Law in the Internet Society

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EleonoreVaraleSecondEssay 4 - 10 Jan 2022 - Main.EleonoreVarale
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 In this regard, the evolution in authoritarian states is very interesting; at the beginning of the Internet era, governments in these states have feared internet platforms and adopted a strategy of information scarcity by censoring content and blocking access. Then, they realized that these technologies could offer a great potential to control and influence their population and started taking advantage of all the information and data collected on their citizens to consolidate their power and social control (ex: China). In other words, if layer-7 companies have disrupted political economies, the power to control them still lies in the hands of states.
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Insofar, the comparison between powerful tech companies from today and oil multinationals in the past is interesting (see: https://www.nytimes.com/2020/08/31/technology/big-oil-faded-will-big-tech.html). Indeed, in both cases, we deal with a model in which big companies rule the economy and the stock market, influence anti-trust law, and have an impact on public opinion (big oil firms like Exxon had an impact on climate change views like tech companies influence political opinions of voters on today’s platforms). In this model, states cooperate with these private empires, visible with business interests of oil companies that determine foreign policy and diplomacy in the Middle East or with the collaboration between governments and tech in the pandemic context (see: https://www.orfonline.org/expert-speak/treading-the-unusual-alliance-between-big-tech-and-the-government-post-covid-19-74472/)
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Insofar, the comparison between powerful tech companies from today and oil multinationals in the past is interesting (see: https://www.nytimes.com/2020/08/31/technology/big-oil-faded-will-big-tech.html). Indeed, in both cases, we deal with a model in which big companies rule the economy and the stock market, influence anti-trust law, and have an impact on public opinion (big oil firms like Exxon had an impact on climate change views like tech companies influence political opinions of voters on today’s platforms). In this model, states cooperate with the private empires, e.g. business interests of oil companies determine foreign policy and diplomacy in the Middle East or the collaboration between governments and tech in the pandemic context (see: https://www.orfonline.org/expert-speak/treading-the-unusual-alliance-between-big-tech-and-the-government-post-covid-19-74472/)
 
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Why Regulation is not the Solution and what are the Alternatives

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Why regulation is not the solution and what are the alternatives

 

For a few years now, political actors in democracies have been trying to legally frame layer-7 companies, especially the European Union first with the GDPR, and now the DSA as well as the DMA. Though the political intentions go in the right direction, to better protect the right to privacy and to fight against manipulation and hate speech online, (over)regulation does not seem to achieve this end. Indeed, the solution proposed has simply the effect of moving the hegemony from the private sector (the tech companies) to the public sector (the executive and judiciary powers) to a certain extent. Anyhow, it still favors a centralized system with opaque software; yet having one entity in possession of user’s data, be it public or private, cannot be the solution.

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Instead, platforms that rely on a free and open-source software and a decentralized governance should be promoted and implemented. Only that way can we ensure that user data remains truly private and can we prevent users from being manipulated by sponsored and targeted political content. These alternatives have existed for a few years now, like Diaspora, MeWe? or Mastodon, three platforms that use an open-source software and that propose to join or create your own pods. Yet, the deployment of these solutions is not preferred by governments that see this as an obstacle, since it would become much more complicated for them to extract specific data when needed (in criminal matters for example) if data privacy is really respected and if tech actors become fragmented. Therefore, it seems that only one option remains: support from society of these alternatives and mass education (from an early age).
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Instead, platforms that rely on a free and open-source software and a decentralized governance should be promoted and implemented. Only that way can we ensure that user data remains truly private and can we prevent users from being manipulated by sponsored and targeted political content. These alternatives have existed for a few years now, like Diaspora, MeWe? or Mastodon, three platforms that use an open-source software and that propose to join or create pods (small communities of people who share similar interests). Yet, the deployment of these solutions is not preferred by governments. Since it would become much more complicated for them to extract specific data when needed (in criminal matters for example) if data privacy is really respected and if tech actors become fragmented, they are not pushing for this alternative path. This leaves only one option: society-rooted activism and mass education (from an early age).
 


