Anna Su explores digital constitutionalism and the futures of digital governance
The rise of the information society and the ubiquity of digital technologies brings new challenges for governance, as traditional institutions might not be sufficient to address the complex issues emerging from these new tools. In a talk at Absolutely Interdisciplinary 2022, SRI Faculty Fellow Anna Su explored the phenomenon of digital constitutionalism and the importance of human rights to balance powers in the digital realm.
It’s hard to dispute our growing interdependence on digital technologies, particularly in the light of the recent global pandemic. Most digital technologies we use today, from search engines to marketplaces to social media, are platforms managed by private corporations that are incentivized to maximize profit, often through metrics such as increased sales conversions or engagement time.
Platforms often rely on techniques such as advanced data collection and machine learning techniques to optimize for their competitive advantage. However, better payoffs for private corporations do not necessarily mean greater social benefits for all, especially considering our increased dependence on such technologies and the emergence of phenomena like surveillance capitalism. How can we be confident that our use of digital platforms leads to greater social good?
Unlike those who believe regulation could curb innovation, Anna Su urges that regulating digital platforms is a growing necessity, and views the emergent phenomenon of digital constitutionalism as an essential step in this regard.
Su is an associate professor in the Faculty of Law at the University of Toronto with a cross-appointment in the Department of History, and a 2021–23 Faculty Fellow at the Schwartz Reisman Institute for Technology and Society. Her research explores the intersection of digital technologies and law, with a focus on international human rights.
In a talk at Absolutely Interdisciplinary 2022, a conference hosted by the Schwartz Reisman Institute that assembled a wide range of researchers to address today's technological landscape, Su explored how the terms and conditions set by private sovereigns are shaping our digital public spaces, and why a digital constitutionalism grounded in a human rights-based framework offers a potential approach to regulating and governing digital spaces.
Anna Su
Defining digital constitutionalism
Though digital constitutionalism has no precise definition, Su outlined how various scholars have defined it in recent years along themes of limiting the exercise of power and the protection of fundamental rights in digital spaces. While many definitions rely on concepts from state-centred constitutionalism that have been adapted to the digital sphere, Su contended a digital charter of rights would be most effective by moving beyond a state-centred conception, and towards an internationalist framework. Su also noted that while the adaptation of existing rights to a digital context is essential, we must also conceive of and develop new rights that are specific to digital environments.
Su highlighted three key reasons why it is beneficial to study the phenomenon of digital constitutionalism. First, Su highlighted the concern of “path dependence”: without a critical awareness of the political and narrative origins of the internet, including its idealistic theses of open access and transparent protocols, we risk being unable to understand how past errors have resulted in the “walled gardens” of the current framework that dominates online spaces. Secondly, it enables us to design more just and inclusive governance frameworks for our digital realities, including algorithmic societies and the metaverse. Third, digital constitutionalism provides us with an opportunity to deepen our understanding of the shortcomings of liberal constitutionalism. In doing so, Su contends digital constitutionalism provides us with an opportunity to “get rights right.”
Safeguarding human rights online
Protecting human rights on digital platforms and defending against how digital platforms can infringe on our rights in the real world, is the central idea of digital constitutionalism. Observing that studies to safeguard human rights online date back to discussions on the Internet Bill of Rights in the 2000s, Su highlighted that the UN Human Rights Council adopted a resolution in 2016 articulating that people’s rights offline must be protected online.
Some organizations have actively pushed for the creation of digital rights at the international or supranational level, such as the European Union’s General Data Protection Regulation and the African Declaration on Internet Rights and Freedom. Many nations are also involved in protecting their citizens’ privacy online. For example, Spain released a Charter of Digital Rights in July 2021, and Canada's federal government recently introduced Bill C-27, a new digital charter that would reshape privacy rules and provide a new regulatory framework for artificial intelligence.
Other non-state actors, including non-profit organizations such as ICANN, also drive active discussions on open and transparent access. Private corporations also have initiated voluntary self-regulating initiatives, such as Facebook’s Oversight Board, or adhering to a wide range of ethical principles and guidelines in developing AI systems. These practices could potentially lead to emerging norms and contribute to digital constitutionalism.
Nonetheless, it is necessary to admit the limited mechanisms for enforcing digital rights—a factor that is especially impacted by geographical state boundaries. Furthermore, AI systems can often be a black box, whose apparent harms only manifest themselves later, rather than immediately. Despite these limitations, Su reasons that a digital constitution, grounded in a human rights-based framework and set by monitoring and regulating bodies, carries some global legitimacy and hence is a worthwhile starting point.
Moving forward
Su believes the project of digital constitutionalism provides an unprecedented opportunity and offers three suggestions for leveraging this. First, we must apply and broaden our understanding of existing rights frameworks to the digital sphere. Second, active work on digital constitutionalism will need to recognize a new vocabulary of rights that are unique to digital spaces and contexts, because tailored vocabulary can increase the legitimacy of claims. Third, Su states that digital constitutionalism must go beyond judicial enforcement: our framework for digital rights must be understood as a touchstone for instilling shared values such as equality, democracy, and the rule of law by providing a code of conduct.
In the discussion that followed Su’s talk, participants raised questions that addressed a wide range of implications for digital constitutionalism, including how such principles might be operationalized in a technical context, legal implications, questions of cybersecurity and data collection, and how digital rights may continue to change as technologies develop further.
Given both the expansive scope and ambition of the question of digital rights, alongside the stakes involved—especially given the continued rising importance of online environments—it is clear the conversation around digital constitutionalism is only just beginning, and Su looks forward to continuing to develop her ideas as part of her ongoing fellowship at the Schwartz Reisman Institute.
Watch the full session:
About the author
Shashank Motepalli is a PhD student in the Department of Electrical and Computer Engineering at the University of Toronto under the supervision of Professor Hans-Arno Jacobsen, and a 2021–22 Schwartz Reisman Graduate Fellow. Motepalli researches the design and analysis of blockchains systems, with a focus on consensus protocols while ensuring decentralization and incentive design to ensure compliant behaviour.
