Critique of digital constitutionalism: Deconstruction and reconstruction from a societal perspective

Digital constitutionalism is a strand of scholarship that focuses on the relationship between constitutional law and the socio-legal challenges posed by the digital revolution. However, such scholarship often builds uncritically on the tenets of liberal, state-centred constitutional theory, giving rise to contradictions between analytical starting points and normative aspirations. Against this background, with an approach inspired by societal constitution-alism, this article engages with digital constitutionalism as both an object and a means of critique. As an object, digital constitutionalism is assessed in the light of its contradictions. As a means, digital constitutionalism is used to assess the limits of traditional, liberal, state-centred constitutional theory. In other words, societal constitutionalism is the theoretical lens used to both deconstruct and reconstruct digital constitutionalism according to its normative aspirations. The article has three main goals: first, linking different discourses within digital constitutionalism, highlighting its critical potential; second, advancing some proposals based on such reflections; and third, bringing digital constitutionalism closer to the broader global constitutionalism discourse. After an overview of societal constitution-alism, the article focuses on digital constitutionalism ’ s definition and three functionally differentiated systems: politics, economy and law. For each of them, it highlights analytical and normative gains deriving from the societal constitutionalism-based approach as well as policy proposals to be developed further.


I. Introduction
On 10 November 2021, the UK Supreme Court (UKSC) delivered a landmark judgment in the case Lloyd v Google. 1 Mr Lloyd, former executive director of a consumer watchdog, had sued Google for damages on his behalf and that of other residents of England and liberal constitutionalism as an unquestioned 'good' matrix, whose principles need to somehow be injected into the digital sphere. 6In other words, such scholarship hardly assesses the traditional assumptions of constitutional theory critically.7Among them, one might include the relatively rigid state/society and public/private divides; the focus on political power as the main focus of constitutional normativity; the rigid divide between national and international/global legal systems; state-centred legal monism; the static conception of law, detached from the time and means of its application/dissemination; the conception of legal subjects as rational, self-authorized actors, 'free' from concrete societal constraints and the effects of information overload/asymmetries; and an overreliance on courts for the effective protection of rights.
In an age where the pervasive impact of digital technologies on 'everyday life'8 is becoming increasingly apparent, this relative lack of self-reflection results in a tension between analytical starting points and policy proposals.Digital constitutionalism's political rationality (the possibility to think the given otherwise) is hardly accompanied by a critical phenomenology (the forcing to appear). 9I suggest that such tension is problematic in relation to digital constitutionalism's transformative possibilities.Against this backdrop, this article has two main goals; first, linking different discourses within digital constitutionalism, highlighting its critical potential; and second, advancing some proposals based on such reflection.In this sense, the article does not outline a distinct strand of digital constitutionalism, but rather a specific perspective, a reconstruction in the light of elements sparsely present in it.
The goals of the article are reflected in its title, which plays on the ambivalence of the connective of: digital constitutionalism is both the object and the means of critique.As an object, the article assesses digital constitutionalism in the light of its inner tension.As a means, the article uses digital constitutionalism to assess the intrinsic limits of liberal constitutional theory in one of the most relevant societal spheres of world society.Understanding digital constitutionalism as a critical theory of constitutionalism 10 may help cope with its inner tension, thus strengthening its normative thrust and giving more coherence to research and policy agendas.At the same time, the (unavoidably partial) attempt to keep many legal discourses on digital technologies together contributes to the de-fragmentation of digital constitutionalism.In that sense, this article contributes to both the deconstruction and the reconstruction of (digital) constitutionalism.
In order to highlight digital constitutionalism's critical potential, the article resorts to societal constitutionalism, one of the theoretical frameworks used in the global constitutionalism literature. 11References to such a framework are frequent, especially regarding the emergence of new forms of normativity within the regulatory spaces opened by digital technologies. 12Even without subscribing to societal constitutionalism, authors often refer to it in matters of transnational private regulation, (global) legal pluralism and disputesettlement. 13However, digital constitutionalism authors use societal constitutionalism primarily to account for 'constitutional' norms within the regulatory spaces opened by digital technologies.Such use leaves the impression that societal constitutionalism only legitimizes new forms of governmentality.In contrast, this article deploys societal constitutionalism to bring the critical/transformative potential of digital constitutionalism out.By this means, it also pursues a third goal: bringing digital constitutionalism close(r) to the broader galaxy of global constitutionalism. 14art II provides an overview of societal constitutionalism, highlighting its elements of critique, while Part III reconciles societal constitutionalism and digital constitutionalism, focusing on the latter's definition and three functionally differentiated systems, namely politics, economy and law.For each of them, it highlights the analytical and normative gains for digital constitutionalism of a societal constitutionalism perspective, pointing to some proposals that require further development.Part IV concludes the article.11 Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford University Press, Oxford, 2012); Angelo Jr Golia and Gunther Teubner, 'Societal Constitutionalism: Background, Theory, Debates' (2021) 15 Vienna Journal of International Constitutional Law 357.On societal constitutionalism as a strand of global constitutionalism, see Antje Wiener, Anthony F Lang, James Tully, Miguel Poiares Maduro and Mattias Kumm, 'Global Constitutionalism: Human Rights, Democracy and the Rule of Law' (2012) 1 Global Constitutionalism 1, 7.
12 Lex Gill, Dennis Redeker and Urs Gasser, 'Towards Digital Constitutionalism?Mapping Attempts to Craft an Internet Bill of Rights ' (2018)   Law and Technology (forthcoming).Róisín Á Costello, 'Faux ami?Interrogating the Normative Coherence of "Digital Constitutionalism"' (2023) Global Constitutionalism 1, 7, points to how digital constitutionalism adopts the 'descriptive rhetoric of constitutionalism'.It seems, however, that Costello's criticism does not capture the inner richness of digital constitutionalism's discourse. 13Christopher Kuner, Transborder Data Flows and Data Privacy Law (Oxford University Press, Oxford, 2013) 160ff; Lee A Bygrave, Internet Governance by Contract (Oxford University Press, Oxford, 2015); Nicolas Suzor, Lawless: The Secret Rules That Govern Our Digital Lives (Cambridge University Press, Cambridge, 2019) 115-25; Matthias Kettemann, The Normative Order of the Internet: A Theory of Rule and Regulation Online (Oxford University Press, Oxford, 2020) 185-95.
14 Understood as the legal-political discourse addressing questions related to rights, democracy and the rule of law in and through their transnational/global dimension: see Wiener et al., Global Constitutionalism (n 10).