EleonoreVaraleSecondEssay 3 - 09 Jan 2022 - Main.EleonoreVarale
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How GAMAM are disrupting our traditional democratic systems and challenging the concept of the Nation-state

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Why regulating layer-7 companies is not the solution to protect users’ rights

 
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-- By EleonoreVarale - 08 Dec 2021
 
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In several regions of the world, including the US, India, and Europe, proposals are being made to create a stricter legal framework for big tech companies, both in terms of anti-trust law and platforms’ liability over illegal hate speech. These companies are very often depicted as the “Tech Giants/Titans” posing a threat to countries’ sovereignty that therefore need to be regulated. This essay aims first to challenge this view, and then to show why regulation, as presently envisioned, is not tailored to safeguard human rights including the right to privacy and freedom of expression. Finally, alternatives to our current model will be analyzed.
 
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The too late identification of the threat posed by GAMAM

 
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If the risk of GAMAM (for Google, Amazon, Meta, Apple, and Microsoft) becoming all-mighty powers, thereby undermining our democratic structures, has been identified quite early in the academic world, around 2010, if not before, it took political leaders much more time to consider this issue as a danger. The French sociologist Dominique Boullier argues (1) that both the monopolistic ambitions of big tech companies (in terms of anti-trust law), and their immeasurable influence on the users’ behavior, made possible by large data collection, were issues scholars and whistleblowers tried to draw attention to from 2010. But, as he further explains, the tipping point in the political sphere occurred recently, with the Cambridge Analytica scandal in 2017 and the attacks on the Capitol beginning of 2021. These two triggering events, as they challenged the very essence of our democratic systems, namely the electoral process, acted as a waking-up call for political makers. Until then, the mechanisms of the digital platforms' hold on the market structure, on public opinion and on politics were already in place but were never questioned for economic reasons.
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Private empires are not new

 
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Insufficient attempts to regulate the Big Five

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In the first place, it should be identified in what way some tech companies have shaped our political economies to be labeled as “Tech Giants”. The Open Systems Interconnection model (OSI) sets seven layers according to which a telecommunication system is organized, from the physical layer (first layer) that corresponds to the electrical, logical and physical characteristics of the system, like the type of cable used, to the application layer (seventh layer), the closest layer to the final user, that interacts directly with users’ data and software applications that implement a communicating component. Because historically companies operating in the first layers were government monopolies in many countries, the links with the state on that level are still strong. At layer 7, the situation is different insofar that tech companies have transformed the organization of some industries states had long cooperated with, for example in the retail, advertising, and publishing sectors. As known, layer-7 companies rely on data collection to make profit.
 
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In this regard, the evolution in authoritarian states is very interesting; at the beginning of the Internet era, governments in these states have feared internet platforms and adopted a strategy of information scarcity by censoring content and blocking access. Then, they realized that these technologies could offer a great potential to control and influence their population and started taking advantage of all the information and data collected on their citizens to consolidate their power and social control (ex: China). In other words, if layer-7 companies have disrupted political economies, the power to control them still lies in the hands of states.
 
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In the USA

>
>
Insofar, the comparison between powerful tech companies from today and oil multinationals in the past is interesting (see: https://www.nytimes.com/2020/08/31/technology/big-oil-faded-will-big-tech.html). Indeed, in both cases, we deal with a model in which big companies rule the economy and the stock market, influence anti-trust law, and have an impact on public opinion (big oil firms like Exxon had an impact on climate change views like tech companies influence political opinions of voters on today’s platforms). In this model, states cooperate with these private empires, visible with business interests of oil companies that determine foreign policy and diplomacy in the Middle East or with the collaboration between governments and tech in the pandemic context (see: https://www.orfonline.org/expert-speak/treading-the-unusual-alliance-between-big-tech-and-the-government-post-covid-19-74472/)
 
Changed:
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On the two sides of the Atlantic, proposals are being made to create a stricter legal framework for the GAMAM. In the US, recently, the solution put forward has been to break up the Big Five. Debated during the election campaign of 2019, this idea is far from being unanimous. Still, in June 2021, the House of Representatives proposed a bill, nicknamed the Break-up Bill, that aims to enshrine in law the possibility of dismantling tech companies as a sanction. If this anti-trust far-reaching measure has already been put into practice in the past, for instance with the dismantling of the economic empire AT&T in 1984 under President Reagan, this option does not seem to be the preferred one for now. Indeed, various arguments against this solution are given by political instances; for instance, that the fragmentation of GAMAM would not eliminate monopolies, but would only spread them across different sectors, or that it would favor the rise of the Chinese big tech companies (the BATX for Baidu, Alibaba, Tencent, and Xiaomi).
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Why Regulation is not the Solution and what are the Alternatives

