The present article illuminates something important yet undertheorized about the relationship between democracy, technology, and globalization. That is, that digital technologies are crucial for certain types of cross-boundary interactions between individuals or communities, and that these interactions are crucial for democratizing relations of power and authority established in and by regimes of global governance. The article does so by linking together two related conversations that have yet to take sufficient account of each other: those taking place between law and technology scholars on the democratizing potential of digital technologies, and those taking place amongst international lawyers on the relationship between democracy and globalization. The article undertakes this alchemy by putting forward the theoretical construct of the “political voice.” This construct offers a normative theory that outlines the democratic functions of vertical communications between individuals and public decision-makers within and across boundaries, but also, crucially, explains how these are dependent on robust horizontal, transnational exchanges between individuals or communities. This construct thus offers a lens through which to evaluate the extent to which digital technologies live up to their democratizing potential, and allows for a normative conceptualization of the possible consequences of their failure to do so as a problem of global governance.

1. Introduction

Babel 2001” by Cildo Meireles in the Tate Modern Museum in London features a tower of radios of varying sizes and ages, some dating back to the 1920s and some more modern. Recounting in visual and conceptual form the biblical story of the Tower of Babel, the artwork seamlessly interlaces two themes. The first alludes to the link between communication technologies and the ultimate source of humankind’s conflicts—the inability to communicate.1 The second concerns “the intricate interactions between distinct nations and communities”2 in a world where the scrupulous demarcation of political borders is muddled by the intensity and diversity of global human interaction.

The two themes that “Babel 2001” weaves together correspond to two central conversations that are closely linked, but that are mostly taking place in two distinct fields. Both conversations are concerned with ideas of and avenues for democracy under conditions of globalization. “Conversation I” takes place in the field of law and technology, focusing on the relationship between democracy and technology. Meireles’s radios are replaced by the Internet and digital platforms, in explanation of the democratizing potential that lies in the novel opportunities that these global infrastructures have created for horizontal cross-boundary speech and information exchange. “Conversation II” takes place in international legal scholarship, and focuses on the relationship between democracy and globalization.3 This conversation is also thematically centered on the democratizing potential of cross-boundary communication and information exchanges. Here, however, emphasis is placed on transnational vertical relationships of power between individuals and global governance bodies, within which these exchanges are important.

Despite their common concern, the two conversations do not seem to take sufficient account of each other’s objects of analysis, with important consequences. “Conversation I” does much to explain how technology can democratize globally. But it lacks a normative theory that explains what it is precisely that democracy demands in this transnational context, and why we should even care about cross-boundary flows of information and communication between individuals from distinct political communities. We could expect to find such a theory in “conversation II” among international lawyers who explicitly emphasize these questions. But that conversation also misses the mark because of its intense focus on vertical relationships between public decision-makers and affected stakeholders, with little attention to the type of horizontal cross-boundary interactions hailed by law and technology scholars. This oversight might seem of little importance from the perspective of international lawyers. But unless these horizontal interactions are meaningful, the vertical interactions that interest international lawyers are unlikely to yield their desired democratizing effects.

We can start to better understand how technology may operate to advance or hinder democracy in a globalized world, and to theorize the importance of this potential or its associated risks, only by bringing these two conversations together. Like Meireles’s artwork, then, my project in this article is to weave together these conversations in order to illuminate something crucial about the relationship between technology, democracy, and globalization, which is currently undertheorized in both conversations, each in its own way. The payoffs of this work of alchemy, I hope, will be noticeable in both.

I do so in this article in three parts. In Section 2, I flesh out the common grounds of these two conversations and their respective oversights in relation to each other. In Section 3, I offer to link these conversations together by putting forward a theoretical safety pin that I term the “political voice.” The notion of the “political voice” as I put forth denotes individuals’ ability to meaningfully partake in open, deliberative, and agonistic forms of public discourse and information exchanges with fellow community members and with public decision-makers. It is a theoretical construct that draws its normative weight from a broad range of theories of democracy; but it is also analyzed here and given meaning in the context of globalization and its attendant problematization of the tight fit between democracy and the frame of the nation-state.

The analysis and synthesis of these theories also allow us to distinguish between, but also establish the interrelatedness of, two dimensions of the political voice that correspond to each of the conversations above, and to point to the fundamental democratic functions served by each: its horizontal dimension with its educative and epistemic functions, and its vertical dimension with its liberating and equity functions. The political voice thus provides a robust normative framework for understanding the significance of horizontal communications and information exchanges within, across, and beyond borders; and, notably, their importance for vertical relationships between communities of affected stakeholders and public decision-makers.

The payoffs of linking these two conversations together are revealed in Section 4. There, I employ the construct of the political voice as a lens through which to scrutinize the extent to which digital technologies live up to their democratizing potential, and to normatively conceptualize the pitfalls that are often associated with these technologies. I draw attention here to the ways in which digital platforms are governed by private Big Tech companies and their gatekeeping functions.4 I focus on Big Tech’s advertising-based monetizing structure and the personalization of information and communications that it demands, to argue that this model poses a risk of contributing to “political voice deficits” within and across boundaries, and of exacerbating a global “political voice deficit matrix.” My aim in this part is to offer a normative appraisal of Big Tech that is not juxtaposed with the affordances and risks of the mass media-based communicative environment of the past, nor with those of communicative environments that are heavily constrained, censored, or dominated by state actors. Rather, it is to shed light on the extant reality of the central role that private Big Tech companies assume today in the global governance of public discursive spheres, and to offer a self-relational normative yardstick to evaluate this role in light of the important democratic functions that these companies can, and perhaps ought, to fulfil today in a globalized world.

2. The blind men and the elephant

“The idea that the Internet democratizes is hardly new,” wrote Yochai Benkler in his 2008 book The Wealth of Networks.5 But while this idea may not be novel, there are many—often contradictory—ways through which to frame and theorize this democratizing potential or quality that have been occupying law and technology scholarship for quite some time now, and are difficult to neatly map or taxonomize within the confines of a single article.6

Clearly though, an overwhelming focus of this democratization discourse has been on how Internet technologies have created novel opportunities for individual freedoms vis-à-vis the state. It is this theme that mostly animates, for example, both the “anarcho-libertarian” views prominent in the 1990s,7 and the later paradigmatic liberal approaches of scholars such as Lawrence Lessig and Joel Reidenberg.8 They also animate more contemporary writings in the field.9 In these contexts, the democratizing potential of the Internet remains conceptually tethered to the idea of democracy as tightly overlapping with the frame of the nation-state.

But there is another, much less explicit, theme, which speaks to the transnational features of Internet structures, where the language of democratization has been employed to signal something about the novel cross-boundary and horizontal connections and relationships between individuals in a web-mediated globalized world. Indeed, the decentralized information and communication infrastructures of the Internet have quantitively transformed the consumption of information and methods of communication by conjoining billions of spatially dispersed individuals and communities.10 These infrastructures allow for the transnational and relentless sharing of data and content between globally diffused individuals through social networking sites while reducing the costs of information and of speaking through platforms ranging from eBay to Wikipedia.11 Importantly, these quantitative transformations have assumed an even greater revolutionary aura on account of the qualitative changes that digital technologies have introduced into our communicative practices: digital platforms have become a (if not the) principal medium through which individuals in many parts of the world manage their economic, social, and political relations.12

This aspect of the Internet’s democratizing force has not attracted much explicit attention in the law and tech field.13 Importantly, even when the language and grammar of “democratization” have been used by law and tech scholars to describe these purportedly important cross-boundary effects in a globalized world, there has been little normative examination (as opposed to presupposition) of why this democratizing potential is important or desirable, and even fewer discussions scrutinizing what exactly it is that “democracy” demands in this context.14

Meanwhile, conversations about the demands of democracy in transnational contexts are happening in parallel rooms. These conversations are set against the backdrop of other, corresponding transformations that globalization has introduced into our political existence.15 The full canvas of these conversations is also hard to capture here in full.16 But to paint the picture in very broad strokes, suffice to mention how processes of global economic integration, increased global mobility,17 threats of a transnational or global nature (pandemics, climate change),18 and the proliferation of global governance regimes have all perforated the Westphalian boundaries between matters “domestic” and “international,” and unsettled paradigmatic conceptions of the state–citizen relationship.19 These trends have demanded a reevaluation of the extent to which, as put by Susan Marks, “democracy can continue to be conceived exclusively in national terms.”20 Specifically, Marks observes:

As a result of processes of globalization, the fate of national communities is increasingly shaped by decisions taken outside the framework of national political institutions—in other countries, but also in international organizations, informal meetings of national and international officials, and the “private” domain of global markets. . . if we want democracy in national settings, we must find ways of bringing democratic principles to bear in international and “transnational” settings as well.21

The democratic principles brought to bear in transnational settings by international lawyers have primarily been those that relate to democracy’s discursive elements: the use of voice as a “regulative ideal.”22 The notion of voice as a regulative ideal in cross-boundary contexts alludes precisely to the type of theory that is absent from law and tech scholarship. It ascribes normative relevance to the ability of individuals to exchange information and communicate across borders. At the same time, however, the type of cross-boundary communications preoccupying international lawyers are, in particular, the vertical discursive interactions between individuals and public decision-makers. As a regulative ideal, these vertical discursive interactions are meant to lend democratic legitimacy to, or mitigate the democratic deficits created by, the novel relations of power and authority that globalization and regimes of global governance have forged between diffused stakeholders and foreign decision-makers.23 In other words, they are meant to mirror the notion of democratic accountability by enabling affected stakeholders to influence public decision-making in order to guarantee that their interests are taken into account by those who, in turn, considerably influence their life opportunities.

What is largely absent from the international legal discourse are discussions about the ability, and indeed desirability, of diffused stakeholders to exchange information and communicate amongst themselves, across borders, horizontally.24 In other words, there is little theorization of who is the relevant “public” in “public discourse” under conditions of globalization, and what principles should regulate communications within and between these publics.25 This is despite the fact that, as I argue in detail later, there is a strong link between the robustness of horizontal discursive exchanges between members of communities of affected stakeholders (or publics) and the effectiveness of vertical mobilization of these groups vis-à-vis public decision-makers. Upon reading these two bodies of scholarship in tandem, one is strongly reminded therefore of the parable of the blind men and the elephant.26

In Section 3, I offer to bridge these conversations by introducing the notion of the “political voice.” The political voice helps illuminate the missing parts in both conversations: it explains why open, public discursive interactions between individuals both within and across boundaries are important in a globalized world, and what role these interactions play in relation to cross-boundary vertical discursive relations between individuals and public decision-makers. In Section 4, it will serve as a lens through which to assess whether digital technologies fulfil their democratizing potential.

