Our Secret Rules

This pressure is not sustainable in the long term. No matter how benevolent and thoughtful tech executives appear to be, the lack of transparency and accountability will continue to breed allegations that they are uncaring, incompetent, biased, or even just downright evil. No matter how much technology companies protest, their central power as focal nodes on the internet makes them irresistible targets for people who want better control over users.

The core argument of this book is that because online intermediaries play such a crucial role in regulating how users behave, we should find a way to ensure that their decisions are legitimately made.

For this, we need what I call digital constitutionalism. Traditional constitutionalism focuses on power exercised by the state and is not well adapted to ensuring that the decisions of private actors are legitimately made. A more modern view of regulation can help us to understand that the type of power that intermediaries exercise over users is a type of governance power and that this power is subject to influence by a wide range of different actors. This recognition requires us to pay attention to the work that intermediaries do to govern the internet, as well as the different methods that state governments, the private sector, the media, and civil society use to influence the practices of intermediaries.

Once we recognize how the internet is governed in practice, it becomes clearer that traditional ways of thinking about how the exercise of power is made legitimate are no longer adequate to protect people online. There is no simple, single definition of what it means to govern legitimately. It is impossible to define, because it is a concept that depends fundamentally on context and constantly changes. People who exercise power have legitimacy because we collectively give it to them. So whether social media platforms, search engines, content hosts, telecommunications companies, and other entities are acting legitimately when they shape our actions and our environment depends on how much we expect from them.

This is still very much up for grabs; we are still in the early days of the commercial internet, and we do not yet have an easy answer or even common agreement on the exact shape of the limits people want to see imposed on the power of tech companies.

secret courts

Working out what limits we, as a society, want to impose on the exercise of power in the digital age is the first challenge of digital constitutionalism. Constitutionalism is fundamentally about the limitation of governance power; digital constitutionalism requires us to think about not just national governments but also about how the power that platforms wield ought to be limited. It is important to emphasize that digital constitutionalism does not mean we would want to treat private intermediaries as if they were exactly like nation states.

The high standard of legitimacy we hold governments to comes at a major bureaucratic cost.

It would be disastrous to try to apply these standards directly to private platforms and telecom providers. Human rights is probably the most powerful tool we have to encourage intermediaries to make their governance processes more legitimate. The language of human rights provides a universally agreed-upon set of values that governments and businesses should work to promote. The voluntary component of human rights compliance is already helping to set standards for what intermediaries should do, and it provides a guide for civil society to work cooperatively to amplify the pressure for more legitimate processes.

The frame of human rights can also guide governments to implement better laws, with binding legal obligations. Human rights do not enforce themselves, and they are not sufficient to hold technology companies accountable, but they do provide a common language that we can use to build consensus about what we expect from those who govern us.

The key next steps towards accountability in platform governance are both straightforward and very difficult. Platforms should immediately improve their transparency practices, focusing on how they can help people understand decisions that affect them and their systems as a whole.

They should hire human rights lawyers and empower them to review and advise about improving technical features and business practices. The rules that platforms develop should be clearer and better justified, and they must start to experiment with new systems of independent review and appeals processes that adequately deal with inevitable mistakes. The second challenge of digital constitutionalism is building enough consensus and enough social pressure to force technology companies to create their own constitutional limits.

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Rulers usually do not give up power voluntarily. We are at a constitutional moment now, where change might be possible but is by no means guaranteed. For all of us who care about how the internet is governed, now is the time to work together to hold power accountable. We need to make visible the influence that technology companies have on our lives and the influence that others have on them, in turn. We need to trace how governments and private interests regulate how we behave and communicate; what we can see and share; and how we live, love, and work through the technologies that we use.

(and why we need new digital constitutions that protect our rights)

For those of us who are academic researchers, this means we need to devise new research methods that can help us understand complex regulatory systems, made up of human and technical components, at massive scales, over time, and across national borders and platform boundaries. For this we will need better data, and we should be working with technology companies and governments to ensure that good data is made available and accessible for ongoing research.

We will also need new theory to understand how power can and should be held to account in a decentralized environment. And then we will need to mobilize.

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