Digital Constitutionalism : Using the Rule of Law to Evaluate the Legitimacy of Governance by Platforms

Platforms govern users, and the way that platforms govern matters. In this paper, I propose that the legitimacy of governance of users by platforms should be evaluated against the values of the rule of law. In particular, I suggest that we should care deeply about the extent to which private governance is consensual; transparent; equally applied and relatively stable; fairly enforced; and respects substantive human rights. These are the core values of good governance, but are alien to the systems of contract law that currently underpin relationships between platforms and their users. Through an analysis of the contractual terms of service of 15 major social media platforms, I show how these values can be applied to evaluate governance, and how poorly platforms perform on these criteria. The values of the rule of law provide a language to name and work through contested concerns about the relationship between platforms and their users. This is a necessary precondition to an increasingly urgent task. The law of contract does not address these governance concerns, and the concept of constitutional rights does not extend to governance by private actors. Finding a way to apply these values to articulate a set of desirable restraints on the exercise of power in the digital age is the key challenge and opportunity of the project of digital constitutionalism