3. The “political voice”

The idea of “voice” in social, political, and economic relations is by no means novel. In the market context, for example, the notion of “voice” has been framed by Albert O. Hirschman in his classic Exit, Voice, and Loyalty as the ability of consumers to “kick up a fuss”—a tool for conveying dissatisfaction, an instrument for policy change, or a “mechanism for recuperation.”27 The economic understanding of “voice” indeed overlaps with some of its political functions. And yet, in the context of politics, “voice” has also been more reverently framed as a paradigm, or a democratic ideal.28 In this article, I draw on Hirschman, but more centrally on theories of democracy, to put forward the notion of the “political voice.”

This notion as I define it here denotes practices of robust participation in open, public discursive exchanges with fellow community members and with public decision-makers. As a theoretical construct, it encompasses all aspects of political exchange and communication which serve a function within the democratic edifice. My use of the definite article “the” in reference to this concept is therefore no grammatical oversight. It emphasizes my intention that the political voice, although referred to in the singular form, nevertheless embodies a multiplicity of democratic practices, thus “attending to the multiplicity of reality” rather than implying a singular object or method.29 Importantly, the theoretical construct that I offer aims to respond to the exigencies of a globalized world that have unsettled the tight fit between democracy and the nation-state. In putting it forth, I propose a view of one important element that democracy may demand today in transnational contexts.

The theories which inspire the political voice, and which speak to its normative force, do not form part of one coherent corpus. They all elaborate, however, on the important functions of democracy’s discursive features. To be sure, the discursive elements of democracy are not prioritized by all theories of democracy.30 To give one prominent example, theories that emanate from the liberal tradition31 nurture a minimalist conception of political participation, narrowly reducing it to the individual, private, and secret vote.32 This narrow perception of political participation links to fundamental assumptions that liberal theorists hold with regards to the aims of democracy as a form of political organization: it is predominantly meant to protect individuals’ preexisting and divergent interests and perspectives.33 Hence, in the liberal view, democracy is tasked with cultivating a “freedom from34 through the imposition of constraints on government to generally refrain from interfering with the private lives of individuals.35 Accordingly, in the words of Frank Cunningham, liberal theories “view a large measure of political inactivity on the part of ordinary citizens essential to democracy.”36

Opposite the liberal tradition, however, are theories of democracy that emphasize individuals’ ongoing and active participation in the processes by which their lives are controlled, that go far beyond the act of voting.37 The theories on which I draw here, and weave together to underpin my account, include the political philosophies of John Stuart Mill and Hannah Arendt as two individual thinkers; participatory and deliberative theories; neo-republican theories reflected mainly in the work of Philip Pettit; and, somewhat differently, Chantal Mouffe’s agonistic political theory. Taken together, these theoretical bodies offer a rich and comprehensive normative exposition of the value of democracy’s discursive features.

At the same time, however, most of these theories largely remain faithful (at least implicitly) to Westphalian conceptions of “community,” “public,” or “polity” and its relevant public decision-makers, that overlap with the political boundaries of nation-states and the “coloured areas on maps.”38 The account that I offer therefore also reconsiders the deep embeddedness of the practices represented by the political voice within the nation-state imaginary, and makes a claim about their relevance to more flexible notions of the “political community” or the “public,” and its relation to globally dispersed centers of power.

In my treatment of this rich multiplicity, I analytically map terms that relate to the political voice and that are traditionally employed by democratic theorists—such as “public discourse,” “public deliberation,” and “political participation”—along two dimensions that are often entangled in theories of democracy, or at least insufficiently disentangled. Each of these dimensions can be explained in terms of the specific functions it serves in democratic governance. Each of these dimensions also corresponds to each of the conversations described in Section 2.

The vertical dimension is the one attracting the interest of international lawyers. It relates to the notion of effective, bi-directional information flow and communication between individuals or collectives and public decision-makers who affect their life course, and it serves liberating and equity functions on which I elaborate. The horizontal dimension is the one to which law and tech scholarship alludes in discussing the Internet’s transnational features. This dimension relates to open information exchanges and deliberative or agonistic communications amongst members of communities of affected stakeholders themselves. It demands that individuals be able to receive pertinent information, and express and debate their political interests and claims on equal footing with those who, with them, are commonly subject to structures of political authority. This dimension of the political voice serves educative and epistemic functions on which I also expand below. Although these two dimensions refer to distinct aspects of political exchanges, they also intersect. In order to depict and explain the ways in which they relate to one another, the article further develops the notion of a “political voice matrix.”

3.1. The “political voice matrix”: Two dimensions, four democratic functions

a) The vertical dimension

Democratic theorists have written extensively about the liberating and equity functions of vertical exchanges between individuals or collectives and public decision-makers. Most notable in foregrounding the linkage between these exchanges and notions of liberty and democratic self-determination have been neo-republican theorists, and in particular the work of Philip Pettit.39 Neo-republican theory emanates from the republican tradition of thought, but reinterprets and transforms its classic ideals into a modern political doctrine.40 At its core is a revised understanding of the concept of liberty, or political freedom, and the ways in which politics should be reconsidered to match this concept and its demands.41

This concept of political freedom, termed the principle of “liberty as non-domination,” relates to individuals' positive power to be in control of their own destiny.42 A requisite pre-condition for this type of freedom is individuals’ capacity to not be subject to others’ power to arbitrarily interfere in certain choices they (individuals) are in a position to make.43 On this account, suffice that the power to arbitrarily interfere exists for domination to ensue (regardless of whether interference has actually taken place), but at the same time, one can interfere without dominating insofar as the interference takes place under constitutionally determined conditions, is controlled by the ones interfered with, and is based on their interests and preferences.44

The neo-republican concept of liberty as non-domination thus demands more than informed voting. It requires that stakeholders exercise a form of joint and, importantly, routine influence and control over public decision-makers that is both unconditioned45 and that has the power to invalidate the imposition of any alien or private will.46 Central to these forms of joint influence and control are practices of vertical discursive exchanges whereby stakeholders are able to receive relevant information from those in power, and to effectively assert their political interests ex ante or contest the disregard of these interests ex post.47 For liberty as non-domination to endure, the process of public decision-making must therefore be guided by certain deliberative process norms according to which interlocutors defend their positions on the basis of convergent or concordant considerations that are relevant to all those affected.48

The robust practices of vertical discursive exchanges also assume equity functions. What has been termed the “political essence of justice” is foregrounded in the demand “that no person should be subjected to certain norms or normative arrangements that cannot reciprocally and generally be justified to those subjected.”49 This concept of justice as non-domination draws on the work of Pettit, commanding that people have a right to discursive justification when it comes to decisions that impact their life opportunities.50 A right to discursive justification may be institutionalized through the political voice ex ante, to ensure that no one’s voice is ignored and that no person is disregarded, and ex post, to guarantee that individuals or collectives obtain substantive reasonings that justify the impact of public power on their life opportunities.51 A similar argument was made earlier by Mill, in maintaining that the exclusion from participation in decision-making fora—the inability to make one's voice heard—is a matter of “personal injustice.”52 He remarks: “Every one is degraded, whether aware of it or not, when other people, without consulting him, take upon themselves unlimited power to regulate his destiny.”53 Justice thus compels the equal consideration of individuals’ interests, namely the “equality of means for participating in deciding on the collective properties of society.”54 These intrinsic properties are coupled with the instrumental value of the vertical political voice, in its contribution to achieving more just laws55 and, ultimately, to the equitable distribution of resources between community members.56

But perhaps more important in the context of this article is the attention that neo-republican theorists have paid to the impact of globalization on their normative theory. Echoing the concerns of international lawyers over the “ills of global governance,”57 neo-republican theorists point to the ways in which globalization has problematized the central role of the state in securing individuals and collectives against domination.58 Not only do international arrangements enable the subjection of states to the dominating force of other states or of various public and private institutions,59 but other structural features of the international order also deny individuals and communities standing in certain domains, rendering them vulnerable to domination.60 Stakeholders’ liberty, and their enjoyment of political and distributive justice, can therefore no longer be safeguarded fully by their own governments. They are now determined also by the decision-making processes of foreign entities, which, by means of arbitrary interferences, and without legitimate justification,61 often expropriate democratic control from the hands of stakeholders in whose name and interests dominated states act as corporate agents.62

In response to these trepidations, democratic theorists joined international lawyers in offering to extend to foreign decision-makers the communicative faculties that individuals generally enjoy as agents in relation to their own governments,63 thereby outlining a normative theory of what neo-republican notions of democracy may demand in vertical transnational contexts. In the absence of democratic stake through electoral control, these theories call for institutional frameworks that would enable stakeholders to generate political power by initiating deliberative exchanges with public decision-makers.64 This is in order to preserve the liberating and equity functions of the vertical political voice as a regulative ideal, and to mitigate the dominating potential of transnational relations of authority.65 By having the power to influence and shape polycentric decision-making, individuals and collectives could strive to guarantee that their lives are not altered by public decision-makers arbitrarily, and without proper discursive justification.66 The ability to partake in deliberative processes and shape their outcomes also invests individuals and communities with power to mitigate the broader distributive injustices that often result from the lack of bargaining power that normally plagues weaker constituencies.67

But what remains rather marginal in these accounts, like in those of international lawyers, is something important about the character and features of collectives that enable them to effectively mobilize vertically vis-à-vis public decision-makers in the first place.68 This something has to do with the horizontal dimension of the political voice and its educative and epistemic functions. As I discuss below, the efficiency of vertical exchanges between stakeholders and public decision-makers is to a large extent dependent on how cognizant individuals are of their own political interests, on how they understand them in relation to those of others, on how legitimate they perceive the interests of others to be, on how robustly they can establish or enact themselves as collectives or publics, and on how grounded and rich their conceptions are of their common goods. In other words, the vertical dimension of the political voice is deeply influenced by its horizontal one.