II. Societal constitutionalism as a critical theory
The state/society divide Original elaborations of societal constitutionalism focused on the difficulty of liberal constitutional theory in detecting social authoritarianism in conceptual terms, even when state structures remain formally liberal-democratic. 15Such drifts, as societal constitutionalism authors note, are structural rather than accidental tendencies of modernity, rooted in fragmented meaning, instrumental calculation, bureaucratic organization and charismatic leadership.Confronted with such processes, liberal constitutionalism's concepts may at best address selected sets of purposefully arbitrary exercises of collective power by private actors, but many mechanisms of social control escape them, especially inadvertently arbitrary exercises of collective power.One might think of the organizational design of pharmaceutical research and industry, which opens up the possibility of data manipulation, with harmful effects on people's health and science generally.Similarly, the academia/science complex, based on cooptation, reputation and quantification of teaching and research, triggers publish-or-perish, ghost-writing, citation cartels, manipulation of data and mental health distress, disproportionately affecting subaltern groups. 16The design of organizations dealing with sexual assault often contributes to the reproduction of power structures, victim (self-)marginalization and gender (micro-) violence. 17he examples could continue.The point is that counteractions to authoritarian drifts and conditions for non-authoritarian social change cannot be based only on separation of powers, due process, fundamental rights or judicial review in their state-centered perspective.Negative externalities generated by different societal processes should also be addressed through ecologically orientedrather than strictly rational/instrumentalreciprocal limitations among collective actors and social systems, centred around normproducing institutions within society.
Societal constitutionalism also critiques liberal constitutionalism's relatively rigid state/society divide.In this sense, it does not overcome, but rather reframes, the public/ private divide, individuating relationships of authority/domination within relatively autonomous spheres of civil society and focusing on both purposeful and inadvertent forms of social control in the relationships with 'private' governments.
Early societal constitutionalism focused on formal organizationsbureaucratic apparatuses, corporations, parties, churches.Notably, building on Luhmann's theory of functional differentiation and an autopoietic conception of law, Gunther Teubner has in addition incorporated issues related to the autonomization/transnationalization of social processes triggered by globalization. 18The following sections highlight the points most relevant to our purposes.

Functional systems and communication media
Societal constitutionalism focuses on politics, economy, press, science and so on as functionally differentiated systems of modern society and on their distinct 15 David Sciulli, communication media (power, money, information, truth, etc.). 19By these means, it expands the target of constitutionalism.Constitutional problems do not derive just from the power imperative of politics or the monetization imperative of economy, but also from the knowledge imperative of science, the innovation imperative of technology, the news/information cycle imperative of the press and the juridification imperative of law.Threats to human and ecological integrity thus derive also from depersonalized processes linked to the reproduction/accumulation of power, money, information, knowledge and juridical authority. 20Effective constitutionalization, then, takes place only if and to the extent that norms emerging within and between social systems perform both constitutive and limitative functions towards such communication media. 21e internal/external divide Societal constitutionalism also focuses on the transnationalization/autonomization of systems, stressing how constitutional questions related to organizationsstates, corporations, international organizationsand regimes, such as global politics, international investment law and global science, increasingly emerge and need to be addressed beyond states' territorial borders.In other words, societal constitutionalism focuses on the fact that globalization changed existing questions by moving them at the level of the world society, whereas states and international politicswhile remaining central 22 determine social evolution less than before. 23At the same time, to the extent that globalization consists in the competitive alignment of nationalespecially welfaresystems, state-centred constitutionalism simultaneously enables the global expansion of capitalist exploitation and obstructs the very possibility of thinking and acting in terms of transnational counteractions, and particularly of transnational solidarity and democracy. 24nstitutionalism beyond the state Like other strands of global constitutionalism, 25 societal constitutionalism embraces legal and constitutional pluralism.It argues that, with globalization, legal systems go through a fragmentation whereby different, interconnected systems increasingly develop their own norms.Such 'fragments' do not exist in a vacuum, but rather interact with each other and with the environment according to different legal/illegal distinctions,26 ultimately based on distinct principles of legitimacy.For example, the global investment regime is sustained by both formal and informal normative instruments as well as by national and international instruments.27However, its concrete operation is determined by standards of legitimacy oriented to the protection of investment capitalthat is, to the profit accumulation imperative. 28n this constellation, effective constitutionalization may occur only if the norms emerging within and between such functional systems constitute and constrain the communication processes that, especially following globalization, have been partially 'freed' from the constraints of state-centred politics.Societal constitutionalism argues that at the level of world society, with no authoritative third instance, such a result can only be reached if sufficient external pressures are exercisedfor example, political demands over economic processes and the other way aroundand their internal structures are open to such external demands.
To sum up, societal constitutionalism questions the identification of law with state law and problematizes the link between state and constitution.By these means, it opens to the possibility of constitutionalization processes not exclusively centred around states.From a normative perspective, such a pluralist view means building a theory of collisions suited to the emergence of normative systems of qualitatively different nature. 29ertainly, states retain a central role in generating external pressures and designing the internal normative infrastructures of other systems.Moreover, alternative arenas of contestation, discussion, and decision-making complement rather than replace state politics.At the normative level, this view calls for reconciliation and productive use of impulses coming from states and their constitutions; and for the strengthening of the learning capacities of other systems.In this respect, and importantly, societal constitutionalism does not necessarily advocate for "less government" and/or private (self-) regulation.Rather, it calls for strategies taking into consideration the existence of nonstate normativities, productively combining them in regulatory mixes which ultimately strategize the specific reflexivity of each social field.

Law as an autopoietic system
Societal constitutionalism is based on an autopoietic conception of law 30that is, a social theory of law incorporating the fundamental paradoxes of modern law: self-validation and circularity.Under such conception, law is not a set of static norms, removed from social time and context.Instead, it is a social system itselfthat is, a system of meaning, of socially constructed communications, based on its own code: the legal/illegal distinction. 31Its fundamental function is the generalization/stabilization of normative expectations.
Under the autopoietic conception, both the emergence and the reproduction of legal systems are constrained by the need to perform their function and preserve their operational autonomy.In other words, law can generalize/stabilize normative expectations emerging from its social environmentfor example, moral, religious and economic normsonly if it does not immediately identify with them.Law can 'read' and solve conflicts emerging from society only through the legal/illegal distinction, continuously reframed by its own internal operations: legal procedures, acts, norms, doctrinal concepts.In this sense, law generates its own validity through the internal translation/ misunderstanding of impulses coming from its environment.Re-elaborated through 'productive misreadings', 32 such impulses are given legal meaning through chains of communication based on the legal/illegal distinction.Legal systems emerge, 'live', and perform their societal functions by permanently re-regulating themselves, that is, through creative 'errors', paradoxes, doctrinal inventions provoked but not mechanically determined by such impulses.Legal systems re-generate their meaning within the possibilities allowed by existing patterns but in unpredictable, contingent, 'blind' ways.Modern law, then, is not merely 'responsive' but rather 'reflexive' to social impulses. 33his also means that to effectively perform their functions within an increasingly fragmented society, legal systems have to preserve some degree of flexibility, indeterminacy and unpredictability, while at the same time persisting in the face of disappointment about social expectations.This openness/indeterminacy is crucial to absorb cognitive expectations and increase law's capacity to learn from the environment.Put differently, the possibility of having (micro-)variations of meaning is essential to the reproduction of legal systems and the preservation of their societal function.

