The emerging “Digital State” means ways of rethinking the nature, missions and organizational rules of the State. Two fundamental aspects can be in it identified: a) the relationship State/society, which moves from a dualistic mode to a reticular environment, and b) the State boundaries, moving from government to governance. Both of them have a thing in common: the stakeholders. The State’s evolution also implies an evolution in Public Law. In the Modern society, the State Law was developed in a dichotomy authority/freedom, which was legitimized by Public law norms. But, the shifts from government to data governance has multiple repercussions on the structuring notions of Public Law, that cannot remain impervious to the evolutions that affect state rationalities and engines. The paper aims to propose that the Digital State needs a “informational logic” of public law. It is necessary to think of a set of norms that comes within the common order of people, the stakeholders.
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.
Public debate and the crystallization of the public decision is more and more taking place outside Parliament, while the parliamentary institution is progressively transformed into a sort of notary of positions already voiced and established outside its walls. This leads to a growing discrepancy between the formal decision-making process of legislative assemblies, on the one hand, and the formation of the institutional opinion ‘outside parliament’, through social media and other modern methods of public expression on the other.
The members of Parliament are themselves contributing to this development : they openly admit that these channels of expression are more visible and efficient in terms of popularity and political influence ; MP’s who are not on social networks are not visible and risk not to be reelected.
What attitude constitutional law should adopt vis-à-vis this evolution ?
Should it try to discourage them, adapt to them, or should it remain passive ?
Last decades, the idea that transparency is the key to solving different government problems has been popularized. One of the central policies has been the enactment of Freedom of Information Laws that allow citizens to request information and oblige governments to make proactive disclosures of data. By 2020, more than 120 countries had passed a FOI law, but some case studies suggested several countries have not obtained the expected outcomes because they did not pay much attention to the enforcement. Consensus in literature is the strongest enforcement mechanism is the creation of Information Commissioners to solve the complaints and promote transparency, and they need independence and resources to achieve their goals.
By using international quantitative data, I have tried to prove if FOI Laws and Information Commissioners improve transparency. Results suggest that the promulgation of FOI Laws has a strong effect on transparency, but no other variable appears to have any effect.
The digital revolution threatens constitutional democracy by creating an arena where political power can maximize its authority with little accountability. In such context, Telegram has emerged as the new stronghold for right-wing supporters. The lack of strict governance mechanisms casts doubts on its content moderation. In this sense, users have felt free within the platform to share anything, knowing that they cannot be held responsible. An interesting question has arisen: are there constitutional grounds for shutting down Telegram? The response challenges the definition of constitutional sovereignty. However, if freedom cannot be used as an excuse for violating the law, it cannot be used to safeguard a deregulated platform in which the law is being actively violated. Otherwise, accepting the platform’s refusal to cooperate would account to constitutional impotence to face the digital arena. Therefore, banning the application becomes not only justified but necessary.