also highlights the urgency of a reflection to rethink the boundaries of constitutional law. Whereas before regulation and competition law were sufficient to deal with the risk of economic dominance and abuse of market power by the big digital platforms, the above-mentioned transformation from business enterprise to private power by these platforms is a new call to arms for constitutional law. If its original mission is the limitation of power, this transformation implies a widening of the action perimeter of constitutional law, since it must act to curb the expansionary tendency of these new private powers, so that they do not impact negatively on the fundamental rights and freedoms of individuals.

If aims, boundaries, and recipients of constitutional law need a rethinking in an algorithmic society, the question naturally arises about the tools  public law should use to deal with this transformation successfully. The good news is that these tools are all already available to the legislators and courts across the EU. We do not need new charters of rights, because inflation (of charts and courts) can produce negative effects even in constitutional law, by actually lowering, rather than raising, the standards of protection of the rights involved.

There is no need to conceive new rights, it is enough that European courts find enough courage to apply the rights already provided for by national constitutions and EU treaties –
starting with data protection, privacy, freedom of expression, access and transparency. Application must also move in a horizontal way, in the relations between private actors, where one is the platform that embodies the new technological power and the other is the user, whose dignity is the true constitutional value that must be preserved. It is here that the classic vertical relationship of freedom vs. authority must be conceived according to the new horizontal dimension of platform vs. citizen, in the algorithmic era which is no less delicate and relevant for public law.