Time and means of dissemination of law
Based on the idea of law as a system of social communications, societal constitutionalism advances a different approach to law's relationship with its means of dissemination and time.As the production, interpretation and application of law also draw on information not conserved in legal texts (in the narrow sense), 34 legal acts are influenced by their meansoral, printed, digitalof dissemination and the point in time when they are communicated.At the same time, each legal act (legislation, judicial decisions, administrative acts, contracts) is a communicative event based on the legal/illegal code, potentially rearranging the meaning of past communications and changing future patterns of law's evolution. 31Thomas Vesting, Legal Theory and the Media of Law (Edward Elgar, Cheltenham, 2018) 19-84. 32That is, the self-transformative process whereby systems use events in their environment as material for meaning production: Teubner, 'The Two Faces of Janus: Rethinking Legal Pluralism' (n 25) 1447. 33 But time does not always flow at the same speed.The different social 'speeds' of time and the related perceived need to produce legal meaning matching social, technological and environmental change have an impact on law's evolution, notably the sources of legal validity and the types of acts that take centre stage in law-making. 35In an age of growing functional differentiation and accelerated technological and environmental change, legal systems are increasingly called on by their environment to produce increasingly new legal meaning and to 'learn' from their own operation, even without explicit political consensus. 36In this sense, the crisis of 'general and abstract' models of law-makingwhich parallels the relative decline of treaty-based law-making in international lawis coherent with the rise of judicial and administrative bodies as the 'real' places of law's production, as well as of private and hybrid forms of regulation.Such dynamics are not accidental features; rather, they are deeply ingrained in the increasingly fragmented sociolegal structures of modernity. 37ghts and democracy Societal constitutionalism puts communication media (power, money, normativity, truth) at the centre of constitutional theory.As such, they participate in the subjectification of individuals and collective actorsin their 'interpellation'. 38Based on this assumption, societal constitutionalism advances a critique of the liberal theory of rights, centred on individuals as rational, self-authorized, pre-social actors, detached from societal constraints and excluding social systems as right-holders to be protected on their own.Indeed, social control/manipulation may well emerge even when individuals can express a will that has been 'freed' from the constraints of political power or economic need. 39At the same time, societal constitutionalism highlights the need to preserve different social systems from reciprocal encroachments and colonization. 40As the COVID-19 pandemic has shown, the scientification of politics and the politicization of science are equally dangerous sides of the same coin.Put differently, societal constitutionalism highlights the need to mobilize the trans-subjective potential of rights. 41In normative terms, this means using both existing and new legal instruments to translate rights-based claims into political issues and to thematize/problematize how to address collective societal harms.This is particularly relevant when such harms derive from depersonified processes and so-called 'global injustice', 42 as is the case with mass data collection and treatment. 43hat about democracy?Societal constitutionalism rejects the view that procedures based on elections, representation and organized opposition within state institutions are the sole possible model of democratic legitimation. 44In particular, it rejects the impossibility of democracy in global/transnational settings and contests approaches aiming to compensate the lack of democratic legitimacy of non-state systems through state-centred models (e.g.chains of delegation/authorization starting from national parliaments).
In contrast, societal constitutionalism advances a theory of democracy based on polities not necessarily delimited by personal or territorial belonging 45 or an assigned status of citizenship, nor identified with an international community or a 'global civil society'. 46They are rather individuated by how affected by a given system certain subjects or groups are (or perceive themselves to be).
Within these communities, democratic legitimation does not necessarily take place according to traditional representative schemes or the majority principle.Rather, the principle of representation is generalized through the institutionalization of selfcontestation, to be re-specified according to the specific rationality and normativity of each system. 47Under such a view, authentic democratic processes emerge if and to the extent that subjects affected by systems' operations stably practise substantive and even direct participation and contestation in their normative production.Various decisionmaking fora should mirror a plurality of democratic legitimation schemes, also going through transnational organizations, grassroots movements, trade unions and NGOs.The 'political' (le politique) 48 is not limited to 'politics' (la politique) 49 and increasingly emerges in private or hybrid arenas. 50Societal constitutionalism's pluralism individuates processes of democratization allowing different kinds of actors to participate in legal production taking place in distinct spheres at the global level.In this way, against all critical claims that it is the doom of democracy, globalization may offer an opportunity to exploit the democratic potential of social processes beyond the institutions of state 42 47 Teubner, 'Quod omnes tangit' (n 43), 14-15. 48Understood as the set of collective reflections, conflicts and decisions on social options diffused at the level of society as a whole. 49Understood as the subsystem within the functionally differentiated society whose function is to guarantee the capacity to make collectively binding decisions: see Claudio Baraldi politics.In sum, societal constitutionalism looks at how to institutionalize the possibility of bottom-up social variation and contestation.

III. Reconciling digital and societal constitutionalism
This part of the chapter focuses on digital constitutionalism's definition and three systems politics, economy and lawwhose communication mediapower, money and juridical authorityare central to modern society.First, it aims to frame existing analyses as parts of a broader theory with a critical potential.The premise is that such analyses do not explicitly focus on the fact that digital technologies create new possibilities for politics, economy and law to control and manipulate individuals through their own communication media 51 and allow for new forms of colonization 52 among systems (for example, digital economy towards politics or science, or digital press towards politics).Second, it aims to operationalize such insights.In particular, it highlights the analytical and normative gains that digital constitutionalism may achieve from its reconciliation with societal constitutionalism, pointing towards some proposals.

Definition
In one of its first explicit formulations, Suzor describes digital constitutionalism as an attempt 'that seeks to articulate and realize appropriate standards of legitimacy for governance in the digital age'. 53Subsequently, Redeker, Gill and Gasser have defined digital constitutionalism as a 'common term to connect a constellation of initiatives that have sought to articulate a set of political rights, governance norms, and limitations on the exercise of power on the internet'. 54Relying on societal constitutionalism, they frame digital constitutionalism as the 'process of constitutional rule-making that arises from social groups like civil society or transnational business corporations' and included the limitation of both public and private power within the subject matter of digital constitutionalism.However, they include within the scope of digital constitutionalism only documents, charters and declarations that explicitly aim to establish different types of an 'Internet Bill of Rights' and focus on political questions and communities.Therefore, they deny the 'constitutional quality' of other types of norms, especially those produced by IOs and private enterprises, such as the norms developed by Meta. 55Those documents overwhelmingly focus on crucial but relatively narrow issues: freedom of expression, privacy, right of access to the internet.Therefore, their definition is still anchored to a conception of constitutional norms as limitations to (political) power and largely overlooks subtler dynamics of manipulation and colonization deriving from the impact of digitalization.
Celeste advances yet another formulationagain explicitly based on societal constitutionalism.He defines digital constitutionalism as 'the ideology which aims to establish and to ensure the existence of a normative framework for the protection of fundamental rights and the balancing of powers in the digital environment'.Such ideology should permeate, guide and inform the constitutionalization of the digital environment, understood as the process that 'aims to produce a series of normative counteractions to address the alterations of the constitutional ecosystem generated by the advent of digital technology'.The advantage of framing digital constitutionalism as a theoretical concept lies 'in the possibility to distinguish it from its implementation, its translation into reality'.Further, Celeste's notion of constitutionalization as a process that aims to produce normative counteractions captures well the tasks to which digital constitutionalism is called.
