Constitutional Democracy in the Age of Algorithms: The Implications of Digital Private Powers on the Rule of Law in Times of Pandemics

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Content published today on Virtual IACL Global Roundtable – Democracy 2020 at the following link.

 

The Rule of law in the Algorithmic Society

New technologies have always challenged, if not disrupted, the social, economic legal and, to an extent, the ideological status quo. The development of data collection, mining, and algorithmic analysis, resulting in predictive profiling is playing a disruptive role. Society is increasingly digitized and the way in which values are perceived and interpreted is inevitably shaped by the consolidation of the information society. The pandemic season has not only amplified technological challenges like in the case of contact tracing, but it has also shown the role of private actors in acting as essential pieces or digital utilities. Facebook, Amazon and Zoom are just three examples of actors which have allowed people to study, work and maintain social relationship.

The rule of law has not been spared in this process of framing (but not transforming) traditional categories in light of technological dynamics. The newness of (algorithmic) technology is a natural challenge for the principles of the rule of law.[I] However, technology is also an opportunity for fostering this principle since it can provide better systems of enforcement of public policies as well as a clear and reliable framework compensating for inefficiencies de factoundermining legal certainty.[ii]

Within this framework between innovation and risk, the question to ask is whether algorithmic technologies can encourage the exercise of arbitrary powers.[iii] The principle of the rule of law is a precondition for ensuring equal treatment before the law, protecting fundamental and legal rights, preventing abuse of power by public authorities and holding decision-making bodies accountable.[iv] In other words, the rule of law can be seen as an instrument to measure the degree of accountability, the fairness of application and effectiveness of the law.[v] It is also a goal of freedoms from certain dangers or pathologies.[vi] The rule of law is primarily considered as the opposite of arbitrary public power. Therefore, it is a constitutional bastion limiting the exercise of authorities outside any constitutional limit and ensure that these limit answer to a common constitutional scheme.

In the information society, this principle is a primary safeguard to ensure that, when public actors implement digital technologies to increase their efficiency, provide better services, or improve the performance of public tasks, the exercise of these activities is not discretionary but based on clear and proportionate provisions. At the same time, the lack of expertise of public authorities and the rise of gatekeepers online have led the public sector to increasingly rely on private actors to ensure the enforcement of public policies online.[vii]

Nonetheless, in the lack of regulation or horizontal translation of constitutional values, the principle of rule of law does not limit the freedom which private entities enjoy in performing their activities, including their right to free speech or freedom to conduct business. In a global digital environment, the threats for the principle of the rule of law do not just come from the implementation of algorithmic technologies by public actors but also, and primarily, from the ability of transnational private actors to develop and enforce private standards competing with public values. This is evident when focusing on how information flows online and the characteristic of the public sphere which is increasingly personalised rather than plural.[viii] Likewise, the field of data is even more compelling due to the ability of private actors to affect users’ rights to privacy and data protection by implementing technologies whose transparency and accountability cannot be ensured.[ix]

Nonetheless, it would be naïve to consider the digital environment as the only source of concern in question. Looking at the European Union as an example, recent challenges to the rule of law have spread in some Member States leading the European Commission to define a plan to safeguard this in the Union.[x] Even if the rule of law is a constitutive value, nonetheless this does not mean that it can be taken for granted. In recent cases, some Member States have questioned the stability of the rule of law from different sides. Just to mention a few, the declining independence and legitimacy of constitutional courts, together with high-level corruption and influence of the media, have led to wonder about the future of the Union and democracy.[xi]

The technological factor exacerbates and amplifies this troubling situation. Within this framework, it is worth wondering what is the role of constitutional law in the algorithmic society? How does constitutional law deal with new private powers threatening the principle of rule of law? Is constitutional law entitled to step in this and take any move which may be appropriate? If constitutional law is expected to step in, this requires either revisiting the definition of ‘power’ and/or including private powers in the scope of the same? In other words, how should constitutionalism evolve with a view to facing the challenges brought by the emergence of new forms of power in the algorithmic society?

