Artificial Sovereigns: A Quasi-Constitutional 2Nd For Tech?

K. Sabeel Rahman

Consider the next developments:

• In recent weeks, the explosive revelations nearly Cambridge Analytica too its systemic data-mining of Facebook profiles has cast into relief the way inwards which our contemporary digitized populace sphere is non a neutral scheme of communication but rather a privately built too operated scheme of volume surveillance too content manipulation.
  
• Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, volition stimulate got over administration of a major redevelopment of share of Toronto’s waterfront, inwards an elbow grease to construct from the Earth upward a modern “smart city.”
• These developments come upward amidst the longer-term evolution of novel forms of technological transformations of our political economy, from the ascension of Amazon to its pose equally the modern infrastructure for the retail economy, to the ways inwards which technology is transforming the nature of piece of work too the social security net.

There has been a growing feel of line of piece of work concern nearly the twin crises of twenty-first-century commonwealth on the i manus too of the growing problems of inequality too insecurity on the other. Technological alter is at the pith of both of these transformations. Technological alter alters the distribution too dynamics of political too economical power, creating novel forms of “functional sovereignty”—state-like powers concentrated inwards entities too systems that are non bailiwick to the institutional too moral checks too balances that nosotros associate with the practise of populace power. Such arbitrary powerfulness represents a sort of quasi-sovereignty that, left unchecked, poses a threat of domination.

The rich scholarly fighting on police line too technology has surfaced a hit of approaches for addressing some of these concerns, from legal standards for privacy too information exercise to antitrust too populace utility regulation, too more. These proposals too interventions tin can hold out reframed equally share of a broader challenge of defusing the threat of domination created yesteryear these technological systems. Regulating too responding to novel technologies too modern forms of economical too political powerfulness thus correspond a variation on familiar questions of populace police line too constitutional design: how to construction the practise of potentially arbitrary, state-like power, rendering it contestable, too so legitimate.

Defusing domination: a familiar employment of institutional too scheme design

The employment of concentrated power—whether inwards its public, private, or technological variations—is best conceptualized equally a employment of domination. In republican political thought, domination refers to the concentration of arbitrary, unchecked power. The remedy for domination is non necessarily the elimination of power, but to a greater extent than specifically the contestability of power. So long equally powerfulness is exercised inwards contestable, legitimate, too thus nonarbitrary ways, its practise tin can hold out consistent with freedom. Domination is thus prescriptive inwards that is suggests the remedy to arbitrary powerfulness is to honour ways to residual it with adequate mechanisms of argument too accountability.

The classic cases of defusing domination come upward from conventional traditions inwards constitutionalism too populace law. The threat of arbitrary tyrannical rule—of principal over slave, of tyrant over public—formed i of the fundamental dangers for constitutional design. The remedy for such threats tin can hold out constitute inwards conventional populace police line institutional pattern models: remove accountability through elections; institutionalized checks too balances through the separation of powers; structural limits on populace powerfulness through enumeration of governmental authorities too codification of rights-based limits.

Following the industrial revolution, a novel generation adapted the normative critique of domination too anti-domination institutional designs to the novel forms of private economical power unleashed yesteryear industrial capitalism. This was the intellectual revolution of the Progressive Era that prepare the phase for the New Deal transformation of American capitalism. For Progressive Era critics, i of the fundamental problems of the novel economic scheme was that private actors had accumulated a bird of state-like, quasi-sovereign influence on social, economic, too political life—but absent whatever of the checks too balances nosotros powerfulness require of populace sovereigns. The linguistic communication of sovereignty too arbitrary, dominating powerfulness suffused the writings of figures similar Brandeis, task republicans, legal realists, too more.

The response of these thinkers to the employment of privatized economical sovereignty launched some other quasi-constitutional founding minute for the industrial economy, start inwards the Progressive Era too culminating with FDR’s New Deal. First, a hit of legal developments sought to defuse the employment of concentrated corporate power: corporate governance mechanisms, antitrust laws limiting concentration, too populace utilities that converted private powerfulness into outright populace or quasi-public actors. Second, the creation of the modern administrative nation provided a machinery for populace oversight, a shape of indirect vocalism too accountability of the populace channeled through full general regulatory powerfulness inwards areas similar task relations, consumer protection, too securities regulation. At the same time, modern administrative police line transposed domination-defusing constitutional designs to diminish the threat of arbitrary administrative power. Finally, reformers created to a greater extent than robust forms of countervailing power, edifice volume crusade organizations especially only about labor.

The constitutionalization of populace powerfulness inwards the Founding too the New Deal compact only about economical powerfulness responded to a mutual prepare of problems with a mutual prepare of solutions. The employment inwards both is the potential creation of quasi-sovereigns that receive arbitrary, dominating power. The solution involves the evolution of legal institutional systems that create adequate checks too balances that defuse the threat of domination, rendering these forms of powerfulness accountable too legitimate.

A constitutional minute for tech?

Technology today presents a similar prepare of problems: state-like powers that increasingly principle our economic, social, too political life, even so be exterior the kinds of institutional checks too balances needed to foreclose domination. Some forms of techno-power are concentrated: the concentrated powerfulness of Facebook equally information platform structuring the digital populace sphere, or the concentrated powerfulness of Amazon equally platform for the retail economy. Other forms of techno-power are structural, to a greater extent than diffuse—such equally the proliferation of hidden algorithmic systems governing everything from workplace surveillance too administration to policing to economical opportunity assessments.