However, his conception of ideology is somehow still sanitized: a 'structured set of values and ideals'. 56Expanding on Althusser's work 57 and its reading by Johns, 58 digital constitutionalism as an ideology can rather be defined as the constitutional discourse that investigates and contributes to shaping the socially constructed relationships of individuals to their actual conditions of existence, directly or indirectly mediated by digital technologies.This definition focuses on the dynamics of hailing/interpellation triggered by digital technologiesthat is, dynamics by which different socio-political apparatuses and processes, be they work, sex, gender, ethnicity, citizenship or other, constitute individuals and collective actors as social subjects through digital technologies.This conceptually thicker notion of digital constitutionalism brings about three analytical gains.
First, it highlights that digital constitutionalism dealsshould dealprimarily with how digital technologies affect and shape the social existence of individuals, collective actors and social systems. 59In this sense, such notion aims to counter the risk that the constitutionalist language might be coopted to conceal or otherwise legitimize the powers and social processes that digital constitutionalism is supposed to address. 60econd, digital technologies and globalization have not created, but rather made more visible and urgent, questions left unaddressed by state-centred liberal constitutionalism.In this regard, the insistence on counteractions to the alteration of a previously existing equilibrium gives the impression that digital constitutionalism deals with totally new constitutional questions, which emerged only with digital technologies.Undoubtedly, digital constitutionalism deals with questions that have assumed different quality and 56 Ibid 89. 57 significance with digital technologies.However, at their core, such questions were already present in the legal structures of (Western) modernity.'Analogue' constitutionalism was not characterized by equilibrium, but rather hid its absence.The task of digital constitutionalism is not to regain some paradise lost, but rather to open the eyes before hell. 61his conceptual move helps 'see' the subject matter of digital constitutionalismnot simply the regulation of digital technologies and their disruptive impact, but rather of already existing constitutional questions reshaped by digitality.
Third, this definition offers a point of convergence for different and somehow still sparse strands of scholarship addressing the impact of digital technologies, especially those that do not speakat least, not explicitlya constitutional language.This would concern, among others, 'critical data studies', 'algorithmic regulation' and 'law and political economy'.Critical data studies explore data as situated in complex 'data assemblages' of action referring to the vast systems, comprising not just data infrastructures, but also the 'technological, political, social and economic apparatuses that frame their nature, operation and work', including processes of data collection and categorization to the subsequent cleaning, storing, processing, dissemination and application of data. 62Algorithmic regulation is a concept 'entailing sustained, intentional attempts to employ algorithmic decision-making in order to influence behaviour or manage risk'. 63aw and political economy is a more general strand that has emerged in recent years, featuring particular attention to the material relationships triggered or affected by digitality and its legal infrastructures. 64Coalescing such strands around a broadbut still conceptually thickdefinition of digital constitutionalism, while still keeping their specificities, might contribute to a richer and possibly more nuanced debate, generative of more effective solutions.At the same time, it would contribute to establishing a stronger dialogue with existing discourses of global constitutionalism. 65In this sense, such a move frames digital constitutionalism in a more comprehensive and possibly ambitious waythat is, as the constitutional theory of the digital age.

Politics
Power is a traditional focus of digital constitutionalism.There is a vast body of literature on the impact of digital technologies on politics and democracy, with contrasting views on whether they open to positive or negative developments. 66In this context, societal constitutionalism conceives power not as coercion or merely as self-interested influence on social actors' behaviour, but as the specific communication medium 67 of the political system.Societal constitutionalism focuses not only on new possibilities of the arbitrary exercise of power but also on the impact of digital technologies on the conditions of reproduction of power itself, conceived in this specific way.In other words, societal constitutionalism asks digital constitutionalism how it can preserve the capacity of politics to produce socially legitimized, collectively binding decisions under conditions of extreme social fragmentation, where consensus based on the traditional procedures of (representative) democracy is more difficult to reach. 68uch an issue goes beyond the preservation of a 'free marketplace of ideas' and a functioning public sphere. 69It requires a broader reflection on the conditions through which (presumptions of) consensus to the purposes of collective decision-making may emerge. 70The digital revolution has debunked, or at least raised questions about, yet another myth of liberal political theory: the direct connection between the social availability of 'correct' information and the emergence of authentic socio-political consensus via well-functioning state institutions.Indeed, thanks also to digital technologies, new and old (collective) actors can voice dissent, generate conflict, 'force' debates and move them in different directions, in ways different from those emerged in state-centred constitutional modernity. 71In this sense, as the constitutional theory of the digital age, digital constitutionalism is called to incorporate into its reflections a legal-institutional analysis of the impact of digital technologies on both national and transnational collective actors and their respective strategies, including political parties, movements, religious confessions and academic institutions. 72t the same time, digital constitutionalism is called to address the impact of digital technologies on the dangerous capacity of politics to control individuals and colonize other social fields.This issue does not concern only the risein different forms and degreesof state surveillance and profiling 73 in both liberal-democratic and authoritarian countries. 74There are already rich reflections on the effects of predictive policing, 75 automated decision-making 76 and 'nudging'. 77As the COVID-19 pandemic has shown, digital technologies and algorithms open the way to new and subtler forms of constraint, political control and manipulation of both individuals and autonomous social fields. 78However, a societal constitutionalism-oriented approach to digital constitutionalism calls for a more comprehensive approach to the bidirectional relationship between digital technologies and the (self-)reproduction of power.More generally, the digital revolution 'asks' constitutional theory to rethink the relationship between state and society: neither a stark separation nor a complete indistinction, but rather an intensification of interdependence and mutual relationships.