 
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More recently, Francis Haugen, former data scientist at Facebook who denounced the company’s role in affecting users’ mental health and democratic processes, also positioned herself against breaking up the tech giants. As she testified before Congress for the second time, she promoted targeted regulation instruments, starting with the reform of the legal liability shield provided by Section 230 of the Communications Decency Act. This topic is currently dividing Congress; if passed, this reform could bring some change. Yet, it is too soon to tell how effective and compelling it will be.
 
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In the EU

>
>
For a few years now, political actors in democracies have been trying to legally frame layer-7 companies, especially the European Union first with the GDPR, and now the DSA as well as the DMA. Though the political intentions go in the right direction, to better protect the right to privacy and to fight against manipulation and hate speech online, (over)regulation does not seem to achieve this end. Indeed, the solution proposed has simply the effect of moving the hegemony from the private sector (the tech companies) to the public sector (the executive and judiciary powers) to a certain extent. Anyhow, it still favors a centralized system with opaque software; yet having one entity in possession of user’s data, be it public or private, cannot be the solution. Instead, platforms that rely on a free and open-source software and a decentralized governance should be promoted and implemented. Only that way can we ensure that user data remains truly private and can we prevent users from being manipulated by sponsored and targeted political content. These alternatives have existed for a few years now, like Diaspora, MeWe? or Mastodon, three platforms that use an open-source software and that propose to join or create your own pods. Yet, the deployment of these solutions is not preferred by governments that see this as an obstacle, since it would become much more complicated for them to extract specific data when needed (in criminal matters for example) if data privacy is really respected and if tech actors become fragmented. Therefore, it seems that only one option remains: support from society of these alternatives and mass education (from an early age).
 
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Likewise, in addition to the GDPR enforced in 2018, the EU Commission has drafted two major bills, the Digital Services Act (DSA) and the Digital Markets Act (DMA) that are about to be approved by the EU Parliament and the Council. The DSA aims to create a binding rulebook for platforms to moderate illegal content, disinformation and advertisement. While the intentions of the EU Commission seem to go in the right direction, legal scholars have identified several flaws to the measures proposed, for example that the DSA still considers online platforms as “gatekeepers”, and not “publishers”, further protecting them in its article 6, the so-called “Good Samaritan clause”, which serves as “a shield from liability for good-faith efforts to remove illegal content in a proactive manner” (2), or that it does not put any limitation to the core practice of political micro-targeting advertisement. In this respect, a few weeks after the whistleblower Frances Haugen testified before the EU Parliament, the European Commission presented a proposal on “transparency and targeting of political advertising”, that includes an obligation for platforms to label political advertisement, by revealing who paid for it and for how much.
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Eventually, as Dominique Boullier puts it (3), the dismantling of big techs, the transition from “hosting service provider” or “gatekeeper” to “publisher” status, the taxation increase of big tech’s advertising profits, and the implementation of a strict control system regarding hateful content and fake news could challenge the hegemony of the GAMAM, but this would require both a strong political will and a deep understanding of the threat that these platforms pose to democratic institutional systems, which lawmakers lack of for now.

The profound gap between our democratic culture and the governance in the GAMAM companies

As explained by Dominique Boullier (4), the governance system of the GAMAM relies on the famous “rough consensus and running code” approach, to which he added a third dimension that he called “apologies”. The “rough consensus and running code” model is driven by efficiency and pragmatic objectives, namely that “it works out”. This consensus decision-making process, that aims to reflect the dominant view, cannot be separated from the “running code” imperative. This means that while some people are discussing, it is always possible to do, to make, to develop, to test, without waiting for any specifications or directives. In that sense, this “taking action” culture is in total rupture with our representative democratic instances, that require a filtering process (cf lawmaking process and regulation) before acting. On top of that, the mere “apologies” made by Mark Zuckerberg when he was being auditioned by the EU Parliament after the Cambridge Analytica affair further show the contrast between our principles of law, that one is legally accountable for the harm caused, and this apology culture. This is viewed by Dominique Boullier as “a self-administered and therefore unenforceable morality, not subject to adversarial process, and a form of negation of law” (5).