Private Powers in Times of Pandemic

Technology has played a crucial role in empowering the private sector in the last twenty years. A general legislative inertia has been complemented by the rise of judicial powers as the primary player providing a first answer to the challenges of the information society.[xii] Beyond public powers, the freedom to conduct business has now gained a new dimension, namely that of private power, which – it goes without saying – brings significant challenges to the role and tools of constitutional law. Competition law and regulation, in fact, would no longer be sufficient to capture the functioning of these actors: increasingly, fundamental rights adjudication is directly involved and affected. The liberal approach taken by constitutional democracies in relation to digital technologies and online platforms has contributed to the transformation of economic freedoms into something that is resembling the exercise of powers as vested in public authorities.

One may actually wonder where the connection between algorithms and powers lies, apparently so far, in effect so close. Private actors other than the traditional public authorities are now vested with some forms of power, that is no longer of merely economic nature. The apparently strange couple ‘power and algorithms’ does actually make sense and triggers new challenges in the specific context of the rule of law. Algorithms, in fact, permit engagement in diverse activities that may significantly affect individuals’ rights and freedoms. Individuals may not notice that many decisions are carried out in an automated manner without, at least prima facie, any chance of control over them.

A broad range of decision-making activities are increasingly delegated to algorithms which can advise, and, in some cases, take decisions based on the data they process, so that ‘how we perceive and understand our environments and interact with them and each other is increasingly mediated by algorithms’.[xiii] In other words, algorithms are not necessarily driven by the pursuit of public interests, being instead sensitive to business needs. Said concerns are even more serious in light of the learning capabilities of algorithms, which – by introducing a degree of autonomy and thus unpredictability – are likely to undermine ‘accountability’ and the human understanding of the decision-making process. For instance, the opacity of algorithms is seen by scholars as a possible cause of discrimination or differentiation between individuals when it comes to activities such as profiling and scoring.[xiv]

The implementation of algorithms on a large scale has the potential to give rise to a further transmutation of the classic role of constitutionalism and constitutional theory, in addition to that already caused by the shift from the world of atoms to bits,[xv] where constitutionalism becomes ‘digital constitutionalism’ and power is relocated among different actors in the information society.[xvi] The statement needs an attempt at clarification. As it is well-known, constitutional theory frames powers as historically vested in public authorities, which by default hold the monopoly on violence under the social contract. It is no coincidence that constitutional law has been built around the functioning of public authorities. The goal of constitutions (and thus of constitutional law) is to allocate powers among institutions and make sure that proper limits are set on the same, with a view to preventing any abuse.[xvii]

The global pandemic has highlighted the relevance of online platforms in the information society. For instance, Amazon provided deliveries during the lockdown phase, while Google and Apple offered their technology for contact tracing apps. These actors have played a critical role in providing services which other businesses or, even the State, failed to deliver promptly. The COVID-19 crisis has led these actors to become increasingly involved in our daily lives, becoming part of our social structure. In other words, their primary role during the pandemic has resulted in these actors being thought of as public utilities.

Nonetheless, the model of the contact tracing app proposed by these tech giants aroused various privacy and data protection concerns.[xviii] Constitutional democracies have paid greater attention to the risks that contact tracing apps may entail for the rights and freedoms of citizens.[xix] In other words, the balancing between the right to health and the right to privacy on the one hand and respect for the rule of law on the other has blocked the adoption of certain measures with the potential to increase public surveillance. Here too, courts have played a critical role. For instance, the Israeli Supreme Court banned electronic contact tracing without statutory authorisation.[xx]

The original mission of constitutionalism is to set some mechanisms to restrict government power through self-binding principles, including by providing different forms of separation of powers and constitutional review. Therefore, the constitutional challenges of the algorithmic society require one to deal not only with the troubling legal uncertainty relating to new technologies but also the limits to private determinations,[xxi] driven by automated decision-making systems affecting fundamental rights’ and democratic values.

Disinformation and Digital Populism

Among the challenges for the principle of the rule of law in the algorithmic society and in times of pandemic, disinformation deserves special attention.[xxii] The spread of false content online has raised concerns for countries around the world. The Brexit referendum, the US elections in 2016 or health misinformation are just some examples of the power of (false) information to shape public opinion. The relevance of disinformation for the principle of the rule of law can be looked from two angles: the constitutional limits to the regulatory countermeasures and the spread of narrative undermining constitutional and democratic values.