b) The horizontal dimension

Unlike the vertical dimension, the horizontal dimension focuses on discursive interactions between interlocutors themselves, serving two functions that are crucial for effective vertical exchanges. The educative function69 relates to the contribution of open, deliberative or agnostic, public discourse to individuals’ political intelligence: to their capacity to recognize their own political interests, passions, or identities and to understand these in relation to the interests, passions, and identities of others. These educative functions have been discussed at length both by John Stuart Mill and Hannah Arendt in their political philosophies,70 and were later reiterated by participatory theorists.71 In a somewhat different manner, they were also alluded to by Chantal Mouffe in her agonistic theory of politics.72 The second function, termed the epistemic, relates to the process of establishing reasoned arguments in favor of or against matters of public concern. On this account, most prominently put forward by deliberative theorists,73 robust discursive, public exchanges function as an “epistemic engine,”74 to yield outcomes that reflect the “common good”75 and are therefore democratically legitimate.76

At the crux of the first, educative argument stands a relational understanding of the political associations that democratic dialogue cultivates. This understanding emphasizes the significance of a deep appreciation of how one’s own interests relate to those of others for the possibility of appreciating multiple (and often conflicting) political associations, for understanding other interests as legitimate, and for developing various types of collective identities, visions of the public good, or forms of “conflictual consensus”77 that are, in turn, vital for collective action and acting in concert as much they are for contesting existing power structures and hegemonic conceptions of this public good.78 Public discursive exchanges, in this view, are a “procedure for becoming informed”;79 a process during which individuals share their divergent perspectives through persuasion, dissuasion,80 contestation, and confrontation,81 and through which they are thus able to detect, uncover, and express their political demands.82 Moreover, the participation in discursive exchanges has a critical revelatory quality in displaying the interests of fellow community members, and compelling interlocutors to “take into account wider matters than [their] own.”83 It also nurtures individuals’ ability to become sympathetic to general interests, and appreciative of the broad and profound implications of individual actions. It allows therefore for the transformation of self-interests into common ones.84 In other words, participation in public exchanges cultivates in individuals a better sense of their political attitudes, and possibly a sense of belonging to broader communities. It has the potential to strengthen the identities of stakeholders as members of communities,85 and to forge “public ends where there were none before.”86 Tellingly, Mill writes:

It belongs to a different occasion from the present to dwell on these things as part of national education; as being, in truth, the peculiar training of a citizen, the practical part of the political education of a free people, taking them out of the narrow circle of personal and family selfishness, and accustoming them to the comprehension of joint interests, the management of joint concerns—habituating them to act from public or semi-public motives, and guide their conduct by aims which unite instead of isolating them from one another.87

Somewhat distinctly, the second, epistemic argument centers on what is taken to be the “reasoned” character of the democratic deliberative process. Its virtues lie in participants’ application of “cognitive intelligence” to the moral questions at hand, in order to state reasons for and against policy proposals.88 The assumption of reasoned deliberation is grounded in the conviction that participants in the deliberative process are motivated to establish justifications that correspond to a “public view” of justice, considering that individual and idiosyncratic preferences are unlikely to be persuasive to others as claims for accepting or rejecting public policies.89 Therefore, “the interests, aims, and ideals that comprise the 'common good' are those that survive deliberation; interests that, on public reflection, we think it legitimate to appeal to in making claims on social resources.”90 The more inclusive public deliberation is, the more it maximizes the group’s “cognitive diversity,” and heightens the group’s probability to reach collectively intelligent decisions in a long series of choices.91 Hence, insofar as the deliberative process also meets certain procedural requirements such as being public and inclusive,92 unrestrained by prior norms,93 and governed by principles of equality and symmetry between participants,94 its epistemic potential could be capitalized on to democratically legitimize its outcomes.95

The normative purchase of horizontal practices of the political voice lies therefore in the roles that these practices assume in empowering stakeholders in developing vigorous understandings of their political preferences and passions in relations to those of others, and in the significance of these practices for community-building. These normative functions distinguish the notion of the political voice from related notions, such as “freedom of speech,” in shifting the center of gravity from the individual as a rights bearer to the individual as a stakeholder and community member. This theoretical construct thus foregrounds the following question: in relation to whom are political preferences and passions developed, and who constitutes the other relevant members and stakeholders with whom to build a community? For democratic theorists, the answer is mostly straightforward. The relevant community is the national community, where interlocutors are fellow citizens. Given how strongly tethered the notion of public discourse is in theories of democracy to a theory of government, the demarcation of the “public” in public discourse tends to correspond to the demarcation of the “legal public”96 constituted by the legal (or constitutional) framework of the nation-state. In other words, voice and vote go hand in hand.97

But in the same way that conditions of globalization have problematized the neat fit between decision-makers and affected stakeholders in the context of vertical political relationships, they have also muddled the paradigmatic alignments between the nation-state and the “public” to which the notion of “public discourse” attaches. Alongside legal publics, globalization also produces “normative publics,”98 to which the political voice as a normative principle should apply. Normative publics refer to those groups of individuals who do not necessarily share a common territory, language, history, or culture, but who are commonly subject to transnational threats, are commonly subject to the decision-making authority of governments and global governance institutions, and/or share common aspirations and trepidations. They are otherwise constituted by what Mill has referred to as an “identity of situation”99 among individuals within and across boundaries, and by the “interlinked interests”100 they share between them.

The political voice thus represents one aspect of the demands of democracy in these transnational horizontal contexts on account of its educative and epistemic functions. Through these practices, members of normative publics have more potential to ascertain their political interests in relation to globally relevant issues, and to shape these interests in relation to those of other constituents of these publics, even if through conflictual consensus.101 They allow stakeholders to develop political and social identities vis-à-vis one another and establish their interrelatedness. Opportunities for open, deliberative transboundary dialogue provide for more and more diverse occasions for experiencing the world in common,102 which in turn enable individuals to disclose their own disparate existential conditions and become exposed to those of others in light of their subjection to common threats or decisional externalities. In Arendtian terms, ensuring the transnational availability of the political voice “actualizes” power to ensure the endurance and continuity of political communities that defy national borders.103 The political voice also allows for the exchange of reasoned validity claims between transnational consociates that are commonly affected by diverse exercises of political power. These claims may correspond better to a transboundary view of justice, to lend greater legitimacy to public decisions that follow from transnational deliberative processes.

The nexus between the vertical and horizontal dimensions of the political voice and their functions now become clearer. The effective discursive participation in vertical relations of power and decision-making is largely dependent on stakeholders’ awareness of their political interests and of the strengthening of collective identities on the horizontal level through information exchanges and discursive practices. This nexus is captured through the notion of a “political voice matrix.” The imagery of a matrix implies the earmarking of the functions of the political voice within its two dimensions (as set on two perpendicular axes), while at the same time alluding to the ways in which these two dimensions intersect within one “structure” that represents the normative properties and thrust of the political voice.

But the metaphor of the matrix also serves another function in this article insofar as it corresponds, as I think it does, to the metaphor of the safety pin. In relating the vertical dimension of the political voice to its horizontal one, the link between the two conversations set at the outset of this article also becomes more apparent. This is because of the extent to which the availability and robustness of the horizontal political voice depends today on technological infrastructures, in particular the digital platforms owned and regulated by Big Tech. And, accordingly, because of how the affordances of these platforms impact opportunities for vertical democratization. I turn to this discussion next.

4. Big Tech and “political voice” deficits

The discussion thus far has set the stage for the following two related observations. First, opportunities for cross-boundary exchanges of information and communications are crucial in “our contemporary global condominium.”104 Second, the “social infrastructures”105 of digital platforms are central to this project as they have become a principal medium through which individuals impart and consume information and manage their social and political relations.106 If this is indeed the case, then digital platforms become an important unit of analysis for conversations about democratization beyond borders.

Digital platforms, however, do not exist in a regulatory void. Controlling them and determining their functionality are private Big Tech companies who perform important gatekeeping roles.107 The platforms themselves are therefore merely vessels, pipes, channels, or spaces, the patterns of use of which are highly dependent on the “ordered logic of space” according to which they are designed and regulated.108 In other words, what were meant to be open, public, transnational discursive spheres are controlled and mediated by private hands.109 As put by James Grimmelmann in writing specifically about Google: “Web search is critical to our ability to use the Internet. Whoever controls search engines has enormous influence on us all. . .. Whoever controls the search engines, perhaps, controls the Internet itself.”110 The same, perhaps, can be said today about social media platforms.

In order to think about the democratizing potential of digital platforms, one therefore has to take into account how information and communications are mediated on them. Any claim about this potential has to consider how Big Tech companies regulate exchanges on digital platforms and with what possible effects, and how these effects relate to the normative theory of discursive interactions one hopes would be facilitated on these platforms. As there is much that remains empirically unknown or undetermined today about the particularized operations of Big Tech companies and their precise societal effects, the discussion that follows refrains from making definitive empirical claims on these matters. Its aim, rather, is to point to some possible concerning outcomes that have been voiced around Big Tech’s political economy and monetizing structure, and to examine these claims and their potential implications through the lens of the political voice.

4.1. Big Tech’s political economy of personalization

The flow of information and communications on digital platforms is mediated by algorithms.111 While the precise workings of these systems are often black-boxed, they are generally powered by a commercial model predicated on the personalization of information and communications.112 This advertising-based commercial model involves the transaction of free communications for users in return for their data,113 which is then capitalized on by Big Tech in selling it onwards in the internet market to advertisers.114 According to the operational logic of this model, the more users are engaged on digital platforms, the more data Big Tech companies collect from every click, thereby boasting their inflow of capital. Hence, revenues from advertising largely depend on the ability of Big Tech to attract users’ attention by customizing and personalizing information and communications, tailoring them to users’ particular tendencies, interests, and desires.115 In the words of Eli Pariser, “[a]s a business strategy, the Internet giants’ formula is simple: The more personally relevant their information offerings are, the more ads they can sell and the more likely you are to buy the products they are offering.”116 Through personalization, Big Tech companies therefore do much more than regulate the content available on digital platforms.117 They also, more fundamentally and importantly, orchestrate the information available or visible to users, and mediate their communicative interactions in particular infrastructural ways.