In conclusion, one could consider that GAMAM have become the equivalent to states, with the three constitutive components of a state observed, namely territory, population, and sovereignty (this analysis is subject to discussion). Yet, contrary to Nation-states, they do not rely on a traditional legal and institutional structure, but on their own governance principles, making the regulation mission from other states even trickier.

Surely this rhetoric is ridiculous? Compared to what are these companies so formidable? The petroleum companies, which have been behaving as more than States since the end of the Second World War? The mining giants or the Odebeechts and Bechtels? Seeing the ease with which the Chinese Communist Party, wielding the weapons of the State has brought the Chinese platforms to heel should be a useful lesson in the location of coercive power.

Perhaps a layer-sensitive analysis would help to clarify what is at stake from what a couple of overheated European commentators have claimed. The telecomms in the transport business at layers 1-3 have always been creatures of the State to a significant extent. Microsoft was far more powerful as a monopolist in the software layers than it is now as a public cloud power among powers and statesperson among companies, which is its present posture. The primary pressures are at layer 7, where publishing, advertising, and retail selling—traditionally more localized industries with which state and market sectors had familiar arrangements arrived at over generations—have become applications in the Net, organized according to the principles of surveillance capitalism, severely disrupting national political economies. States are taking advantage of this disruption, almost as much as their constituent political parties and elected officials are. There is far less conflict between the political and the commercial interests than appears. The tiny European society-group, which has no commercial powerhouses among the world's layer-7 multinationals and remains unable to make any, has only a regulatory role to play in controlling commercial behavior in relation to its small number of very affluent citizens. So it talks big, because that's all it can do. But in the end, it settles for taking money from the US platforms and posturing before its voters.

Actually contesting the power of the layer-7 companies means building other forms of software that organize social life in other ways. That's eminently feasible, but while it immensely benefits society to create alternatives, that's less immediately beneficial to the State and its classe dirigente than to extract intelligence, political benefits and money from the parasite.

(1): Dominique Boullier, "Puissance des plateformes numériques, territoires et souverainetés", p. 31, Sciences Po Chaire Digital, Gouvernance et Souveraineté, May 2021, ˂https://www.sciencespo.fr/public/chaire-numerique/wp-content/uploads/2021/05/RP-Puissances-des-plateformes-num%C3%A9riques-territoires-et-souverainet%C3%A9s-Dominique-BOULLIER-Mai-2021-1.pdf˃.

(2): Valentina Golunova and Juncal Montero Regules, "The Digital Services Act and freedom of expression: triumph or failure?", Alexander von Humboldt Institut für Internet und Gesellschaft , February 2021, ˂https://www.hiig.de/en/the-digital-services-act-and-freedom-of-expression-triumph-or-failure/˃.

(3): Boullier, pp. 33-34.

(4): Boullier, pp. 38-40.

(5): Boullier, p. 40.

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EleonoreVaraleSecondEssay 2 - 06 Jan 2022 - Main.EbenMoglen
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META TOPICPARENT name="SecondEssay"
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
 

How GAMAM are disrupting our traditional democratic systems and challenging the concept of the Nation-state

Line: 39 to 38
 In conclusion, one could consider that GAMAM have become the equivalent to states, with the three constitutive components of a state observed, namely territory, population, and sovereignty (this analysis is subject to discussion). Yet, contrary to Nation-states, they do not rely on a traditional legal and institutional structure, but on their own governance principles, making the regulation mission from other states even trickier.
Added:
>
>
Surely this rhetoric is ridiculous? Compared to what are these companies so formidable? The petroleum companies, which have been behaving as more than States since the end of the Second World War? The mining giants or the Odebeechts and Bechtels? Seeing the ease with which the Chinese Communist Party, wielding the weapons of the State has brought the Chinese platforms to heel should be a useful lesson in the location of coercive power.