In normative terms, such an approach highlights the need to strengthen the cognitive openness of state (administrative) apparatuses and procedures; 79 and to establish stricter prohibitions on the use of AI by both public and private actors. 80Such openness should be directed to absorb and re-elaborate in their concrete operation programmes not strictly related to self-referential decision-making capacities. 81But besides state structures and public apparatuses, establishing and reinforcing mechanisms of cognitive openness to political impulses is even more urgent within private or hybrid organizations such as Meta or ICANN. 82In that sense, Meta's establishment of the Oversight Board to adjudicate content moderation issues on its platforms could be seen as an opportunity to open the inner normative system of a profit-driven entity to social demands. 83nterestingly, democratization has always been a weak spot of both digital constitutionalism 84 and global constitutionalism. 85In this regard, failures to replicate statecentred models of democratic legitimation show how unsuited to the digital sphere(s) they are. 86Unsurprisingly, the digital constitutionalism literature has focused mostly on procedural aspects such as fairness, participation, transparency, accountability and judicial review, 87 to the point where it has been accused of 'procedural fetishism'. 88These proposals are certainly valuable and, under the pressure of the colére publique triggered by recurring scandals, have been to some extent implemented by private 'governors'. 89owever, in order to avoid risks of cooption, the democratization of the digital sphere must also involve the dimensions of struggle, conflict and contestation, especially in fields where the risks of abuses are higher, such as law enforcement, border control, migration and asylum. 90Here again, societal constitutionalismin line with recent strands of global constitutionalism 91highlights the need to preserve spaces for conflict and contestation also within the social spheres variably controlled by digital 'governors'.In this regard, As such, legitimacy standards are different and engage state constitutionalism and the (global) political system differently.On these issues, from the perspective of the structural layer, see for example, Angelina proposals to establish a right to contest AIespecially in its collective dimensionare promising. 92ut who will contest?Which polities will raise conflict if the digital spaces is multijurisdictional and multilayered?This question touches upon another crucial point of the relationship between digital constitutionalism and politics: the territorial one.Indeed, both the state/society divide and the internal/external divide 93 need to be reframed.Here, a closer connection with societal constitutionalism helps understand that digital constitutionalism is either a global constitutionalism -'thinking' in multijurisdictional and multilevel termsor it is not. 94Digital constitutionalism contributes to the internationalization/globalization of constitutional discourses, understood also as a trajectory where the state territory is less and less the symbolic space for power relationships and consensus-building.Put in a different way, digital constitutionalism contributes to the conceptual disentanglement of issues concerning sovereignty from those concerning legality and constitutionality.
Digital constitutionalism has long dealt with issues concerning jurisdictional conflictsespecially over hate speech and data protectionand the multilayered/hybrid governance of the internet. 95However, a focus on the impact of the reproduction of power and legitimated collective decision-making helps 'see' how digitality often sustains trends toward supra-and transnational engagement and a centre/periphery rather than internal/external mindset.If states aim at effectively preserving their capacity to regulate key societal fieldscrucial to the building of consensusthey are pushed to coordinate with other actors or to extend the effects of their domestic law beyond their territory. 96Such a focus might also help de-parochialize some digital constitutionalism discourses that frame issues of digitality as if they fell only within the scope of national constitutions.
More generally, in locating arenas for democratization and contestation, societal constitutionalism focuses on communities of users, consumer organizations, internet activists and other civil society segments, highlighting their essential role in triggering variations in social communication and in the successful operation of reflexive processes out of which normative expectations about network infrastructure emerge. 97n this same context, a societal constitutionalism-oriented approach links digital constitutionalism and international law discourses, giving a coherent account of the (re-)emergence of states with phenomena such as the splinternet, 98 technological and regulatory competition and an enforcement frenzy made of national laws on content moderation, antitrust and data protection. 99However, rather than a return to the selfcontained units of a Westphalian global order, such a re-emergence can be read as the rise of macro-geopolitical units, which increasingly (try to) act 'imperially' 100that is, in terms of centre/periphery. 101New processes of fragmentation, polarization and hybridization, with their related normative conflicts, are emerging along blurred and evershifting 102 spheres of influence. 103In these processes, the relative power of states, the distinct strategies pursued by key private actors gravitating in their orbits 104 and technological/infrastructural asymmetries play a central role. 105Moreover, in their emergence and development, such processes show remarkably functional features, taking different forms and degrees of intensity depending on how close to the reproduction of political power and consensus-building distinct issues are. 106Put differently, the faultlines of fragmentation, the various forms of 'splinternet' and the different roles of private actors emerging with the 'return' of state politics into the digital sphere vary greatly, depending on the specific issue.This functional reading is also coherent with the fact that conditions and consequences of the competition among global players such as the United States, China and the European Union change dramatically depending on whether such competition concerns the structural layer (e.g., control over data infrastructures), the logical layer (e.g., control over Internet protocols) or the social layer (e.g., content moderation on social media platforms).

Economy
Digital technologies have increased the capacity of autonomous self-reproduction and colonization of the economy.The data economy has become so central that data are progressively regarded as capital,107 be they 'coded' through law or not. 108This phenomenon has increased the already alarming commodification tendencies of global, neoliberal capitalism.Here, one main problem is informational capitalism, understood as a business model based on the monetization of information and data collected by the actors of the digital economy, characterized by a compulsion to engagement growth thatcombined with oligopolistic markets 109 triggers vicious dynamics.Informational capitalism does not just affect individuals' material and psychological conditions of existence; it also drains social systems and collective actors (political movements, business entities, media, education, and research institutions) of their functional autonomy.Its effects on individuals' mental health, and on political engagement and politics, are well known, as they are to the actors involved. 110In some ways, digital platforms are societal black holes, capturing other systems in their ever-growing accretion disc.Importantly, the externalities produced by the digital economy affect the capacity of politics to produce consensusbased decisions; of science to produce socially shared truth; 111 of the non-digital economy to produce and redistribute economic value; and so on.
For example, in terms of the economy/politics interface, digital and cryptocurrencies and smart contracts endanger the capacity of politics to influence economic processes through monetary, budgetary, and fiscal policies and politically legitimated decisions, affecting the capacity to redistribute economic value to the purposes of political consensus.In terms of the economy/press interface, the problems of journalism certainly did not start with the digital revolution.However, the effects of real-time web analytics, clickbait on social media platforms and information bubbles on the quality of journalism are well known 112 and have led to the consolidation of larger news organizations 113 and a transformation in the professional self-understanding of journalism. 114In terms of the economy/science interface, digitalization and open-access solutions managed by business corporations run the risk of increasing publish-or-perish, reputation-seeking dynamics and predatory publishing and of reinforcing the position of hegemonic actors. 115igital constitutionalism has often addressed such issues using a piecemeal approach, inspired by liberal theory assumptions.Still, some particularly apparent problems brought by the digitalization of the economy have been addressed quite quickly.Central banks have proved ready to defend their control over currencies against business capture in the form of crypto-currencies and crypto-finance instruments. 116A similar development can be identified where the dynamics of (social) power are relatively easy to identify.Especially after the COVID-19 pandemic exposed, in all its gravity, the conditions of platform workers, 117 some courts 118 and legislators 119 have been acting relatively swiftly to ensure that such workers enjoy access to the legal protections afforded to employees.
