This essay is part of a symposium on the prospects and dangers for human rights in the governance of digital platforms. Read the rest of the series here. New posts will be published between June 18th and June 30th 2024.
Pedestrians walk in front of the entrance to the European Commission headquarters in Brussels, Belgium on July 1, 2021. Shutterstock
After decades of creative debates, transformative negotiations, and passionate (border) struggles about potential socio-technical imaginaries of the future of the Internet, a certain sense of closure is looming on the horizon. As advanced computational technologies rapidly converge to create an ever-expanding infrastructure of information and computation, and as value chains of technological production transfer materials and wealth from the South to the North, “our” digital world shows clear signs of an institutionally stable world order, shaped and sustained by corporatist dynamics and legally constructed forms of governance. This is no longer (even though it once was) just a matter of human rights, markets, competition, and innovation, but a matter of sovereignty, power, and control over flows of capital and information in a deeply divided (but globalized) world.
Europe, with its centralized regulatory institutions and its acquis communautaire with human rights and the rule of law at its core, has led the “race” towards stabilizing this kind of order. As such, scholars and policymakers both within and outside Europe have long theorized, advocated for, and prided themselves on the influence that Brussels has had on the conception, formulation, and dialectics of technology regulation around the world.
Decades on, the Brussels effect (a term that accurately describes the globalizing effect of EU regulation) is as much a regulatory phenomenon as it is a policy exploration or political project: a self-reinforcing priority that can exert a form of policy pressure independent of other institutional variables (social demand for regulation, timing of regulation, process and balance of the legislative process, etc.). In other words, Brussels must regulate digital “things” first. From foundation models to platform workers, from health data to quantum chips (we don’t know what these will look like in the future), EU policymakers seem to be constantly under constitutional anxiety to reaffirm their role as “standard setter” for global digital regulation, leveraging the dynamics of the internal market and the EU’s broader European integration strategy. Becoming a “universal standard” has therefore become an end in itself.
International law scholars would probably warn at this point that “we’ve seen this before.” Universalism has been expressed diachronically through a variety of terminologies (from the “civilized vs. barbaric” dualism to the Enlightenment to science) and has given its self-legitimizing force to a variety of normative and intellectual ideas and movements. In such a context, international law, and more recently human rights, were/are conceived as key elements of the postwar international legal order: standards that all nations must reflect and adhere to if they want to “improve” and be accepted as equals in the “international community.”
Amidst the frenzy of legal developments, endless tripartite meetings, and pompous political pronouncements, perhaps it is time for scholars and policymakers to pause, take a breath, and look back. Given the huge power imbalances in the production of information and computing technologies, the (potential) harms these technologies cause to people and communities, and the market-driven and/or market-enabling nature of the EU’s “world-leading” regulatory interventions, we believe it is time for EU/Global North tech lawyers to face up to the reality that they/they have created. The persistence and expansion of data collection activities, the consolidation of advertising-driven business models as the standard for the provision of online services, the working conditions of content moderators in global and national governments, the proliferation and justification of mass surveillance technologies at home and abroad, the double standards on data protection and privacy at European borders, the ridiculously insulting cookie banners that appear constantly on the web, OpenAI CEO Sam Altman’s influential policymaker persona, wartime disinformation campaigns, the spread of hate speech, the impact of social media on children’s mental health, and the impact of digital services on the environment are just one version and illustration of the digital world we could have had today. And it is the world we ended up having because of the standards we have driven through our organizational imagination, money, and time.
So we think we need to have a conversation about exactly what tech lawyers and policymakers in the EU and the Global North have done – and have forced others to do – with these possible worlds.
The Brussels Effect was our methoq. We theorized it, celebrated it, and defended it. Our expertise was finally needed in a global forum, and we were proud that others were mimicking our behavior. We didn’t simply have a seat at the table; we were the table. And, frankly, we enjoyed it. In fact, we liked it so much that we eventually forgot what we liked and ignored why others liked us. Our self-esteem persisted even after this institutional memory of us was gone. We felt listened to when luminaries in the tech field asked for our advice. We felt good about doing “something” even if we knew it was (almost) nothing. And we posted funny memes on Twitter to celebrate our “first” and “world-leading” legislative acts, even if we didn’t actually have one at hand.
No matter how many human rights impact assessments BigTech’s compliance departments produce, or how huge the fines they have to pay, those of us who find this system useless (with our fossilized thought patterns and mental maps) need to think hard about the role of the European Union in (infrastructurally) structuring a messy, highly unequal and exploitative digital environment. To do so, we need at least three closely related steps: one normative, one epistemological and one methodological.
First, we need to question the assumption that European digital policy, the Brussels effect, and its manifestations in the digital policy field have necessarily been good for us and the rest of the world. The presence of one central regulatory node has been both a consolidation of regulatory logics and, inevitably, a gravitational field for lobbying forces, as well as a benchmark for rulemaking. We need to reassess the assumptions we have taken for granted when thinking about how to regulate technologies and platforms, and engage with world-shaping questions about the kind of digital transformation we and others want to see in the world. And we need to empirically evaluate the impact our digital policies have had on people and communities outside our “nearby”.
Second, we need to study how legal terminology and mental maps have evolved and how they (mi)align with the technological transformation on the ground. We can no longer adapt to the affordances and production logic of contemporary technologies that are based on regulatory frameworks and thought patterns born from past technologies. An intermediary that hosts your blog is quite different from an online platform that monetizes your engagement. A server you set up to host your website is quite different from a cloud that invites applications and dependencies. A personal computer that runs on a CPU that you use to access the internet is quite different from a phone, a gadget, a wallet, an ID verification device, a proximity sensor, or the smartphone you carry in your pocket as an AI assistant. Building the capacity to understand technological transformation and translate its relevance into law and policy will require the formation of new epistemologies. In other words, the fields of law and technology need “new lawyers” more than new laws.
Third, in terms of methodology, technology lawyers need not reinvent the wheel or settle for another interdisciplinary project when exploring new work and ways of thinking. Other disciplines, histories, and epistemological communities have been pondering for decades the issues and questions that we now deem worth exploring: the rise of private power on the national and international stage, the impact of technologies from the Global North on the Global South, the (in)adequacy or cost of existing human rights frameworks as a standard for living and organizing our societies, the role of money and venture capital in shaping technology. These are all questions that are novel only if we have not fully examined them. Engaging in these tasks may inspire us to explore new methodological avenues for the legal academic community (within or beyond doctrinal approaches) and alternative paths of legal practice.
In conclusion, for over a decade, Brussels has been the epicenter of technology regulation, a gravitational field that attracted funding, political capital, and expertise to shape the “digital” order that quickly transformed into an institutionalized (global) reality. Technology regulation became an end in itself, and the success of the effort was measured by its ability to find compromises between seemingly competing interests. Unfortunately, this was not the case. Where EU policymakers went with their goals and interests, others went with their visions and strategies.
To learn from past legal and regulatory practice, we technology lawyers need to understand that we do not hold the keys to the future. Rather, it is private actors, government officials, market orchestrators, and aspiring market makers who have a valuable vision of the future and the financial, human, and organizational capital needed to realize and stabilize it. To decipher their vision and foresee the future they are aiming for, we need to study their motivations and trajectories, which are usually not found in what regulation seeks to encompass, but in the routines of sociotechnical practice, the legally constituted material and logistical infrastructures, and the hotbeds of private and international law that form the backbone of the institutions that sustain and improve the conditions of our individual and collective lives.