From the first standpoint, addressing disinformation entails dealing with the boundaries of freedom of expressions. The decision to intervene to filter falsehood online requires questioning whether and to what extent it is acceptable for liberal democracies to enforce limitations to freedom of expression regarding falsehoods. This is a multifaceted question since each constitutional system paradigm adopts different paradigms of protection even when they share the common liberal matrix like in the case of Europe and the United States. In other words, it is a matter of understanding the limits of freedom of speech to protect legitimate interests or safeguard other constitutional rights. This is why the principle of the rule of law cannot be neglected when defining the boundaries to address the fight against disinformation online in constitutional democracies.

Besides, since the spread of disinformation in the digital environment, the role of online platforms in defining the criteria to moderate false content is another challenge for constitutional democracies. Once Facebook and Google sent their moderators home, the effect of these measures extended to the process of content moderation, resulting in the suspension of various accounts and the removal of some content even though there was no specific reason for this.  This situation has not only affected users’ right to freedom of expression but has also led to discriminatory results and the spread of disinformation. Generally speaking, it is worth observing that the solidarity expressed during the pandemic has also been mediated by the role of online platforms at the heart of individuals’ lives and relationships.

Nonetheless, it is not just a matter of ensuring the principle of the rule of law when public actors restrict freedom of expression or private powers impose their standards of protection globally. In recent years, the rise of new (digital) populist narratives manipulating information for political purposes through a populist constitutional grammar.[xxiii] By exploiting social media as public spaces, populist voices have become a relevant part of the public debate online as also the political situation. [xxiv] It would be enough to mention the electoral successes of Alternativ für Deutschland (AfD) in Germany or the Five Star Movement in Italy to understand how, in these years, populist narratives have widespread no longer as an answer to the economic crisis but as anti-establishment movements fighting globalized phenomena like migration and proposing a constitutional narrative unbuilding democratic values and the principle of the rule of law.[xxv]

The digital environment seems to be a perfect environment for populism, precisely to advance their mission to challenge democratic values.[xxvi] This new framework is a perfect opportunity to reach and influence public opinion by relying on social media to spread political ads using micro-targeting techniques. Within this system, political strategies have changed. Populist movements have tried to follow mainstream trends and controversial rhetoric to capture users’ attention and lock them in their information bubble. Populists use social media as direct communication channels to overcome traditional filters or gatekeepers.[xxvii] Besides, traditional media outlets fall for this trap and increase their reach by giving spaces in their larger platforms even through unfavourable coverage.[xxviii] Social media allow populist narratives to reach different targets of population and talk directly with people. This is the realization of one of the populist dreams: limiting trust in professional media and having a direct relationship with people to take decisions. In other words, the digital environment provides a way for populism to flourish and better support their narrative showing that they are closer to people than supranational powers hidden in bureaucracy, the media owned by the wealthy and political establishment and the fallacies of the representative democracy. The detection of “parasitic” and manipulative use and abuse of the categories constitutional law by populist narratives has been quite convincingly done in relation,[xxix] for instance, to sovereignty,[xxx] will of the people,[xxxi] and constituent power[xxxii].

However, it is worth underlining that, when relying on digital technologies, populist groups and leaders are exercising constitutional rights and liberties, so they are acting within the constitutional framework. However, they exploit it for their purposes. Populist movements rely on constitutional safeguards such as freedom of expression to share opinions and ideas which inevitably undermine the same values allowing them to perform this right in a democratic society. In other words, they exploit constitutional values to run their unconstitutional project.[xxxiii] Besides, when they use social media, they also exercise other pluralist values like freedom of assembly and association which allows everyone to participate in social and political life, including those minorities against whom populism aims to fight as threats to the unity of the people. This situation does not apply just to the online environment but also to other constitutional norms and safeguards. Populists cannot bring to reality their electoral program in the anti-law principle part.[xxxiv] The digital populist narrative is coherent with this approach. They also use social media as an alternative tool to challenge traditional media by dismantling dissent and making difficult the possibility to disagree. This framework is also connected with the spread of disinformation. Social media have shown to be one of the primary fields where political parties support their extremist theses which often overcome the threshold of truthfulness.[xxxv]

Therefore, once we agree on the relevance of the technological factor, we should wonder how to address digital populism which threatens the rule of law and to what extent this phenomenon can transform democratic values. As already observed, populism seems to be one of the prices democracies should pay to tolerate pluralism. Nonetheless, this does not mean that the price should be high. Therefore, the focus moves to the remedies to address this situation using those constitutional instruments which populism criticizes.