One dominant concern that has been voiced around the effects of personalization has to do with the extent to which it encourages the fragmentation of information and communications.118 These effects have been referred to by others as the creation of “filter bubbles,”119 “echo chambers,” “gated communities,” “information cocoons,”120 or “ideological bunkers”121—terms that all express the notion of siloed communicative spaces in which individuals are mostly exposed to certain information, and are likely to encounter and communicate mainly with their concurring counterparts. The concern is that because of how digital platforms personalize both the information and the individuals or groups that are most visible to users, they cultivate “homophilic” interactions and exchanges rather than being a “space of appearances”122 with the potential to maximize exposure to heterogenous publics, countering views, and diverse ideologies or topics.123 Moreover, personalization is also thought to render information susceptible to market failures, and to generate unduly burdens on individuals to evaluate the quality, credibility, and accuracy of the information they encounter.124 If users are mostly exposed to a fixed set of facts about the world, they are more likely to remain prejudiced in favor of what they already presume is representative of reality, and to spread the information that supports their views regardless of how credible it is with little prospect of correcting false information.125

Importantly, the worry is that these patterns of information consumption and communication do not end in the online realm. If algorithmic personalization regulates the information that users come across on online dating sites, or in relation to venues for dining, socializing, shopping, and visiting, then recommendation algorithms are likely to be determinative also of individuals’ use of physical spaces and of the people that they are likely to meet and interact with in material encounters in the offline realm.126 This projected impact on the “offline” environment also extends to the ways in which traditional media produces content and information. Under the pressure of the capacious influence that digital platforms exert on individuals’ access to news, traditional news outlets have also been pressured to reconfigure “their own organizational practices” to fit the logic of Big Tech’s algorithms so that they can remain viable in terms of the “traffic” they receive.127 News media organizations have therefore begun to use metrics to learn about their audiences in order to personalize the delivery of news and information. They have developed an “algorithmic understanding of democratic processes” in which individuals’ specific needs and desires are evaluated for the purpose of content distribution.128

Private Big Tech companies thus perform regulatory functions of a public quality. They assume a significant role in forming decision rules about who can participate in which discursive arena and about how this “who” is determined.129 Due to their global reach, these companies are in a position to shape—perhaps opaquely—“the rights, interests, and expectations of diverse stakeholders across political boundaries”130 in a non-formal fashion. This type of regulatory power has been duly theorized by political scientists as a mode of “new” governance, in which private entities employ mechanisms of social control that are not necessarily a product of state activity or formal legal rules.131 In the specific context of Big Tech, this social control is operationalized technologically, to determine what individuals can or cannot do with important societal implications,132 thus lending technology a political quality.133 From the perspective of the political voice, this political quality should be taken seriously.

4.2. A global “political voice deficit matrix”

The possibility of the fragmentation of information, knowledge, and communicative spaces into siloes of mostly homogenous discursive spheres threatens to diminishes users’ access to open, heterogenous, deliberative venues in which they can meaningfully partake in public exchanges with indefinite others. Personalization therefore has the potential to critically hamper the horizontal dimension of the political voice and its educative and epistemic functions, and to create global horizontal political voice deficits. Due to the interrelatedness of the horizontal and vertical dimensions of the political voice, personalization may also aggravate vertical political voice deficits and impact the liberating and equity functions of this democratic ideal. Big Tech may contribute therefore to a global “political voice deficit matrix.”

By “horizontal political voice deficits” I mean the hampering of individuals’ ability to receive relevant information and partake in open, deliberative and agonistic, public exchanges with other affected stakeholders, within both legal and normative publics. The theory of the political voice prescribes the possible effects of the thwarting of these exchanges as bearing on the potential of individuals to develop their own intellectual faculties required for participation in public life both domestically and transnationally. It bears on individuals’ potential to understand their interests in relation to those of others, to develop sentiments of community consciousness, and to recognize the “political other” as an adversary with whom it is possible to engage in agonistic confrontation, rather than as an enemy. Fragmentation may thwart, therefore, the transformation of their self-interests into common ones, thus impeding individuals from operating as a community to the advancement of their interests vis-à-vis local and foreign decision-makers.134 This is because, within “homophilic” interactions, users are less likely to encounter the perspectives of differing others, and therefore less likely to come to understand them better in relation to one’s own, to come to terms with them, become sympathetic of them, or at least learn to view them as legitimate. The smaller and more single-minded a sphere of interlocutors is, the less likely are individuals to have opportunities to form and develop shared experiences with differing others, thus narrowing one’s perception of the boundaries of her community and restricting the sense of what public interests or common goods demand. If personalization reintroduces users with pre-recognizable facts and ideas, habits of curiosity and enquiry are potentially impeded too.

The fragmentation of information pools also has the potential to stifle the epistemic process of collective political decision-making at the horizontal level. To begin with, if information encountered online is all too often unreliable, inaccurate, or deceiving, then individuals are likely to develop distorted views that undermine the deliberative process. The “TikTok wars” in the context of Russia’s invasion of Ukraine, or the spread of false information during the Covid-19 pandemic, are but two examples of this predicament.135 According to the epistemic argument, when individuals' preferences are formed and informed by encounters with false or partial information, they cannot apply the cognitive intelligence required for the process of deliberation to epistemically succeed. These outcomes are likely to be further aggravated by the “visibility regime” that characterizes social media platforms in particular, that is underpinned by the organizing principles of “connectivity” and “popularity.”136 These principles promote the visibility of certain opinions, facts, and ideologies, in disconnection with their coherence, logic, or rationality.137

Furthermore, fragmentation’s hindering of open and public exchanges between stakeholders of diverse perspectives may impede the process in which individuals defend their opinions by reference to justifications that cater to the common good. As a result, communities of affected stakeholders (or normative publics), and particularly those from diverse backgrounds, have less means by which to capitalize on information as a public good and develop public views of justice. Fragmentation of communicative spheres is also thought to considerably limit the cognitive diversity of discursive publics, thereby impeding effective collective problem-solving. While the effects of these outcomes for decision-making within national communities may be damaging enough, they are likely to be even more destructive for processes of transnational collective decision-making. In these contexts, exchanges of reasoned validity-claims between globally dispersed stakeholders are of particular significance given the inherent complexity that characterizes collective decision-making in these settings. The fragmentation of communicative spheres may considerably exacerbate these intrinsic difficulties by obstructing one tool that can be employed to overcome them—the meaningful, transboundary, cross-cultural horizontal public discursive exchanges that could help shape, over time, common views of transnational collective interests.

Given the transnational reach of digital platforms (as one of their defining constitutive features), these horizontal deficits potentially transpire globally. The very promise of Internet infrastructures to facilitate the transnational connections that are now desired between dispersed stakeholders in order to establish their interrelatedness and strengthen cross-boundary community sentiments is therefore possibly frustrated by the gatekeeping functions of Big Tech. Importantly, these horizontal deficits are also likely to have implications for the vertical dimension of the political voice. The theory of the political voice links the impediments to its educative and epistemic functions to individuals’ and collectives’ ability to vertically communicate their political interests vis-à-vis public decision-makers, and ensure they are considered. Horizontal political voice deficits thus risk aggravating instances of “substantive disregard” in vertical relations of power, i.e., the “adoption of decisions that unjustifiably harm or disadvantage those whose interests and concerns have been procedurally disregarded, where decisions have been adopted as a consequence of such disregard.”138 These deficits, too, are not limited to national settings but are notably a feature of global governance regimes.139

Any intensification of vertical deficits would bear on the liberating and equity functions of the political voice and on the opportunities that it presents for forms of democratic control within and beyond boundaries. Vertical political voice deficits pose a risk to stakeholders’ ability to direct their influence on public decision-makers toward decisions that are equally acceptable, and to defend their positions and interests on the basis of convergent considerations that are relevant to those affected. In the global context, the obstruction of open dialogue between heterogenous members of normative publics may hinder these members from developing a currency of common reasons, and from acquiring the normative powers necessary to shape decision-making of foreign or global political institutions. These outcomes create opportunities for domination and the imposition of constraints on individual freedom and on political and distributive justice.

The perceived ails of personalization as the regulatory principle of digital platforms thus risk contributing to or aggravating a global “political voice deficit matrix” which consists of horizontal and vertical deficits propagated by private, as well as public, institutions. Such a matrix undermines avenues for democratization both within and beyond the state.

5. Conclusion: The payoffs of alchemy

The lens of the political voice foregrounds the intimate link that exists between questions on the relationship between technology and democracy, and those on the relationship between democracy and globalization. It offers a normative theory of one feature that democracy may demand in cross-boundary contexts, and sheds light on the importance of digital technologies for these possibilities of democratization beyond the state. Importantly, it draws attention to the vital role that private Big Tech companies assume in governing transnational discursive spheres, and frames the challenges associated with this role as closely related to, or as exacerbating, the ills of global governance.

The global “political voice deficit matrix” is offered as a frame that represents these various linkages. I find this frame compelling insofar as the image that it conjures is that of a cartographical system of latitude and longitude lines layered on top of the world map of states. This image symbolizes the transnational reach of political voice deficits, which corresponds to the transnational reach of digital platforms. It nods also to other exigencies of globalization, namely the transnationalization of publics and the transnationalization of relations of power and patterns of influence and authority.

This emphasis I have placed here on the role of private actors does not detract from the role of states in securing or hampering avenues for democratization within and across boundaries. But that states too may indeed pose challenges to how information flows and to how individuals and communities interact discursively does not imply that we should endorse wholesale the present configuration of digital platforms. In fact, the focus of this article on Big Tech draws attention to what might be a significant role for states in imposing some kind of regulatory constraints on these companies to mitigate political voice deficits and democratic harm.140 That role, however, is a matter for a separate discussion.

Footnotes

*

Massada Junior Research Fellow, Worcester College, University of Oxford and Early-Career Fellow, Bonavero Institute of Human Rights, University of Oxford, Oxford, United Kingdom. Email: [email protected]. The ideas featured in this article were developed during my doctoral studies at the University of Cambridge and my Postdoctoral Fellowship in the Hauser Global Fellows Program at New York University School of Law. I would like to thank Eyal Benvenisti, Andrew Sanger, and Oren Tamir for their attentive reading and helpful comments on the various iterations of this article. All errors remain my own.

1

Tanya Barson, Cildo Mereiles, Babel 2001 (May 2011), www.tate.org.uk/art/artworks/meireles-babel-t14041.

2

Moacir dos Anjos, Where All Places Are, inCildo Meireles 170, 172 (Guy Brett ed., 2008).

3

See Jan Klabbers et al., International Law and Democracy Revisited: Introduction to the Symposium, 32 Eur. J. Int’l L. 9 (2021).