Perhaps a layer-sensitive analysis would help to clarify what is at stake from what a couple of overheated European commentators have claimed. The telecomms in the transport business at layers 1-3 have always been creatures of the State to a significant extent. Microsoft was far more powerful as a monopolist in the software layers than it is now as a public cloud power among powers and statesperson among companies, which is its present posture. The primary pressures are at layer 7, where publishing, advertising, and retail selling—traditionally more localized industries with which state and market sectors had familiar arrangements arrived at over generations—have become applications in the Net, organized according to the principles of surveillance capitalism, severely disrupting national political economies. States are taking advantage of this disruption, almost as much as their constituent political parties and elected officials are. There is far less conflict between the political and the commercial interests than appears. The tiny European society-group, which has no commercial powerhouses among the world's layer-7 multinationals and remains unable to make any, has only a regulatory role to play in controlling commercial behavior in relation to its small number of very affluent citizens. So it talks big, because that's all it can do. But in the end, it settles for taking money from the US platforms and posturing before its voters.

Actually contesting the power of the layer-7 companies means building other forms of software that organize social life in other ways. That's eminently feasible, but while it immensely benefits society to create alternatives, that's less immediately beneficial to the State and its classe dirigente than to extract intelligence, political benefits and money from the parasite.

 (1): Dominique Boullier, "Puissance des plateformes numériques, territoires et souverainetés", p. 31, Sciences Po Chaire Digital, Gouvernance et Souveraineté, May 2021, ˂https://www.sciencespo.fr/public/chaire-numerique/wp-content/uploads/2021/05/RP-Puissances-des-plateformes-num%C3%A9riques-territoires-et-souverainet%C3%A9s-Dominique-BOULLIER-Mai-2021-1.pdf˃.

(2): Valentina Golunova and Juncal Montero Regules, "The Digital Services Act and freedom of expression: triumph or failure?", Alexander von Humboldt Institut für Internet und Gesellschaft , February 2021, ˂https://www.hiig.de/en/the-digital-services-act-and-freedom-of-expression-triumph-or-failure/˃.


EleonoreVaraleSecondEssay 1 - 08 Dec 2021 - Main.EleonoreVarale
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Added:
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>
META TOPICPARENT name="SecondEssay"
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.

How GAMAM are disrupting our traditional democratic systems and challenging the concept of the Nation-state

-- By EleonoreVarale - 08 Dec 2021

The too late identification of the threat posed by GAMAM

If the risk of GAMAM (for Google, Amazon, Meta, Apple, and Microsoft) becoming all-mighty powers, thereby undermining our democratic structures, has been identified quite early in the academic world, around 2010, if not before, it took political leaders much more time to consider this issue as a danger. The French sociologist Dominique Boullier argues (1) that both the monopolistic ambitions of big tech companies (in terms of anti-trust law), and their immeasurable influence on the users’ behavior, made possible by large data collection, were issues scholars and whistleblowers tried to draw attention to from 2010. But, as he further explains, the tipping point in the political sphere occurred recently, with the Cambridge Analytica scandal in 2017 and the attacks on the Capitol beginning of 2021. These two triggering events, as they challenged the very essence of our democratic systems, namely the electoral process, acted as a waking-up call for political makers. Until then, the mechanisms of the digital platforms' hold on the market structure, on public opinion and on politics were already in place but were never questioned for economic reasons.

Insufficient attempts to regulate the Big Five

In the USA

On the two sides of the Atlantic, proposals are being made to create a stricter legal framework for the GAMAM. In the US, recently, the solution put forward has been to break up the Big Five. Debated during the election campaign of 2019, this idea is far from being unanimous. Still, in June 2021, the House of Representatives proposed a bill, nicknamed the Break-up Bill, that aims to enshrine in law the possibility of dismantling tech companies as a sanction. If this anti-trust far-reaching measure has already been put into practice in the past, for instance with the dismantling of the economic empire AT&T in 1984 under President Reagan, this option does not seem to be the preferred one for now. Indeed, various arguments against this solution are given by political instances; for instance, that the fragmentation of GAMAM would not eliminate monopolies, but would only spread them across different sectors, or that it would favor the rise of the Chinese big tech companies (the BATX for Baidu, Alibaba, Tencent, and Xiaomi).