Both forms occupy a liminal infinite betwixt populace too private. They practise state-like powers of command too influence whether straight through platforms or indirectly through algorithmic systems, even so these powers are housed inwards nominally private actors. For instance, Uber, Airbnb, too similar services are effectively rewiring the patterns of zoning, Earth use, too urban menstruum inwards a subtle shape of implicit privatization, even so are non bailiwick to the formal processes that principle populace Earth exercise regulation. Facebook too Google similarly construction our populace sphere inwards both state-like too private ways.

We tin can pose 3 distinct species of anti-dominating institutional pattern to address these dissimilar forms of techno-power. First, nosotros powerfulness create systems to facilitate voice, participation, too accountability of power. This tin can hold out done directly, analogizing to the role of elections too participatory mechanisms inwards populace law. Or it tin can hold out achieved indirectly, yesteryear expanding regulatory oversight of techno-power, where that oversight is itself an facial expression of, too responsive to, the democratic public.

Second, nosotros powerfulness impose structural limits on the organizations themselves. Thus revived antitrust laws powerfulness inhibit the concentration of likewise much powerfulness too command inwards likewise few hands, breaking upward tech monopolies too data-opolies. We powerfulness “firewall” away dissimilar functions, preventing them from concentrating inwards the same raise companionship too thus mitigating potential conflicts of interest. If Amazon, for example, wants to operate equally a platform, it cannot also at the same fourth dimension create cloth for sale on that platform. H5N1 variation on organizational structural alter powerfulness hold out to tackle the corporate shape of tech companies themselves. Through changes to securities laws too corporate governance requirements, nosotros powerfulness alter the residual of interests too powers inside the line of piece of work solid itself, inwards ways that powerfulness improve align the corporate involvement with the populace interest.

Third, nosotros powerfulness create limits on techno-power too domination yesteryear altering non only the construction of tech firms, but the construction too dynamics of the larger marketplace pose systems inwards which they operate. Antitrust police line features hither equally well: share of what makes antitrust piece of work equally a strategy for preventing economical domination is non only its limits to the private firms’ size too powers, but also the ways inwards which it fosters a larger system of marketplace pose competitor that checks the powerfulness of whatever i firm. Other forms of regulation also shape marketplace pose structure: through changes to how code, AI, too algorithms operate, nosotros powerfulness create a to a greater extent than transparent, accountable, too self-managing system. H5N1 large information tax, for instance, would shift the ways inwards which tech firms deploy their technologically-mediated forms of powerfulness too influence.

I’ve previously suggested that these diverse tools tin can hold out applied to infrastructural tech firms inwards particular, regulating them equally public or quasi-public utilities. The populace utility framework inwards some ways combines all 3 of these approaches—oversight too accountability; changes to organizational structure; too changes to the larger marketplace pose system. On the populace utility approach, nosotros powerfulness pursue anything from outright nationalization of tech infrastructure, to the creation of populace options that compete amongst private actors, to the imposition of tight regulatory restraints that boundary private tech firms to acting equally de facto populace utilities.

In context of specific forms of techno-power, these diverse approaches are suggestive of a possible way forward. We powerfulness answer to Facebook’s command over the digital populace sphere through some combination of structural remedies—antitrust enforcement reducing concentration too creating to a greater extent than competitor for media platforms, for example—with populace options too populace utility-style regulations. The absorption of populace powers of urban planning—as inwards the Toronto instance with Sidewalk labs, or the de facto ceding of urban planning command yesteryear many cities to Airbnb, Uber, too other such platforms—could hold out addressed through other combinations: again, choosing amidst antitrust, populace utility, or populace oversight approaches.

From domination to democratic agency

Viewing the diverse problems posed yesteryear technology today through the lens of power, domination, too argument highlights a publish of full general conceptual points. First, the fundamental employment of technology is non so much discrete violations or actions of tech companies. Rather, nosotros should hold back to the underlying structure that makes these violations too actions possible.

Second, when nosotros shout out upward of how to answer to these problems of domination too power, the higher upward sketch suggests that nosotros must stimulate got a similarly broad, structural consider of what regulatory too public-minded responses hold back like. We powerfulness construct institutions for expanding remove vocalism too accountability, or for asserting greater oversight yesteryear populace regulators. Or nosotros powerfulness impose structural limits on the organizational forms too marketplace pose dynamics only about these firms.

Finally, at the highest bird of abstraction, these efforts to diagnose too and then defuse concentrations of powerfulness propose a to a greater extent than fundamental tradeoff at work. At some point, defusing domination volition necessarily require eliminating some forms of technological activity too innovation. But that is a pick nosotros should hold out willing to make. We tend to shout out upward of “innovation” equally a generic good. But taking domination seriously way effectively choosing betwixt some kinds of project design over others. To the extent that nosotros shout out upward technology too the powerfulness it creates too concentrates is not contestable or controllable, nosotros ought non to let its continuation. The application of domination-defusing institutional designs represents at beginning attempts to rebalance sovereignty too agency, to reassert the primacy of public too democratic command over the accumulation of private too autocratic control.

Cross-posted at Law too Political Economy

K. Sabeel Rahman is an Assistant Professor of Law at Brooklyn Law School too a Visiting Professor of Law at Harvard Law School.