4

I employ the term Big Tech to refer to companies in the information and communications market (i) that own the main digital platforms through which users communicate online, receive and impart information; and (ii) whose monetizing structure is advertising based and therefore underpinned by practices of “personalization,” or in other words by the need to effectively match users to users and users to content (see infra Section 4). These include, most notably: search engines (like Alphabet/Google or Bing) and social media companies (like Meta/Facebook (and Instagram), Twitter, or TikTok).

5

Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom 10 (2006).

6

For a comprehensive genealogy of conversations of platform regulation in light of ideas of freedom, law, and power, see Elettra Bietti, The Genealogy of Platform Regulation, 7 Geo. L. Tech. Rev. 1 (2022).

7

See, e.g., David R. Johnson & David Post, Law and Borders: The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).

8

Id. The difference between these views has to do with the role assumed by governments in regulating the Internet. As Bietti insightfully lays bare, anarcho-libertarianism ascribed the Internet its democratizing potential precisely on account of its perception as a government-free zone. The liberal approach, by contrast, views government regulation of the internet as necessary for individual freedoms to exist. See Bietti, supra note 6.

9

See, e.g., Digital Technology and Democratic Theory (Lucy Bernholz, Hélène Landemore, & Rob Reich, eds. 2021).

10

In the words of Johnson and Post, digital communications “cut across territorial borders, creating a new realm of human activity”: Johnson and Post, supra note 7 at 1367. They change “the social conditions of speech”: Jack Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. Rev. 1, 2 (2004). The Internet has therefore been referred to as the “technological basis for the organizational form of the Information Age: the network”: Manuel Castells, The Internet Galaxy: Reflections on the Internet, Business, and Society 1 (2002).

11

José Marichal, Facebook Democracy: The Architecture of Disclosure and the Threat to Public Life (2016). See alsoCastells, supra note 10, at 2 (“The Internet is a communication medium that allows, for the first time, the communication of many to many, in a chosen time, on a global scale”); Reno v. Am. Civil Liberties Union, 521 U.S. 844, 850 (1997).

12

Castells, supra note 10, at 3:

The influence of Internet-based networking goes beyond the number of users: it is also the quality of use. Core economic, social, political and cultural activities throughout the planet are being structured by and around the Internet, and other computer networks. In fact, exclusion for these networks is one of the most damaging forms of exclusion in our economy and in our culture.

This latter point alludes to important questions about global inequalities in access to data, information, and communications which are out of the scope of this article. For a discussion on data inequality, see, e.g., Angelina Fisher & Thomas Streinz, Confronting Data Inequality, 60 Colum. J. Transnat’l L. 829 (2022).

13

Perhaps because, as some scholars note, “The institutions for the realization of democracy are national in scope, but communication industries and information flows have become increasingly transnational”: Milton L. Mueller, Brenden N. Kuerbis, & Christiane Pagé, Democratizing Global Communication? Global Civil Society and the Campaign for Communication Rights in the Information Society, 1 Int’l J. Comm. 267 (2007).

14

Balkin, for example, summarizes this point in a footnote that mentions that lowering distribution costs allows people to communicate and share information across boundaries, and enables new communities to form on the basis of existing interests. See Balkin, supra note 10, at 8 n.8. Similarly, Castells alludes to the significance of the Internet as a global medium (see quote of Castells, supra note 10) and has a chapter dedicated to “The Politics of the Internet” (id. ch. 5), but he too does not provide a theory of what democracy requires in this global context.

15

Armin von Bogdandy, Globalization and Europe: How to Square Democracy, Globalization and International Law, 15 Eur. J. Int’l L. 885 (2004).

16

See id. at 886 (providing “a stocktaking from a European perspective (with a German bias) of influential scholarly positions” on the relationship between globalization and democracy). See also Symposium, International Law and Democracy Revisited, 32 Eur. J. Int’l L. 9 (2021).

17

See Tsilly Dagan & Talya Fisher, State Inc., 27 Cornell J. L. & Pub. Pol’y 661 (2018) (coining the term, they named this “citizenship à la carte”).

18

Or as Kofi Annan has termed them: “problems without passports”: Kofi A. Annan, Problems without Passports, Foreign Policy (Nov 9, 2009).

19

See von Bogdandy, supra note 15, at 888 (“The term globalization indicates developments which might undermine this symbiosis,” referring to the symbiosis between democracy and the nation-state).

20

Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology 3 (2003). Accordingly, these misalignments have demanded a recharting of many traditional understandings of concepts that are closely related to the comprehensive notion of democracy. See, e.g., Dagan & Fisher, supra note 17, at 669 (on the democratic and consumerist models of the political community); Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (2004) (examining the notions of political membership and the boundaries of political community in light of the fraying of state sovereignty); Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (2008) (introducing a “political” dimension to justice, which envisions a “post-Westphalian” mapping of political space); Eyal Benvenisti, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders, 107 Am. J. Int’l L. 295 (2013) (on sovereignty).

21

Marks, supra note 20, at 3 (emphasis added). These trends have also been described in the context of changes in the international legal system and its incorporation of novel layers of governance. See J.H.H. Weiler, The Geology of International Law: Governance, Democracy and Legitimacy, 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 547 (2004); Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, 15 Eur. J. Int’l L. 907 (2004).

22

Richard B. Stewart, Remedying Disregard in Global Regulatory Governance: Accountability, Participation, and Responsiveness, 108 Am. J. Int’l L. (2014). See also Benvenisti, supra note 20 (examining stakeholders’ entitlement to voice in the decision-making processes of foreign decision-makers); Benedict Kingsbury, Megan Donaldson, & Rodrigo Vallejo, Global Administrative Law and Deliberative Democracy, inThe Oxford Handbook of the Theory of International Law 526, 542 (Anne Orford & Florian Hoffman eds., 2016); and on global administrative law more generally, e.g., Benedict Kingsbury, Richard B. Stewart, & Nico Krisch, The Emergence of Global Administrative Law, 68 Law & Contemp. Prob. 15 (2005).

23

The literature concerned with these democratic deficits can broadly be categorized as focusing on one of three phenomena: (i) the “intra-state” dimension, concerned with the effects of international law’s laissez-faire framework on domestic politics and on the ability of weaker stakeholders to further their interests through participation in domestic political decision-making: see, e.g., Eyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167 (1999); (ii) the “inter-state” dimension, concerned with the cross-boundary effects of government decision-making on foreign stakeholders, and the latter’s inability to dyadically participate in foreign decision-making: see, e.g., Eyal Benvenisti, Ensuring Access to Information: International Law’s Contribution to Global Justice (GlobalTrust Working Paper No. 09, 2017), Mattias Kumm, The Cosmopolitan Turn in Constitutionalism: An Integrated Conception of Public Law, 20 Ind. J. Global Legal Stud. 605 (2013); and (iii) the “global” dimension, concerned with the effects of transfers of political authority from the state to global institutions on the interests of weaker individuals and constituencies: see, e.g., Kingsbury, Stewart, & Krisch, supra note 22; Eyal Benvenisti, The Law of Global Governance (2014); Robert Howse, Democracy, Science and Free Trade: Risk Regulation on Trial at the World Trade Organization, 98 Mich. L. Rev. 2329 (2000).

24

See contraDaniel Joyce, Informed Publics, Media, and International Law (2020) (discussing the significance of “informed global publics” from an international legal perspective).

25

See Benedict Kingsbury & Nahuel Maisely, Infrastructures and Laws: Publics and Publicness, 2021 Ann. Rev. L. Soc. Sci. 353 (moving beyond the tight fit between publics and nation-states to theorize the relationship between infrastructures—such as the communicative infrastructures discussed here—and their publics).

26

An Indian folk tale about a group of blind men who imagine what an elephant is by touching it. Each describes the elephant based only on the specific part of its body that he touches, resulting in very different descriptions of what an elephant is. I thank my colleague Oren Tamir for this point.

27

Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States 30 (1970).

28

See id. at 16.

29

SeeAnnemarie Mol, The Body Multiple: Ontology in Medical Practice 5 (2002). I thank my colleague Laura Mai for drawing my attention to this point.

30

Donald W. Keim, Participation in Contemporary Democratic Theories, 16 Nomos 1, 1 (1975). Broadly speaking then, theories of democracy may be pigeonholed according to how thinly or thickly they conceptualize the notion of political participation. See, e.g., Ian Shapiro, The State of Democratic Theory (2003); Carlos Santiago Nino, The Constitution of Deliberative Democracy (1996).

31

The liberal tradition itself is, of course, a complex one, and includes various strands. For an analysis of this tradition of thought, see, e.g., Jason Brennan & John Tomasi, Classic Liberalism, inThe Oxford Handbook of Political Philosophy 115 (David Estlund ed., 2015); Frank Cunningham, Theories of Democracy: A Critical Introduction (2002).

32

David Elster, The Market and the Forum: Three Varieties of Political Theory, inDeliberative Democracy: Essays on Reason and Politics 3 (James Bohman & William Rehg eds., 1997).

33

Iseult Honohan, Liberal and Republican Conceptions of Citizenship, inThe Oxford Handbook of Citizenship 87 (Ayelet Shachar et al. eds., 2017); Shapiro, supra note 30, at 3; Nino includes in this group what he terms utilitarian approaches, economic conceptions of democracy, elitist theories, and pluralist theories. SeeNino, supra note 30, at 68. A similar conception of the theories this group includes can be found in Deliberative Democracy: Essays on Reason and Politics,supra note 32.

34

Isaiah Berlin, Two Concepts of Liberty, inFour Essays on Liberty (1969).

35

Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy 4, 25–6 (1996). See also Honohan, supra note 33, at 87 (emphasizing that this interpretation of freedom can either be a “negative” one, associating freedom with “non-interference,” or a “positive” one, understanding freedom as autonomy); Berlin, supra note 34, at 118 (drawing a distinction between “positive” and “negative” liberty).

36

Frank Cunningham, Theories of Democracy: A Critical Perspective 123 (2002) (emphasis added).

37

Berlin,supra note 34, at 22.

38

von Bogdandy, supra note 15, at 887.

39

Hannah Arendt too, it should be mentioned, placed a strong emphasis on the relationship between freedom and public discourse, offering an understanding of freedom in public terms as manifest in individuals’ ability to shift between multiple viewpoints held by plural people in the public space between them. SeeMargaret Canovan, Hannah Arendt: A Reinterpretation of Her Political Thought 212 (2009).