Reframing Constitutional Law in the Algorithmic Society?

In the algorithmic society, the rule of law is under pressure from multiple sides.Algorithmic technologies have contributed to introducing new paths for innovation producing positive effects for the entire society, including fundamental rights and freedoms. Nonetheless, the domain of inscrutable algorithms which characterize contemporary societies, challenges the protection of fundamental rights and democratic values while encouraging lawmakers to find a regulatory framework balancing risk and innovation considering the role and responsibilities of private actors in the algorithmic society. The global pandemic has amplified the concerns relating to online platforms as transnational private powers exercising forms of public functions.

The rise of digital private powers challenges the traditional characteristics of constitutional powers, thus, encouraging reflection on how constitutional law could evolve to face the challenges brought by the emergence of new forms of powers in the algorithmic society. We believe that potential answers to address this situation can be found by looking at constitutional law. Constitutions have been designed to limit public, more precisely governmental, powers, to protect individuals against any abuse by the state. In recent years, however, the rise of the algorithmic society has led to a paradigmatic change where the public power is no longer the only source of concern for the respect of fundamental rights and the protection of democracy. This would lead to redrawing the relationship between constitutional law and private law, including the duties to regulate the cybernetic complex, within or outside the jurisdictional boundaries.

 

 

 

[i]Monroe E. Price, ‘The Newness of Technology’ (2001) 22 Cardozo Law Review 1885.

[ii]Steven Malby, ‘Strengthening The Rule of Law through Technology’ (2017) 43 Commonwealth Law Bulletin 307.

[iii]Mireille Hildebrandt, ‘The Artificial Intelligence of European Union Law’ (2020) 21 German Law Journal 74.

[iv]Jeremy Waldron, ‘The Concept and the Rule of Law’ (2008) 43(1) Georgia Law Review 1.

[v]Recent rulings of the European Court of Justice have highlighted the relevance of the rule of law in EU legal order. See Case C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas; Case C‐216/18 PPU, LM; Case C-619/18, Commission v Poland (2018).

[vi]Martin Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’ in Gianlugi Palomblla and Neil Walker (ed), Relocating the Rule of Law 45 (Hart 2009).

[vii]Micheal D. Birnhack and Niva Elkin-Koren, ‘The Invisible Handshake: The Reemergence of the State in the Digital Environment’ (2003) 8 Virginia Journal of Law & Technology 1.

[viii]Giovanni De Gregorio, ‘Democratising Content Moderation: A Constitutional Framework’ (2020) 36 Computer Law & Security Law Review 105374.

[ix]Serge Gutwirth and Paul De Hert, ‘Regulating Profiling in a Democratic Constitutional States’, in Mireille Hildebrandt and Serge Gutwirth (eds), Profiling the European Citizen271 (2006).

[x]Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, Strengthening the Rule of Law within the Union. A Blueprint for Action COM(2019) 343 final.

[xi]Wojciech Sadurski, Poland Constitutional Breakdown(Oxford University Press 2019); Gabor Halmai, ‘A Coup Against Constitutional Democracy: The Case of Hungary’ in Mark A. Graber and others, Constitutional Democracy in Crisis?(Oxford University Press 2018).

[xii]Oreste Pollicino, Judicial Protection of Fundamental Rights on the Internet. Toward Digital Constitutionalism?(forthcoming Hart).

[xiii]Brent D. Mittelstadt et al., ‘The Ethics of Algorithms: Mapping the Debate’ (2016) 3(2) Big Data & Society.