However, other dynamics remain largely off the radar.One example is content monetization, which is characterized by the potential intertwinement of commercial and political speech and remains a blind spot for public regulators 120 mostly left to private governance. 121Another significant example is provided by the fields of data protection and data ownership, 122 generally gravitating around valid legal consent and right to property of individuals.This approach, however, often does not consider well-known problems of consent in privacy law, 123 exacerbated by the business models of Big Tech companies and their purposeful cultivation of users' 'digital resignation'. 124Further, the treatment of data by Big Tech platforms is not only a matter of individual privacy and valid consent, especially considering the collective dimension of related harms. 125hese problems emerge even with the most advanced regulatory instruments, such as the 2016 GDPR of the European Union. 126This has been a relative success as a form of 'Brussels effect' 127 and, more recently, enforcement agencies have started to deploy its potential less timidly. 128However, besides serious enforcement issues, 129 the GDPR is still 'grounded in procedural and neoliberal paradigms: the primacy of individual rights, individual choices, and self-determination [which do not] capture the most salient aspects of data in platform ecosystems … Data is relational and collectively constructed in ways that individual consent or self-determination guarantees cannot alone address.' 130 Even the recent Digital Services Act (DSA) 131 goes in the same direction when it falls short of a complete ban on targeted advertising and, in order to prohibit the use of UX tweaks to manipulate/force consent, requires platforms to offer parity in consent flows for refusing or agreeing to hand over data (Art.25). 132urthermore, even in fields covered by current initiatives, the focus often remains relatively narrow.For example, the substantive scope of the guarantees provided by the European Union's proposed Platform Work Directive 133 is limited to so-called 'gig' workers, even though algorithmic management is now present in workplaces and sectors well beyond the 'core' platform businesses. 134From yet another perspective, current discussions rarely capture the transnational dimension of platform economy, potentially 124 Cf.Joseph Turow, Yphtach Lelkes, Nora A Draper and Ari Ezra Waldman, and others, Americans 125 Tisné and Schaake (n 42).
126 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). 127See Fahey (n 100). 128See the Irish Data Protection Commission (DPC) 390 million euros fine to Meta, adopted on the basis of a decision of the European Data Protection Board (EDPB) ruling Meta's reliance on contract terms as the lawful basis for personalised advertising invalid: Binding Decision 4/2022 on the dispute submitted by the Irish SA on Meta Platforms Ireland Limited and its Instagram service (Art.65 GDPR), DPC Inquiry Reference, IN-18-5-7, available at <https://edpb.europa.eu/system/files/2023-01/edpb_binding_decision_202204_ie_sa_meta_instagramservice_redacted_en.pdf>.
129 Estelle Massé, 'Four Years under the EU GDPR.How to Fix Its Enforcement', AccessNow (2022), available at <https://www.accessnow.org/wp-content/uploads/2022/07/GDPR-4-year-report-2022.pdf>. 130Bietti (n 61), 47. 132 However, the DSA has now prohibited ad profiling of minors (Art 28) and the use of highly sensitive personal data such as racial or ethnic origin, political or religious affiliation, sexuality or health data for behavioural targeting (Art 26, para 3).For legislation headed in this direction in the United States, see the California Privacy Rights Act of 2020. 133European Commission, Proposal for a Directive on Improving Working Conditions in Platform Work, COM(2021) 762 final, 09.12.2021. 134One may think of Amazon's use of automated decision-making systems in its warehouses, and of the employers' use of remote monitoring tools for formerly office-based employees: Aislinn Kelly-Lyth and Jeremias Adams-Prassl, 'The EU's Proposed Platform Work Directive', Verfassungsblog, 14 December 2021, available at: <https://verfassungsblog.de/work-directive>.
triggering races to the bottom on wages and workers' rights, related to geographical differences in skills and labour costs. 135 societal constitutionalism-oriented approach may contribute to partially recalibrating the focus.It starts from the assumption that informational capitalism poses significant constitutional issues even when single, fully informed and non-coerced individuals can access and validly consent to the treatment of their data and, more generally, interact with digital technologies. 136For example, it points to the necessity to further explore risk-based regulatory models 137 inspired by consumer 138 and environmental law. 139nother contribution is the spotlight on the threats of informational capitalism on the institutional dimensions of rights beyond individual freedomsfor example, on the integrity of science.In this regard, societal constitutionalism-oriented approaches focus on how to establish new prohibitive rules and to enforce non-binding norms emerging from within the involved sectors. 140urther, societal constitutionalism-oriented approaches focus on the digitalization of the economy in its transnational dimension and on collective/social rights.This consideration applies to different proposals targeting digital service providers.Here, while digital constitutionalism's liberal assumptions can be identified on both sides of the Atlantic, they are influenced by distinct conceptions of the relationship between state and society and their own varieties of capitalism. 141n the United States, legislators let the digital economy expand with little to no regulation and courts do not normally give legal relevance to the private power exercised by digital actors, leaving them grow in a sort of regulatory vacuum. 142In hindsight, this is coherent with the emergence of Big Tech companies as veritable 'governors', 143 sometimes with de facto normative and adjudication systems. 144Further, it is coherent with proposals focusing on lifting intermediary immunity under section 230, 145 which makes it extremely difficult to hold platforms liable for illegal content, 146 and on antitrust law as the main instrument to break Big Tech giants and even as an instrument of democratization. 147n Europe, the DSA and the Digital Markets Act (DMA) 148 go in a partially different direction.Indeed, they aim at 'constitutionalizing' the role of digital service providers in matters of data collection and content moderation 149 and at enhancing the role of private actors in enforcement mechanisms. 150At the same time, European courts have been more open to taking into consideration the societal role of social media companies, sometimes applying constitutional rights in inter-private relationships through the explicit or implicit recourse to the time-honoured doctrine of horizontal effect of fundamental rights. 151However, these instruments 'still address significant threats to fundamental rights on a market access fashion.' 152 In different ways, then, both US and European approaches still intervene only externally on the 'governors' of the digital economy.Such actors are still in control, and informational capitalism remains at the core of their business model.From the perspective of societal constitutionalism, such approaches are insufficient because they hardly intervene on the internal structures and cognitive processes of the actors involved.In the case of digital companies, this approach is often ineffective or triggers unintended, paradoxical consequences such as collateral censorship, over-blocking and de-platforming. 153 societal constitutionalism-oriented approach focuses also on changing internal structures and incentives.In this direction, it supports proposals such as those advanced by Balkin, arguing against the outright repeal of intermediary immunity from liability of social media companies 154 and suggesting leveraging such immunity by conditioning it on social media companies 'adopting business practices that ensure their trustworthy and public-regarding behaviour'. 155This approach could be expanded through tax, labour and company law instruments.
A first proposal would be introducing forms of 'digital capital tax'that is, progressive taxation tied to the quantity of active users and/or data processed by digital service providers, regardless of any related profit. 156Undoubtedly, this proposal builds on literature qualifying data as capital as such, 157 to be targeted to the purposes of taxation and economic redistribution.
A second proposal would be imposing on the private actors of the digital economy and digital service providers within certain dimensional and economic thresholds forms of corporate governance, involving co-decision with representatives of collective interests (labour, health, press, environment, etc.).Importantly, this proposal does not target only the business modelinformational capitalismbut the legal infrastructure and the organizational models of the economic actors profiting from it.
A third proposal would be imposing obligations or at least linking incentives (tax breaks or liability immunities) to the negotiation and effective implementation of transnational company agreements 158 with associations of workers, artists, journalists, local communities and other groups in the different systems in which they operate.Such agreements should concern not only employment conditions but also redistribution of the profits to both individuals and collective entities whose (digital) labour is monetized. 159Such agreements, in turn, may be overseen and monitored by public authorities and/or public interest certification bodies, possibly linked to international institutions such as the International Labour Organization. 160In the same context, the 153 See the studies on the effects of the 2017 German Network Enforcement Act, the main inspiration for the DSA: Alexander Peukert, 'Five Reasons to be Skeptical About the DSA', Verfassungsblog, 31 August 2021, available at: <https://verfassungsblog.de/power-dsa-dma-04>.