40

Frank Lovett, Republicanism, The Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., 2022), https://plato.stanford.edu/archives/fall2022/entries/republicanism/; Samantha Besson & José L. Martí, Law and Republicanism: Mapping the Issues, inLegal Republicanism: National and International Perspectives 3, 3–4 (Samantha Besson & José L. Martí eds., 2009).

41

Andreas Niederberger & Philipp Schink, Introduction to Republican Democracy: Liberty, Law and Politics 1 (Andreas Niederberger & Philipp Schink eds., 2013). Others disagree with this characterization of the purpose of reassessing the republican contribution to political theory, calling for an evaluation of republican ideas in their own terms. See, e.g., Cécile Laborde & John W. Maynor, The Republican Contribution to Contemporary Political Theory, inRepublicanism and Political Theory 1, 1–2 (Cécile Laborde & John W. Maynor eds., 2008). For an intellectual historical account of this revival, see Cécile Laborde, Republicanism, inThe Oxford Handbook of Political Ideologies 513 (Michael Freeden & Mark Stears eds., 2013).

42

Philip Pettit, Republicanism: A Theory of Freedom and Government 69 (1999).

43

See id. at 52. Pettit further clarifies that contrary to a Hobbesian approach, hindrance of any option—whether one’s preferred or unpreferred—is a reduction of one’s freedom in a choice. SeePhilip Pettit, On the People’s Terms: A Republic Theory and Model of Democracy 26–33 (2012). In a different neo-republican account, Lovett defines domination as “a condition experienced by persons or groups to the extent that they are dependent on a social relationship in which some other person or group wields arbitrary power over them”: Frank Lovett, A General Theory of Domination and Justice 2 (2010).

44

Pettit, supra note 42, at 50, 57. See also Philip Pettit, Three Mistakes about Democracy, 2 Cilicia J. Philo. 1, 3 (2015). See alsoMaurizio Viroli, Republicanism 10, 35–8 (Antony Shugaar trans., Hill and Wang 2002). It is separation between domination and interference that enables viewing coercive law as consistent with freedom, thereby highlighting the significant role of the state in guaranteeing freedom rather than endangering it. For a focus on the relationship between law and freedom, see Philip Pettit, Law and Liberty, inLegal Republicanism: National and International Perspectives, supra note 40, at 39.

45

“Unconditioned” means that it is foregrounded in society’s potential for robust resistance rather than in the goodwill of governments to go along: Pettit, supra note 42, at 172–4.

46

See id. at 175–7.

47

See id. at 216. Pettit rejects some of what he refers to as the “romantic” notions of participatory and deliberative democrats of the people all coming together in “a grand, will-forming, lawmaking exercise,” preferring the promotion of a contestatory model through which civic vigilance is exercised through more specialized, public-interest bodies such as NGOs: See id. at 226–7.

48

By convergent considerations, Pettit means those which “point participants to universal benefits that all take to be relevant,” whereas concordant considerations are those which “point the participants. . . to benefits that accrue only to this or that individual or subgroup” but that “command a following on all sides to the extent that everyone accepts that it is a matter of convergent interest that the group as a whole should confer that benefit on the sort of individual or subgroup favoured”: id. at 256.

49

Rainer Forst, A Kantian Republican Conception of Justice as Nondomination, inRepublican Democracy: Liberty, Law and Politics, supra note 41, at 157.

50

See id. at 163.

51

Id.

52

Cf.John Stuart Mill, Considerations on Representative Government 166 (Cambridge Univ. Press 2011) (1861) (“Independently of all these considerations, it is a personal injustice to withhold from any one, unless for the prevention of greater evils, the ordinary privilege of having his voice reckoned in the disposal of affairs in which he has the same interest as other people”).

53

Id.

54

Thomas Christiano, The Rule of the Many 59 (1996).

55

Thomas Christiano, The Significance of Public Deliberation, inDeliberative Democracy: Essays on Reason and Politics, supra note 32, at 24.

56

Peter Bachrach, Interest, Participation, and Democratic Theory, 16 Nomos 41, 46, 52 (1975).

57

SeeBenvenisti, The Law of Global Governance,supra note 23. See also Stewart, supra note 22.

58

Barbara Buckinx, Jonathan Trejo-Mathys, & Timothy Waligore, Domination Across Borders: An Introduction, inDomination and Global Political Justice: Conceptual, Historical and Institutional Perspectives 1, 6–7 (Barbara Buckinx, Jonathan Trejo-Mathys, & Timothy Waligore eds., 2015).

59

Philip Pettit, A Republican Law of Peoples, 9 Eur. J. Pol. Theory 70 (2010).

60

James Bohman, Domination, Global Harms, and the Priority of Injustice: Expanding Transnational Republicanism, inDomination and Global Political Justice: Conceptual, Historical and Institutional Perspectives, supra note 58, at 76.

61

Rainer Forst, Transnational Justice and Non-Domination: A Discourse-Theoretical Approach, inDomination and Global Political Justice: Conceptual, Historical and Institutional Perspectives, supra note 58, at 88.

62

Pettit further qualifies this analysis by differentiating between what he terms effective and representative states as opposed to non-effective and non-representative ones, concentrating on the former as the objects of his international theory. Effective and representative states are those which succeed in protecting their members against both private and public domination and are thus worthy of being safeguarded from alien domination by foreign states. Given that non-representative states engage in the domination of their own citizens, alien domination might actually be considered an effective means to guarantee the freedom of these states’ citizens. Pettit, supra note 59.

63

Bohman, supra note 60, at 76, 84–5; James Bohman, Nondomination and Transnational Democracy, inRepublicanism and Political Theory, supra note 41, at 190, 202–5.

64

Bohman, supra note 63, at 207–8.

65

See the idea of voice as a regulative ideal, supra note 22. See alsoFraser, supra note 20, at 15 (arguing that the political dimension of justice is born out of globalization in the sense that globalization has altered “the grammar of the argument” about justice).

66

Forst, supra note 61.

67

Cécile Laborde, Republicanism and Global Justice: A Sketch, 9 Eur. J. Pol. Theory 48 (2010).

68

James Bohman, Democracy Across Borders: From Dêmos to Dêmoi (2007) (taking the question seriously).

69

For the use of this term, see Carol Pateman, Participation and Democratic Theory (1970).

70

Although considered by most scholars a central pillar of the liberal tradition, Mill endorses substantial civic components in his political philosophy that underscore the utilitarian and intrinsic values of public discourse. The account I offer draws on some of Mill’s canonical writings as well as on others who have interpreted the civic elements of his political philosophy: Mill, Considerations on Representative Government, supra note 52; John Stuart Mill, On Liberty (William L. Courtney intro., The Walter Scott Publishing Co. 1901) (1859); D.E. Miller, John Stuart Mill’s Civic Liberalism, 21 Hist. Pol. Thought 88 (2000); Stewart Justman, The Hidden Text of Mill’s Liberty (1991); Richard W. Krouse, Two Concepts of Democratic Representation: James and John Stuart Mill, 44 J. Pol. 509 (1982); Dennis Frank Thompson, John Stuart Mill and Representative Government (1976); James Gouinlock, Excellence in Public Discourse: John Stuart Mill, John Dewey, and Social Intelligence (1986); Bruce Baum, Freedom, Power and Public Opinion: J.S. Mill on the Public Sphere, 22 Hist. Pol. Thought 501, 504 (2001). Hannah Arendt’s political philosophy has equally been considered a significant landmark in the development of participatory and deliberative theories, despite the controversial quality of her thinking. Here too I draw on Arendt’s own writing as well as on others who reflect on her political thought: Hannah Arendt, The Human Condition (1958); Hannah Arendt, Lectures on Kant’s Political Philosophy (Beiner Ronald ed., 1982); Hannah Arendt, Between Past and Future: Six Exercises in Political Thought (1961); Canovan,supra note 39; Hannah Arendt: The Recovery of the Public World (Melvyn A. Hill ed., 1979); Seyla Benhabib, The Reluctant Modernism of Hannah Arendt (2003); John McGowan, Hannah Arendt: An Introduction (1998).

71

Participatory democratic theory that peaked in the 1960s and 1970s “set itself. . . against all versions of liberal democracy that see active politics as the domain of government and. . . interest group leaders”: Cunningham, supra note 36, at 123. I draw here on the work of Arnold Kaufman, Human Nature and Participatory Democracy, 3 Nomos 266 (1960); Pateman, supra note 69; Gabriel A. Almond and Sidney Verba, The Civic Culture: Political Attitudes and Democracy in Five Nations (1963); Jane J. Mansbridge, Beyond Adversary Democracy (1980); Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (1984); Peter Bachrach, The Theory of Democratic Elitism: A Critique (1969).

72

Chantal Mouffe, On the Political (2005) (placing her theory in opposition to some of the deliberative theories I draw on, but I offer to read them as capable of residing side by side).

73

See, e.g., Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans., Polity Press 1996); Hélène Landemore, Democratic Reason: Politics, Collective Intelligence and the Rule of the Many (2012); David Estlund & Hélène Landemore, The Epistemic Value of Democratic Deliberation, inThe Oxford Handbook of Deliberative Democracy 113 (Andre Bächtinger et al. eds., 2018); David Estlund, Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority, inDeliberative Democracy: Essays on Reason and Politics,supra note 32, at 173; Joshua Cohen, Philosophy, Politics, Democracy: Selected Essays (2009); Joshua Cohen, An Epistemic Conception of Democracy, 97 Ethics 26 (1986) [hereinafter Cohen, Epistemic Conception]; Robert Talisse, Deliberation, inThe Oxford Handbook of Political Philosophy, supra note 31, at 204.

74

Estlund & Landemore, supra note 73, at 114.

75

This notion was expressed also by Mill in his second chapter in On Liberty when speaking of political “truths”: “But the peculiar evil of silencing an expression of an opinion is, that it is robbing the human race;. . . If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.” Mill,supra note 70, at 63. The concept of the “common good” is referred to by Cohen also as the “general will.” Cohen, Epistemic Conception, supra note 73, at 26. According to Habermas, the only norms that would count as valid are those which have been accepted, through the process of public deliberation in which all partake on equal footing, by all those participating. Given that this process is inherently oriented towards reaching mutual understandings, the outcome is necessarily epistemically correct. Habermas,supra note 73, at 127.

76

Estlund & Landemore, supra note 73, at 113.

77

Mouffe, supra note 72.

