The McCourt Institute and Sciences Po Law School

With funding from the McCourt Institute (now Project Liberty) the Sciences Po Law School houses the project “Towards a New Digital Rule of Law.” DIGILAW, the Cyborg lunch talks and the yearly conference are part of this project.

Project: Towards a New Digital Rule of Law (ongoing)

How can the values and rights needed to sustain democracies and the common good be upheld and ensured in our digital world? What is the role of the law in this environment where technologies, infrastructures, big players and users themselves construct normativities beyond the law itself?

Towards a New Digital Rule of Law investigates and finds policy oriented solutions to this problem.  The challenges of the Internet might appear new in their scope and breadth, though they have been researched by legal scholars and practitioners for the last decades.

Beyond specific issues of applications of law to cyberspace, a constant challenge of the internet and its governance revolves around the principle that all members of a society, whether individuals, communities, and even governments, are subject to codes of behavior that work towards the common good and/or goals of a society. That is, to the rule of law. 

The first iteration of the Towards a New Digital Rule of Law project we will develop our general inquiry by focusing on three lines of research, each led by a faculty member of Sciences Po Law School.

1. Revamping constitutional law concepts for a digital rule of law

Prof. Tusseau

Constitutional Law is the area of law and legal theory concerned with the definition of roles, powers and rights of different actors within a state - it is the body of law in charge of limiting power and defining the common good of a society. Thus, the question of revamping traditional constitutional concepts that apply to contemporary forms of governance is crucial. Can traditional principles related to the separation of powers and the protection of fundamental principles be updated to fit new technologies? How? Do we need new ones? This line of work will investigate these questions by studying on-going projects like the 2018 attempt in France for a Digital Rights Charter; the Digital Rights Charter successfully presented by the President of the Spanish Government in 2021, or Chile’s amendment to Article 19 of its Constitution to “protect the integrity and mental indemnity of the advances and capabilities developed by neurotechnologies," adopted in 2021. These provisions testify to an emerging range of problems and thinking at the most fundamental level of the legal system and to an emerging field of academic enquiry that directly connects to practical implementation. Often, however, the governance of new technologies seems to be addressed as a set of discrete questions (access, privacy, biases, etc.). 

Objective: By adopting a broader perspective on constitutional law, this line of research intends to offer a more global perspective that helps to make sense of how the governments of the world are reacting to and understanding this challenge.

2. Governing AI in a democracy

Prof. Langenbucher

How to capture the many uses of AI has been a growing concern of regulatory bodies and brings out cultural differences across areas such as the US, the EU and Asia. One of the main concerns about AI - despite its many benefits - is the loss of transparency and accountability in decision-making. This risks increasing the power of those who deploy these tools and enabling a form of digital authoritarianism. This line of research will explore the principles, tools and regulatory mechanisms for governing AI in a democracy, by addressing, as a first case study, the  EU Proposal for an AI Act (2021). Given the global ambition of the EU project, the proposal is critical for the construction of a digital economy and a new regulation model for the common good and continues to position Europe as a “regulator” of the global digital information economy. The EU Proposal has a twofold goal: fostering innovation while providing adequate protection against AI’s societal risks. The proposal starts from the assumption that a set of fundamental principles should apply horizontally across all “AI use cases” and singles out prohibited and high-risk cases for which it creates a series of compliance requirements. We will use AI-driven credit scoring as a test case for the Proposal’s new framework, due to its every-day salience, its potential to expand from credit scoring to (varieties of) social scoring and its potential for fruitful interdisciplinary and comparative work. 

For this line of research, we will organize a conference in May 2022 to bring together multiple stakeholders with the aim of influencing its final version. 

Objective: By looking at AI regulation through the EU Draft AI Act and its possible application to credit-scoring, this line of research contributes to shaping both, debate and policy output on regulating AI in a democracy. 

3. Governing the infrastructures of data and the web for the common good

Prof. Botero Arcila

Discussions on the future and present of the web often focus on the design and governance of its infrastructure. These range from Web 3.0. and the potential of decentralizing infrastructures to unleash unprecedented possibilities of collaboration and innovation; Web 4.0. and the role of AI and IoT in transforming and further digitizing our daily interactions, to Facebook’s newly announced focus on building a metaverse. At the same time concerns about surveillance and data inequality increasingly emphasize the need to go beyond data protection laws to focus on the role of unequal control over the infrastructures that generate, shape, process, store, transfer and use data. 

Central to the question of an Internet and a digital information society that works for a common good, is thus the question of the role of governance through and of infrastructures. For legal scholarship, the question is also what is the role of law and how it must evolve, as it interacts with other governance mechanisms - like infrastructure, the market, and culture - in doing so. Code as a regulatory mechanism is, indeed, one of the key insights of early cyberlaw. This line of work will study ongoing current initiatives at the supra governmental level - from discussions at ICANN to the EU on standards and interoperability- to solutions coming from the private sector. The driving questions will be what are modes of intervention in the governance of the infrastructures of the Internet that can facilitate a web in which the values of the rule of law are better safeguarded, while at the same time, curbing some of the digital inequalities that are prevalent today. 

Objective: By looking at how infrastructures govern the Internet and data collection, this line of research contributes to understanding different modes of governance and how they interact with law to have a web in which the values of the rule of law are better safeguarded and curve some of the digital inequalities that are prevalent today.