Mammoth internet platforms, like Facebook and Google, regulate the behavior of billions of individuals. These companies set and enforce norms through user agreements, design, and algorithmic regulation. But users do not actively and consciously participate in these regulatory processes, which penetrate deeply into users’ lives. Public law is well equipped to deal with state sovereign power. Yet this body of laws finds itself helpless when facing platforms’ emerging political authority. This article analyzes the quasi-sovereign power of platforms, the threats it creates to users' political freedom and to the public sphere, and the theoretical trap that makes it difficult to address these risks. To resolve this bind, the article proposes the creation of legal structures that will allow users to self-manage via representative unions. The integration of users’ collective voice within the corporate governance of platforms could help to respect, protect and fulfill users’ political rights.
Facebook’s creation of an “oversight board” is the culmination of a protracted debate about Facebook’s role as a global speech regulator. The “Supreme Court of Facebook” will adjudicate Facebook’s “community guidelines” in light of human rights norms protecting free expression, thereby entangling a self-created platform standard with established (if contested) standards of legality under international (human rights) law. But Facebook’s oversight board bylaws limit its jurisdiction from the outset to cases which are not legally determined by “the law” – a determination to be made by Facebook’s internal legal department. This significantly curtails the oversight board’s ambit and power. It is also a missed opportunity for international human rights law. Facebook’s institutional design choices reveal a “flawed dualism” that treats the multiple legalities of online content as neatly separated instead of taking seriously their entanglement and potential for deliberative contestation.
FinTech disrupted banking and finance. The increasing use of algorithms transformed markets into networks of data-flows. The traditional vertical integration of services in few incumbent banks gave way to the unbundling of services into networks of vertical markets with multiple niche startup competitors. Not dominated by a few platforms, the FinTech sector is best described in terms of competing and intertwining normative networks: algorithms become vehicles of norms, firms produce technical standards and codes of conduct, they share infrastructure in banking-as-a-service and form alliances to profit from each other’s regulatory licenses. Similarly to platforms, though, these normative networks undermine traditional conceptions of law in terms of private norm production, the growing importance of compliance and ex ante regulation, the automation and delegation of regulation through RegTech algorithms and the increasing proximity of regulators through SupTech and regulatory sandboxes.