78

According to Mill, political participation in public discourse was conducive, above all other activities, to the enhancement of habits of curiosity and enquiry that establish the intellectual and moral qualities required for participation in public life and for the development of the active political character which he idealized as most beneficial to the advancement of a political community: Mill, Considerations on Representative Government,supra note 52, at 55–7. According to Bruce Baum, “[i]n Mill’s view. . . political freedom is not a matter of each citizen’s simply pursuing a political will that is already formed before she or he participates in collective deliberations. It involves citizens sharing in processes of deliberation and will formation.” Baum, supra note 70, at 504. See alsoThompson,supra note 70 at 37; Gouinlock,supra note 70, at 12, 17; Justman,supra note 70, at 60. Echoing Mill, Arendt also emphasized the contribution of participation in public discourse to both individual identity-building and to one’s exposure to a “reality,” as she termed, that informs one’s perception of the world. Arendt, The Human Condition,supra note 70, at 50–8, 178–9, 208–9.

79

Bernard Manin, On Legitimacy and Political Deliberation, 15 Pol. Theory 338, 349 (1987).

80

Arendt, The Human Condition,supra note 70, at 50–8; Canovan,supra note 39, at 111. See also George Kateb, Political Action: Its Nature and Advantages, inThe Cambridge Companion to Hannah Arendt 130, 132–3 (Dana Villa ed., 2000).

81

Mouffe, supra note 72.

82

Bachrach, supra note 56, at 41.

83

Pateman, supra note 69, at 25. See also Mill, Considerations on Representative Government, supra note 52, at 105:

I know not how a representative assembly can more usefully employ itself than in talk. . . . A place where every interest and shade of opinion in the country can have its cause even passionately pleaded, in the face of the government and of all other interests and opinions, can compel them to listen, . . . is in itself, if it answered no other purpose, one of the most important political institutions that can exist anywhere.

84

Mill,supra note 52, at 165:

It is by political discussion that the manual labourer, whose employment is a routine. . . is taught that remote causes, and events which take place far off, have a most sensible effect even on his personal interests; and it is from political discussion, and collective political action, that one whose daily occupations concentrate his interests in a small circle round himself, learns to feel for and with his fellow-citizens becomes consciously a member of a great community.

Arendt referred to this notion (in translating Kant), as an “enlarged thought”—the ability to reflect on things “from a general standpoint”: Hannah Arendt, Lectures on Kant’s Political Philosophy 71 (Ronald Beiner ed., 1982), quoting Immanuel Kant, Critique of Judgement § 40 (J.H. Bernard, trans., Hafner 1951). See also Seyla Benhabib, The Embattled Public Sphere: Hannah Arendt, Juergen Habermas and Beyond, 90 Theoria 1, 6 (1997); Dana R. Villa, Postmodernism and the Public Sphere, 86 Am. Pol. Sci. Rev. 712, 714 (1992).

85

Thompson,supra note 70, at 17, 38. See also Doreen Lustig & Eyal Benvenisti, The Multinational Corporation as “the Good Despot”: The Democratic Costs of Privatization in Global Settings, 15 Theoretical Inquiries in L. 125, 136 (2014).

86

Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age 152 (1984); Pateman, supra note 69, at 27 (naming this the “integrative function” of participation).

87

Mill,supra note 70, at 279.

88

Joshua Cohen, Deliberation and Democratic Legitimacy, inDeliberative Democracy: Essays on Reason and Politics,supra note 32, at 74; Estlund, supra note 73, at 196. See also Talisse, supra note 73, at 209.

89

SeeHabermas, supra note 75, at 119:

Communicatively acting subjects commit themselves to coordinating their action plans on the basis of a consensus that depends in turn on their reciprocally taking positions on, and intersubjectively recognizing, validity claims. From this it follows that only those reasons count that all the participating parties together find acceptable. It is in each case the same kinds of reasons that have a rationally motivating force for those involved in communicative action.

Mill made a similar point in On Liberty, where he emphasized that in the context of public deliberation one is constantly compelled to defend one's opinions and refute those of others. Mill,supra note 70, at 103.

90

Cohen, supra note 88, at 77 (emphasis added). See also Jürgen Habermas, Reply to Symposium Participants, Benhamin N. Cardozo School of Law, 17 Cardozo L. Rev. 1477, 1494 (1995) (stating that properly institutionalized decision-making can “justify the presumption that outcomes conforming to the procedure are rational”).

91

Landemore,supra note 73, at 104.

92

See id. See also Estlund & Landemore, supra note 73, at 122.

93

Cohen, supra note 88, at 74.

94

Habermas, supra note 75, at 110; Cohen, supra note 88, at 74–5; Seyla Benhabib, Toward a Deliberative Model of Democratic Legitimacy, inDemocracy and Difference: Contesting the Boundaries of the Political 70 (Seyla Benhabib ed., 1996); Estlund & Landemore, supra note 73, at 122.

95

James Bohman & William Rehg, Introduction to Deliberative Democracy: Essays on Reason and Politics,supra note 32, at ix, ix. See alsoHabermas, supra note 75, at 104 (“the legitimacy of law ultimately depends on a communicative arrangement: as participants in rational discourses, consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possibly affected.” Habermas articulates this idea in his principle (D): “Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.” Id. at 107).

96

See Kingsbury & Maisley, supra note 25 (offering a description of “legal publics”).

97

Mill, for example, directly connects his educative arguments about public discourse to his theory of government, and its relation to voting. See, e.g., Mill,supra note 52, at 165:

But political discussions fly over the heads of those who have no votes, and are not endeavouring to acquire them. Their position, in comparison with the electors, is that of the audience in a court of justice, compared with the twelve men in the jury-box. It is not their suffrage that are asked, it is not their opinion that is sought to be influenced;. . . Whoever, in an otherwise popular government, has no vote, and no prospect of obtaining it, will either be a permanent malcontent, or will feel as one whom the general affairs of society do not concern.

98

See Kingsbury & Maisley, supra note 25 (offering a description of description of “normative publics”).

99

SeeMill,supra note 52, at 294–304.

100

Robert E. Goodin, Innovating Democracy: Democratic Theory and Practice After the Deliberative Turn 134 (2008).

101

Mouffe, supra note 72.

102

For this argument in the context of Arendt’s thought, see McGowan,supra note 70, at 159.

103

Arendt, The Human Condition,supra note 70, at 199:

Its [the public realm’s] peculiarity is that, unlike the spaces which are the work of our hands, it does not survive the actuality of the movement which brought it into being, but disappears not only with the dispersal of men. . . but with the disappearance or arrest of the activities themselves. Wherever people gather together, it is potentially there, but only potentially, not necessarily and not forever.

104

Benvenisti, supra note 20, at 298.

105

K. Sabeel Rahman, The New Utilities: Private Power, Social Infrastructure, and the Revival of the Public Utility Concept, 39 Cardozo L. Rev. 1621 (2018).

106

The Reuters Institute Digital News Report from 2016, for example, found that 51% of respondents use social media as a source of news. For over 25% of younger users, it is the main source of news. Nic Newman, Richard Fletcher, David A. L. Levy, & Rasmus Kleis Nielsen, Reuters Institute Digital News Report 2016, https://reutersinstitute.politics.ox.ac.uk/sites/default/files/research/files/Digital%2520News%2520Report%25202016.pdf (last visited Oct. 11, 2023). Other empirical studies show that the grand majority of young adults are active on digital platforms (Vinu Ilakkuvan et al., Patterns of Social Media Use and Their Relationship to Health Risks Among Young Adults, 64 J. Adolescent Health 158 (2019)) and spend around six hours a day on social media sites (Anna Vannucci, Christine McCauley Ohannessian, & Sonja Gagon, Use of Multiple Social Media Platforms in Relation to Psychological Functioning in Emerging Adults, 7 Adulthood 501 (2019)). See Michael Chan, Francis L. F. Le, & Hsuan-Ting Chen, Examining the Roles of Multi-Platform Social Media News Use, Engagement, and Connections with News Organizations and Journalists on News Literacy: A Comparison of Seven Democracies, 9 Digital Journalism 571 (2021) (citing empirical data from seven democracies). To a large extent, the participation of users on digital platforms has become a precondition to their involvement in the offline, physical life. Roger Burrows as brought in Beer is illustrative of this point:

Roger Burrows has suggested that the difference here is that information technologies now “comprise” or “constitute” rather than ‘mediate’ our lives. As he puts it: “. . . the stuff that makes up the social and urban fabric has changed—it is no longer just about emergent properties that derive from a complex of social associations and interactions. These associations and interactions are now not only mediated by software and code they are becoming constituted by it.”

David Beer, Power through the Algorithm? Participatory Web Cultures and the Technological Unconscious, 11 New Media & Soc’y 985, 987 (2009). This, of course, is only true for parts of the world where digital communication technologies are available: see supra note 12.

107

See Bietti, supra note 6, at 3 (referring to this as the move from the Internet of networks to the Internet of platforms). See also Niva Elkin-Koren & Maayan Perel, Democratic Friction in Speech Governance by AI, inHandbook of Critical Studies of Artificial Intelligence (Simon Lindgren ed., forthcoming 2023) (manuscript at 5) (“Nowadays, the digital public sphere is governed by a handful of social media platforms, like Facebook, YouTube, and Twitter”; also citing Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. 1598 (2018)).

108

Mickey Abel, Medieval Urban Planning: The Monastery and Beyond, inMedieval Urban Planning: The Monastery and Beyond 2 (Mickey Abel ed., 2017).

109

Cass R. Sunstein, #Republic: Divided Democracy in the Age of Social Media (2017); Jacquelyn Burkell et al., Facebook: Public Space, or Private Space?, 17 Info., Comm. & Soc’y 974 (2014). In the context of the regulation of content, see Hannah Bloch-Wehba, Global Platform Governance: Private Power in the Shadow of the State, 72 SMU L. Rev. 27 (2019). These companies have therefore been equated to public utility companies (Rahman, supra note 105) and even nation-states. Referring specifically to Facebook as one example, it is already a decade ago that Chander pointed out that: “Facebook has become so powerful and omnipresent that some have begun to employ the language of nationhood to describe it. It boasts a community of some four-fifths of a billion people”: Anupam Chander, Facebookistan, 90 N.C. L. Rev. 1807, 1808 (2012). See, more recently, Kristen E. Eichensehr, Digital Switzerlands, 167 U. Penn. L. Rev. 665 (2019).

