Refocusing on the Constitution – Approaching Internet Legislation and Regulation through the Eyes of the Constitution: A Research Sketch

Abstract

If it is true that territorial coercive governmental force remains the hallmark of governance in the internet age then it should be the territorial constitution that directs but also restrains this force. While already considerable thought has been devoted to the issue of how the reading of certain fundamental rights and constitutional principles and the understanding of their underlying values contained in territorial constitutions might have changed due to the emergence of the internet technology and possible resulting changes in social behavior, this study chooses a different, in respect of the internet so far not sufficiently explored avenue. At the heart of this study lies the question of what internet-related legislation and regulation do to constitutions. More precisely, this study wants to look at whether, where and how fundamental rights and constitutional principles (“constitutional issue areas”) have been limited or bolstered by internet-related legislation and regulation (“internet-related norms”). A constitution does not only form governmental legislation and regulation, but governmental legislation and regulation also significantly shape the understanding of principles and beliefs underlying the constitutional issue areas and, in the end, will also alter the reading of the constitutional issue areas itself. This having said it becomes reasonably clear that it is only by identifying such internet-related norms which are able to shape our reading of constitutional issue areas that a society is put in the position to thoroughly discuss underlying principles and beliefs before legislation or regulation tacitly transform, first, our understanding of principles and beliefs and, later on, the reading of the constitutional issue areas. However, this study does not (yet) want to trace how, for example, the incremental expansion of data retention legislation is altering our understanding of the normative constitutional concept of the right to privacy. The primary purpose of this study is a somewhat more modest one: it wants to enable holding this debate by better understanding where, to which extent and in which way internet-related legislation and regulation restrict or bolster constitutional issue areas. This “enabling to debate” shall, though, not be confined to the boundaries of a specific jurisdiction but this debate shall ideally extend across different legal systems allowing for cross-reference and cross-fertilization. In order to achieve this end this study resorts to a comparative approach, categorizing internet-related norms from various jurisdictions into selected constitutional issue areas.