Regulating the Regulator? How the Rise of Private Online Governance Reshapes the Separation of Powers

Information societies are governed by a mixture of public and private ordering. Laws and regulations set and executed by public authorities coexist with the code, algorithms, and community standards set and executed by private corporations. The increasing regulatory role played by private actors in the digital domain has given rise to a range of practices through which technology companies deliberately constrain public actors to avert or restrict various forms of what they consider as government overreach. These practices take place across different types of interactions between companies and governments, including privatization, information sharing, inverse regulation, and outsourcing, through which the public regulator becomes the target of private regulation and the subject of private governance. In this paper, I document, conceptualize, and explore the motivations and normative implications of the emerging phenomenon of private online checking and balancing.