154 Such as that provided by section 230 in the United States and Article 15 of the EU eCommerce Directive. 155Balkin (n 68), 1301-02. 156See Omri Marian, 'Taxing Data' (2022) 47 Brigham Young University Law Review 511; and, within the specific framework of digital constitutionalism, Angelo Jr Golia, 'Data Capital Tax within the Puzzle of (Economic) Digital Constitutionalism: Questions for a Comprehensive Research and Policy Agenda' (2023) The Digital Constitutionalist.Available at <https://digi-con.org/data-capital-tax-within-the-puzzle-of-eco nomic-digital-constitutionalism-questions-for-a-comprehensive-research-and-policy-agenda/>. 157 Australian News Media Bargaining Code of 2021161 designed to have large technology platforms pay local news publishers for the content made available or linked on their platformsremains an interesting experiment. 162mportantly, these proposals aim to reduce the reliance on the business model of informational capitalism; to redirect value into activities not immediately related to data economy; to internalize non-economic incentives and impulses coming from digital economic actors' social environment; and to reduce the need to link regulatory interventions to the violation of individual rights.Importantly, they intervene on the internal structures of economic actors but are not forms of market constitutionalism. 163Rather, they aim to unveil, sustain and exploit contradictions rooted in material conditions of the digital sphere.By these means, they are meant to trigger and sustain processes of struggle and contestation within the involved systems, to set preconditions for repoliticization and to open up to non-predetermined policy outcomes, while at the same time reducing the competitive alignment of national systems of social and economic protection.They search for interventions 'in relation to law, rather than under its auspices'. 164Here again, societal constitutionalism may contribute to make digital constitutionalism become an authentic (global) constitutionalism, whereby economic processes emerged from digitalization can be both enabled and constrained beyond purely market-based rationality.In this sense, such a move also connects digital constitutionalism to the current 'social' turn of global constitutionalism. 165

Law
The impact of digital technologies on law has long been studied.In the digital constitutionalism discourse, the focus is mostly on legislative, judicial and administrative (state) functions, in their relationship with individuals and their rights. 166he literature has analysed future-proofing legislation 167 and experimental regulation,168 as well as the impact of digital and algorithmic technologies on administrative, 169 judicial 170 and law-enforcement settings. 171Attention is also paid to how the augmented speed and quantity of conducts in specific regulatory fieldsfor example, online speechtrigger a qualitative shift in the way law operates. 172specially in the 1990s and 2000s, techno-enthusiasts have seen in new technologies the opportunity to either get rid of legal regulation altogether; or at least to make law 'computable', so legal issues are ultimately decidable according to a strict binary relation 1/0. 173Similarly, the application of machine-learning and AI to the legal profession would increasingly improve so-called predictive justice, thus making most human legal professionals redundant. 174Such developments would arguably fix some features of the law perceived exclusively as problems: slowness, inefficiency, complexity, relative unpredictability.Therefore, with a degree of simplificationand leaving aside anarcho-libertarian viewsone can identify an oscillation between two paradigms: 175 first, a 'competition' paradigm, whereby the digital code and its inherent normativity stands as a competitor of lawof the legal codeand may potentially replace it as an instrument of social regulation; 176 and second, a 'hijacking' paradigm, whereby the digital code changes the nature of law and the way it operates. 177n both cases, critical approaches highlight related risks, especially the fact that technologies may strengthen the role of law in cementing the hegemony of groups that already control law-production and, more generally, the fact that both paradigms enormously increase the colonization capacities of politics and capitalist economy towards other systems. 178hat is the contribution of societal constitutionalism to this debate?First, it helps individuate different trends as part of a single phenomenon, pre-dating the emergence of digital technologies.Digital technologies made dynamics inherent to modern Western law emerge even more clearly.In normative terms, this view calls for an increased attention to the judicial and administrative structures that deal with and use new technologies.But even more importantly, and in contrast to discourses centred around individual rights, (judicial) redress, and litigation, digital constitutionalism needs to re-focus on administrative law, conceived also as the law of the social planningthat is, the law dealing with the redistribution of social and economic value in a relatively centralized way. 179econd, by focusing on the constraint and protection of law's specific communication medium (juridical authority), societal constitutionalism helps keep together both the 'competition' and the 'hijacking' paradigms.In contrast to approaches treating law too instrumentally, as if it were only a tool augmenting dynamics lying elsewhere (mainly in politics and economy), societal constitutionalism highlights that juridification of societyexponentially amplified by digital and data-driven technologiesis a risk in itself, and not just to the extent that it serves political or economic purposes. 180The unconstrained juridification of the social world made possible by computation enormously increases the dangers deriving from the standardization/normalization imperative of juridical authority, even in hypothetical non-capitalist societies.Relatedly, especially in the light of the disciplining effects deriving from its internal dynamics, 181 law needs to remain scrutable and contestable. 182ith regard to protection, societal constitutionalism calls for the preservation of some 'imperfect' features of law.As a specific form of social regulation, law presupposes a distinction between norm-making and norm-abiding, a distinction that preserves areas of agency, potential disobedience and ultimately humanity.The idea of the rule of law implies the possibility of its breach.Preserving this possibility for the lawhowever "just" to be violated, as well as a certain degree of openness, uncertainty and unpredictabilityin turn linked to law's medial, cultural, and human featuresis important for several reasons.First, it preserves its capacity to absorb cognitive expectations from its environment, that is, to its 'learning'. 183Second, it leaves room for the micro-variations that are fundamental to preserve law's capacity to regulate and evolve with society. 184Third, it preserves its autonomy as a distinct social system that is not entirely exploitable by other systems, notably politics and the economy.
Valuing such imperfect, inefficient features is counter-intuitive, especially if one builds on ideas of judicial activity as the result of if/then syllogisms, of law-making as the result of a democratic will giving rise to determinate commands and of certainty as mere consistency.To protect the reflexive nature of legal knowledge and normativity, one must embrace its incomplete/contingent nature.In fact, 'there are limits to the computability of legal reasoning and, hence, the use of AI to replicate the core processes of the legal system'. 185Techno-enthusiasts, who see hyper-determinism and the 'legal singularity' 186 as positive outcomes, may have some traction in the public discourse also because they build on assumptions deeply rooted in traditional constitutional theory.Questioning such assumptions, then, is a critical contribution of a digital constitutionalism informed by societal constitutionalism.In positive terms, this calls for a jurisprudence linking, without merging, the coercive effects of technologyin both its materiality and its cultural/social fallout, 187 the normative structures and processes that are specific to law 188 and its human features. 189Indeed, the socio-technical substratum of digital technologies influences its constraining effects, the actual possibilities for transformation, and the contestation of norms and policy solutions. 190he third contribution of societal constitutionalism concerns legal pluralism, understood also as a critical stance towards state-centred legal theory.Legal pluralism is by no means foreign to digital constitutionalism, but societal constitutionalism pushes it to take it more seriously.This means addressing at least four aspects as part of one analytical and normative framework.