[xiv]Danielle K. Citron and F. Pasquale, ‘The Scored Society: Due Process for Automated Predictions’ (2014) 89 Washington Law Review 1; Tal Zarsky, ‘Transparent Predictions’ (2013) 4 University of Illinois Law Review 1507.

[xv]Nicholas Negroponte, Being Digital(Alfred A Knopf 1995).

[xvi]Giovanni De Gregorio, ‘The Rise of Digital Constitutionalism in the European Union’ International Journal of Constitutional Law, forthcoming.

[xvii]Andras Sajo and Renata Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism(Oxford University Press 2017).

[xviii]Jennifer Daskal and Matt Perault, ‘The Apple-Google Contact Tracing System Won’t Work. It Still Deserves Praise’ Slate(22 May 2020) <https://slate.com/technology/2020/05/apple-google-contact-tracing-app-privacy. html>.

[xix]Oreste Pollicino, ‘Fighting COVID-19 and Protecting Privacy under EU Law. A Proposal Looking at the Roots of European Constitutionalism’ EU Law Live (16 May 2020) <https://eulawlive.com/weekend-edition/weekend-edition-no17/>.

[xx]Israeli Supreme Court, Ben Meir v Prime Minister, HC 2109/20, 26 April 2020. See Elena Chachko, ‘The Israeli Supreme Court Checks COVID-19 Electronic Surveillance’ Lawfare(5 May 2020) at https://www.lawfareblog.com/israeli-supreme-court-checks-covid-19-electronic-surveillance.

[xxi]Nicolas Suzor, ‘Digital Constitutionalism: Using the Rule of Law to Evaluate the Legitimacy of Governance by Platforms’ (2018) 4(3) Social Media + Society.

[xxii]Giovanni Pitruzzella and Oreste Pollicino, Hate Speech and Disinformation: A European Constitutional Perspective(Bocconi University Press 2020).

[xxiii]Oreste Pollicino, ‘Populist Constitutional Grammar, between Manipulative Borrowing and Bad (Judicial) Masters’ in Adam Czarnota, Martin Krygier, and Wojciech Sadurski (eds), Constitutional Populism (forthcoming).

[xxiv]Maurizio Barberis, Populismo digitale. Come internet sta uccidendo la democrazia(Chiarelettere 2020).

[xxv]Giacomo Delle Donne and others, Italian Populism and Constitutional Law. Strategies, Conflicts and Dilemmas(Palgrave Macmillan 2020).

[xxvi]Jan-Werner Müller, What Is Populism? (University of Pennsylvania Press 2016).

[xxvii]Ralph Schroeder, ‘Rethinking Digital Media and Political Change’ (2018) 24(2) Convergence: The International Journal of Research into New Media Technologies 168.

[xxviii]Whitney Phillips, ‘The Oxygen of Amplification’ Data & Society (2018).

[xxix]Théo Fournier, ‘From Rhetoric to Action, A Constitutional Analysis of Populism’ (2019) 20(3) German Law Journal 362.

[xxx]Aristotle Kallis, Populism, Sovereigntism, and the Unlikely Re-Emergence of the Territorial Nation-State (2018) 11(3) Fudan Journal of the Humanities and Social Sciences 285.

[xxxi]Luigi Corrias, ‘Populism in a Constitutional Key’ (2016) 12(1) European Constitutional Law Review 6;Margaret Canovan, ‘Taking Politics to the People: Populism as the Ideology of Democracy’ in Yves Meny and Yves Surel (eds), Democracies and the Populist Challenge25(Palgrave 2002); Nadia Urbinati, Democracy and Populism(1998) 5(1) Constellations 110.

[xxxii]Rosalind Dixon, ‘Introduction – Public Law and Populism’ (2019)20(2) German Law Journal 125.

[xxxiii]Paul Blokker, ‘Populist Counter-Constitutionalism, Conservatism, and Legal Fundamentalism’ (2019) 15(3) European Constitutional Law Review 519.

[xxxiv]Théo Fournier, ‘From Rhetoric to Action, A Constitutional Analysis of Populism’ (2019) 20(3) German Law Journal 362.

[xxxv]Judith Bayer and others, ‘Disinformation and Propaganda – Impact on the Functioning of the Rule of Law in the EU and its Member States’ (2019).

 

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