Beyond Oversight: Advancing Societal Constitutionalism in the Age of Surveillance Capitalism

Abstract

The paper deals with the Oversight Board (OB) established by Facebook from the perspective of societal constitutionalism (SC), one of the legal-theoretical approaches most used to frame new forms of normativity emerged in the context of online platforms and transnational digital economy. Firstly, it shows that the trajectory followed by Facebook and its normative order indeed fits with the analytical tenets of SC. However, and secondly, it uses the normative limb of SC to argue that it is not enough to focus on the crucial but still relatively narrow issue of content moderation. Rather, it is the manipulation of individuals and the related social effects, deriving from a business model of surveillance capitalism, that must be limited by Facebook’s normative order. Only in this way an effective constitutionalisation of Facebook may take place. To that purpose, the paper finally argues, a strong intervention by states and political actors is necessary, and hints to some potential policy proposals. The problems raised by surveillance capitalism will be at the forefront for years to come, but they can only be addressed if constit-uent impulses are effectively internalised into the decision-making premises of the actors in-volved. SC may usefully contribute to such an agenda.