More recently, Francis Haugen, former data scientist at Facebook who denounced the company’s role in affecting users’ mental health and democratic processes, also positioned herself against breaking up the tech giants. As she testified before Congress for the second time, she promoted targeted regulation instruments, starting with the reform of the legal liability shield provided by Section 230 of the Communications Decency Act. This topic is currently dividing Congress; if passed, this reform could bring some change. Yet, it is too soon to tell how effective and compelling it will be.

In the EU

Likewise, in addition to the GDPR enforced in 2018, the EU Commission has drafted two major bills, the Digital Services Act (DSA) and the Digital Markets Act (DMA) that are about to be approved by the EU Parliament and the Council. The DSA aims to create a binding rulebook for platforms to moderate illegal content, disinformation and advertisement. While the intentions of the EU Commission seem to go in the right direction, legal scholars have identified several flaws to the measures proposed, for example that the DSA still considers online platforms as “gatekeepers”, and not “publishers”, further protecting them in its article 6, the so-called “Good Samaritan clause”, which serves as “a shield from liability for good-faith efforts to remove illegal content in a proactive manner” (2), or that it does not put any limitation to the core practice of political micro-targeting advertisement. In this respect, a few weeks after the whistleblower Frances Haugen testified before the EU Parliament, the European Commission presented a proposal on “transparency and targeting of political advertising”, that includes an obligation for platforms to label political advertisement, by revealing who paid for it and for how much.

Eventually, as Dominique Boullier puts it (3), the dismantling of big techs, the transition from “hosting service provider” or “gatekeeper” to “publisher” status, the taxation increase of big tech’s advertising profits, and the implementation of a strict control system regarding hateful content and fake news could challenge the hegemony of the GAMAM, but this would require both a strong political will and a deep understanding of the threat that these platforms pose to democratic institutional systems, which lawmakers lack of for now.

The profound gap between our democratic culture and the governance in the GAMAM companies

As explained by Dominique Boullier (4), the governance system of the GAMAM relies on the famous “rough consensus and running code” approach, to which he added a third dimension that he called “apologies”. The “rough consensus and running code” model is driven by efficiency and pragmatic objectives, namely that “it works out”. This consensus decision-making process, that aims to reflect the dominant view, cannot be separated from the “running code” imperative. This means that while some people are discussing, it is always possible to do, to make, to develop, to test, without waiting for any specifications or directives. In that sense, this “taking action” culture is in total rupture with our representative democratic instances, that require a filtering process (cf lawmaking process and regulation) before acting. On top of that, the mere “apologies” made by Mark Zuckerberg when he was being auditioned by the EU Parliament after the Cambridge Analytica affair further show the contrast between our principles of law, that one is legally accountable for the harm caused, and this apology culture. This is viewed by Dominique Boullier as “a self-administered and therefore unenforceable morality, not subject to adversarial process, and a form of negation of law” (5).

In conclusion, one could consider that GAMAM have become the equivalent to states, with the three constitutive components of a state observed, namely territory, population, and sovereignty (this analysis is subject to discussion). Yet, contrary to Nation-states, they do not rely on a traditional legal and institutional structure, but on their own governance principles, making the regulation mission from other states even trickier.

(1): Dominique Boullier, "Puissance des plateformes numériques, territoires et souverainetés", p. 31, Sciences Po Chaire Digital, Gouvernance et Souveraineté, May 2021, ˂https://www.sciencespo.fr/public/chaire-numerique/wp-content/uploads/2021/05/RP-Puissances-des-plateformes-num%C3%A9riques-territoires-et-souverainet%C3%A9s-Dominique-BOULLIER-Mai-2021-1.pdf˃.

(2): Valentina Golunova and Juncal Montero Regules, "The Digital Services Act and freedom of expression: triumph or failure?", Alexander von Humboldt Institut für Internet und Gesellschaft , February 2021, ˂https://www.hiig.de/en/the-digital-services-act-and-freedom-of-expression-triumph-or-failure/˃.

(3): Boullier, pp. 33-34.

(4): Boullier, pp. 38-40.

(5): Boullier, p. 40.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


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