First, a differentiated assessment of the impact of digital technologies on qualitatively distinct types of normative systems, or 'jurisdictions', is required. 191Digital and datadriven technologies affect both state and non-state normative orders. 192Furthermore, such technologies trigger different dynamics, depending on the type of communication medium (power, money, knowledge), the institutional form (states, corporations, IOs, transnational regimes) and their ideological/cultural environment.
Second, there is a need for an assessment of the impact of the digital and data-driven technologies on different techniques of co-and self-regulation.New technologies do not only facilitate the autonomization of non-state normative systems; they also change how state and non-state normative systems relate to each other and, importantly, how they may inform each other's evolution. 193hird, the development of conflict-of-law approaches specifically suited to the normative conflicts from the application of digital and data-driven technologies is imperative. 194Such approaches, already emerging in the practice of adjudicators dealing with both state 195 and non-state normative orders, 196 should be oriented not only to impose sanctions or solve conflicts but also to trigger processes of learning 197 and effective constitutionalization within the involved systems.The internal procedures and structures of digital 'governors' such as Google and Meta must be made responsive to external demands so they can be turned into actual changes in their operations and in the effective limitation of their expansive tendencies. 198Strategically exploiting the reflexive dynamics of the involved systems is thus one of the goals of a pluralist constitutional theory suited to the reality of digital technologies. 199ourth, an assessment of the fragmenting impact of different normative orders emerging from the digital sphere on legal subjectivity is required. 200The normative/ disciplining effects of digitality and data-driven technologieswhether based on the legal code or notdo not just contribute to the social construction of individual and collective actors, but also frame their sociolegal position differently, ranging from their outright invisibility to indirect legal relevance to the recognition of personality with only a few legal entitlements up to the full-fledged armoury of legal rights granted in that specific system.Importantly, these effects are different for each of the centres of digital normativity.The normativities emerging from digital platforms such as Meta have different social construction effects from, say, those emerging from states' digital administration, or those from organizations governing the infrastructure of the internet such as ICANN, or blockchain-based networks such as Bitcoin.Such multiplicity gives rise to continuous fragmentation, reconstruction and mutual reconfiguration of 'relational subjects' that the theory of digital constitutionalism needs to capture comprehensively.201

IV. Conclusion
This article has highlighted digital constitutionalism's critical and transformative elements, using the instruments provided by societal constitutionalism as a strand of global constitutionalism.It argued that, in order to address the challenges posed by new technologies, digital constitutionalism should embrace an explicitly critical discourse, questioning several assumptions of liberal, state-centred constitutional theory.By overcoming its inner contradictions, digital constitutionalism could be framed as a more ambitious constitutional theory for the digital age and as an opportunity for a longoverdue reckoning of constitutional theory with itself.
However, unveiling contradictions is not an end in itself.Rather, highlighting contradictions hasindeed, must havea transformative outlook, so that constitutionalism may address questions largely left unresolved if not hidden: private societal power, relevance of (transnational) legal pluralism, harms deriving from depersonalized social processes, democratic legitimation beyond the state.
How does this relate to the Lloyd decision recalled in the introduction?That particular case was recalled mostly for its explanatory value, as it highlights the inner limits of liberal understanding of individual rights.An authentically transformative digital constitutionalism needs to focus on the analytical and normative premises leading the UKSC to decide in such a way.First, massive illegitimate treatments of personal data need to be addressed as a question of constitutional relevance, not only for the immediate harm to the people involved but also and foremost for the broader societal effects triggered by such treatments.In that case, it was addressed through the language and instruments of tort law, private rights, and compensation claims instead of, say, administrative law.Second, absent a suitable class action, the need to individualize the harm to the purposes of the compensation pushed the claimants to choose a weak procedural strategy based on a representative action.Third, a narrow understanding of 'damage' limited to material or mental effects on single individuals fails to addressand even obscuresthe trans-subjective nature of the harms triggered by mass collection and processing of data by business actors.
Even beyond the specific procedural history of the Lloyd decision, there are several issues that a different approach to the UKSC case may unveil.Among them are the legal and economic structures incentivizing a digital 'governor' such as Google to the illegitimate treatment of users' data; and the model of corporate governance of a company dealing with such a huge amount of data and with such a significant societal role.These issues should be brought more decively to the fore of the scholarship using a constitutionalist language.In that sense, this article called for less criticism and more (self-) critique through the instruments provided by societal constitutionalism as the strand of global constitutionalism best suited to the challenges of digitality.
Can't Consent to Companies' Use of Their Data' (Annenberg School for Communication, University of Pennsylvania, Philadelphia, 2023); and Nora A Draper and Joseph Turow, 'The Corporate Cultivation of Digital Resignation' (2019) 21 New Media & Society 1824.
131 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC.
51Michal Lavi, 'Manipulating, Lying, and Engineering the Future' (2023) 33 Fordham Intellectual Property, Media and Entertainment Law Journal 221, 269-89.52Seen 39.Even the 'European Declaration on Digital Rights and Principles for the Digital Decade' (Brussels, 26.1.2022COM(2022) 28 final) seems to be based on an individualist approach largely overlooking potential harms to science, press and politics.
Fisher and Thomas Streinz, 'Confronting Data Inequality' (2022) 60 Columbia Journal of Transnational Law 829. 83For the impact of reduced profitability on the openness to social planning initiatives, see Kate Klonick, The End of the Golden Age of Tech Accountability (2023, forthcoming) and Angelo Jr Golia, 'Testing the Transformative Potential of Facebook Oversight Board: Strategic Litigation within the Digital Constitution?' (2023) Indiana Journal of Global Legal Studies (forthcoming).End of the Experiment: How ICANN's Foray into Global Internet Democracy Failed' (2004) 17 Harvard Journal of Law & Technology 409; Tobias Mahler, 'The Internet Corporation for Assigned Names and Numbers (ICANN) on a Path Toward a Constitutional System' in Tobias Mahler (ed), Generic Top-Level Domains: A Study of Transnational Private Regulation (Edward Elgar, Cheltenham, 2019) 40-53. 87Giovanni De Gregorio, 'Democratising Online Content Moderation: A Constitutional Framework' (2020) 36 Computer Law & Security Review 1, 11-16; Blayne Haggart and Clara I Keller, 'Democratic Legitimacy in Global Platform Governance' (2021) 45 Telecommunications Policy 1, 14-16, highlighting how most proposals -Meta's Oversight Board, judicial adjudication as one of the 2015 Manila Principles for Intermediary Liability, and the human-rights-centric framework outlined in the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (UN Human Rights Council Report no A/HRC/38/35)are based on a narrow conception of legitimacy as throughput legitimacy.