Digital Constitutionalism: Mapping the Constitutional Response to Digital Technology's Challenges

Abstract

‘Digital constitutionalism’ is an appealing concept to explain the recent emergence of constitutional counteractions against the challenges produced by digital technology. However, the existing scholarship does not offer a unitary picture of this notion. This paper carries out a literature review of the topic and proposes a new systematisation of the theoretical framework surrounding the concept of digital constitutionalism. It is argued that digital constitutionalism represents a declination of modern constitutionalism. It does not identify the normative responses to the challenges of digital technology, but rather embodies the set of principles and values that informs and guides them. Conversely, the emerging normative responses can be regarded as the components of a process of constitutionalisation of the digital environment. In light of the adopted definitions, the paper eventually illustrates a new way of mapping the constitutional responses emerged so far to address the challenges of digital technology. They not only include the constitutional tools which we could define as ‘classic’ in the context of constitutional law, such as the binding legal texts produced in the state-centric dimension, but, interestingly, also new instruments, which are developed in the transnational dimension of private actors.

Keywords: Digital Constitutionalism, Constitutionalisation, ICANN, Terms of Service, Internet Bills of Rights