110

James Grimmelman, The Google Dilemma, 53 N.Y. L. School L. Rev. 939, 940 (2008).

111

See Tarleton Gillespie, The Relevance of Algorithms, inMedia Technologies: Essays on Communication, Materiality, and Society 167 (Tarleton Gillespie, Pablo J. Boczkowski, & Kirsten A. Foot eds., 2014)

112

See LB v. Meta Platforms Ireland Ltd., Data Protection Commi’n, Inquiry Ref. No. IN-18-5-5 (Dec. 31, 2022) (Ir.), https://edpb.europa.eu/system/files/2023-01/facebook-18-5-5_final_decision_redacted_en.pdf (ruling the forced personalization practices of Meta (Facebook and Instagram) illegal under the General Data Protection Regime).

113

According to a Wall Street Journal study, “the top fifty Internet sites, from CNN to Yahoo to MSN, install an average of 64 data-laden cookies and personal tracking beacons each”: Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You 6 (2011).

114

Siva Vaidhyanathan, The Googlization of Everything (And Why We Should Worry) (2012). See also John Lanchester, You Are the Product: It Zucks!, 39 London Rev. Books 3 (2017) (“Then there are privacy concerns stemming from the business model of many of the companies, which use private information we provide freely to target us with ads”). See also, e.g., Facebook, Annual Report 15 (2021), https://s21.q4cdn.com/399680738/files/doc_financials/annual_reports/2023/2021-Annual-Report.pdf (“Substantially all of our revenue is currently generated from third parties advertising on Facebook and Instagram”). For an account of this mechanism from the perspective of advertisers, see Joseph Turow, Niche Envy: Marketing Discrimination in the Digital Age (2006).

115

Adam Mosseri, News Feed Ranking in Three Minutes Flat, Meta (May 22, 2018), https://about.fb.com/news/2018/05/inside-feed-news-feed-ranking/; Zeynep Tufekci, Algorithmic Harms Beyond Facebook and Google: Emergent Challenges of Computational Agency, 13 Colo. Tech. L.J. 203 (2015). See also James G. Webster, Structuring a Marketplace of Attention, inThe Hyperlinked Society: Questioning Connections in the Digital Age 23, 26 (Joseph Turow & Lokman Tsui eds., 2008) (“the operative strategy is to attract attention by catering to peoples’ preferences and/or to direct attention by exploiting the structures of the environment”); Moran Yemini, The Irony of Free Speech, 20 Colum. Sci. & Tech. L. Rev. 119, 155 n.161 (2018).

116

Pariser, supra note 113, at 7. See also Julie E. Cohen, Tailoring Election Regulation: The Platform Is the Frame, 4 Geo. L. Tech. Rev. 641, 646 (2020) (“For platforms, competition for eyeballs both incentivizes and rewards interface design that keeps users on platforms and them carefully and comprehensively as they browse, click, like, hate, comment on, and share items with one another”); Elkin-Koren & Perel, supra note 107.

117

For work on the effects of content moderation online, see, e.g., Jack M. Balkin, Old-School/New-School Speech Regulation, 127 Harv. L. Rev. 2296 (2014); Klonick, supra note 107 (providing an analysis of what digital platforms are doing to moderate online speech from the perspective of the First Amendment); Kate Klonick, The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression, 129 Yale L.J. 2418 (2020); Evelyn Douek, Content Moderation as Systems Thinking, 136 Harv. L. Rev 526 (2022) (arguing for an understanding of the project of content moderation as a “system of mass administration”); Evelyn Douek, Governing Online Speech: From “Posts-as-Trumps” to Proportionality and Probability, 121 Colum. L. Rev. 759 (2021) (reviewing the causes for the shift from a “posts-as-trumps” approach to online speech governance to a balancing approach, and the implications); Brenda Dvoskin, Expert Governance of Online Speech, 64 Harv. Int’l L.J. 85 (2023); Brenda Dvoskin, Representation without Elections: Civil Society Participation as a Remedy for the Democratic Deficits of Online Speech Governance, 67 Vill. L. Rev. 447 (2022); Thiago Dias Oliva, Content Moderation Technologies: Applying Human Rights Standards to Protect Freedom of Expression, 20 Hum. Rts. L. Rev. 607 (2020) (applying a human rights lens to the issue of online content moderation); Richard Ashby Wilson & Molly K. Land, Hate Speech on Social Media: Content Moderation in Context, 52 Conn. L. Rev. 1029 (2021) (considering how speech debates map onto the platform law of content moderation).

118

There are conflicting empirical studies on the effects of personalization. For a survey of work on this topic, see Pablo Barberá, Social Media, Echo Chambers, and Political Polarization, inSocial Media and Democracy 34 (Nathaniel Persily & Joshua A. Tucker eds., 2020). Yochai Benkler, Robert Faris, & Hal Roberts, Network Propaganda: Manipulation, Disinformation and Radicalization in American Politics (2018) (pointing to the role of Big Tech in cultivating an “epistemic crisis” but also contextualizing it within broader trends that contribute to and shape this crisis). See also infra note 134 and accompanying text.

119

Pariser, supra note 113.

120

Sunstein, supra note 109.

121

Lanchester, supra note 114.

122

Arendt, The Human Condition, supra note 70, at 199.

123

“Homphily is the principle that a contact between similar people occurs at a higher rate than among dissimilar people”: Miller McPherson, Lynn Smith-Lovin, & James M Cook, Birds of a Feather: Homophily in Social Networks, 27 Annu. Rev. Socio. 415 (2001). See, e.g., Michela Del Vicario et al., The Spreading of Misinformation Online, 113 Proc. Nat’l Acad. Sci. 554 (2016) (arguing that information that is related to distinct narratives creates echo chambers on Facebook, and that homogeneity is a main driver for the diffusion of content); Aris Anagnostopoulos et al., Viral Misinformation: The Role of Homophily and Polarization (Nov. 11, 2014), https://doi.org/10.48550/arXiv.1411.2893 (arguing that “users engagements across different contents correlates with the number of friends having similar consumption patterns (homophily)”); Luca Maria Aiello et al., Friendship Prediction and Homophily in Social Media, 6 Ass’n for Computing Machinery Transactions on the Web (June 4, 2012), https://dl.acm.org/doi/10.1145/2180861.2180866 (arguing that users with similar interests are more like to be friends and view similar topics); Pablo Barberá, John T. Jost, & Richard Bonneau, Tweeting from Left to Right: Is Online Political Communication More than an Echo Chamber?, 26 Psych. Sci. 1531 (2015) (arguing that with respect to political information only, individuals are more likely to pass on information they receive from sources with whom they ideologically align, but that this is also more true with respect to conservatives); Nicole B. Ellison, Charles Steinfeld, & Cliff Lampe,Connection Strategies: Social Capital Implications of Facebook Enabled Communication Practices, 14 New Media & Soc’y 873 (2010) (showing that on Facebook the most common communication practice is that of “maintaining behaviors” (id. at 886), i.e., interacting with one’s close friends, whereas the least common communication practice is that of “initiating behaviors,” where people aim to meet new people through the platform; Facebook “helps bring together those with shared interests” (id. at 887)).

124

Miriam J. Metzger & Andrew J. Flanagin, Credibility and Trust of Information in Online Environments: The Use of Cognitive Heuristics, 59 J. Pragmatics 210 (2013). The issue of trustworthy information has always been a problem. However, it is exacerbated on digital platforms because individuals confront this problem much more often, and also because many of the traditional intermediaries are removed online. See also Delia Mocanu et al., Collective Attention in the Age of (Mis)information, 51 Computers in Hum. Behav. 1198 (2015) (arguing that unsubstantiated claims reverberate the same as other information).

125

Alessandro Bessi et al., Science vs Conspiracy: Collective Narratives in the Age of Misinformation, PLoS One 10(2):e0118093 (2015) (arguing that “polarized users of conspiracy news are more focused on posts of their community and their attention is more oriented to diffuse conspiracy contents”); R. Kelly Garett & Brian E. Weeks, The Promise and Peril of Real-Time Corrections to Political Misperceptions, Proceedings of the 2013 Conference on Computer Supported Cooperative Work (ACM, New York) 1047 (2013) (arguing that messages highlighting inaccuracies in information tend to increase resistance to the correction).

126

Vaidhyanathan, supra note 114, at 89 (“If you do not allow Google to track your moves, you get less precise results to queries that would lead you to local restaurants and shops or sites catering to your interests”). See also Nancy K. Baym & danah boyd, Socially Mediated Publicness: An Introduction, 56 J. Broadcasting & Electronic Media 320, 327 (2012) (“In fact, offline contexts permeate online activities, and online activities bleed endlessly back to reshape what happens offline”).

127

Robyn Caplan & danah boyd, Isomorphism through Algorithms: Institutional Dependencies in the Case of Facebook, Big Data & Soc’y 5 (2018).

128

C.W. Anderson, Deliberative, Agnostic, and Algorithmic Audiences: Journalism’s Vision of its Public in an Age of Audience Transparency, 5 Int’l J. Comm. 529, 541 (2011).

129

SeeFraser,supra note 20.

130

Benvenisti, The Law of Global Governance, supra note 23, at 25. See also Eyal Benvenisti, EJIL Forward: Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?, 29 Eur. J. Int’l L. 9 (2018).

131

On the “new” governance of transnational corporations, see Neli Frost, Out with Old, In with the New: Challenging Dominant Regulatory Approaches in the Field of Human Rights, 32 Eur. J. Int’l L. 507 (2021).

132

Lawrence Lessig, Code: And Other Laws of Cyberspace (1999). See also Samer Hassan & Primavera De Filippi, The Expansion of Algorithmic Governance: From Code Is Law to Law Is Code, 17 Field Actions Sci. Rep. (Special Issue) (2017), https://journals.openedition.org/factsreports/4518.

133

Langdon Winner, Do Artifacts Have Politics?, 109 Daedalus 121 (1980).

134

This concern has often been framed in the literature as that of “polarization.” For an overview and critique of this literature, see Daniel Kreiss & Shannon C. McGregor, A Review and Provocation: On Polarization and Platforms, New Media & Soc’y 1 (2023) https://doi.org/10.1177/14614448231161880. I refrain from employing the term “polarization” as it seems to add another normative dimension to the phenomenon of political voice deficits as I understand them here. As the authors rightly point out, “polarization does not provide a normative or even conceptual way of distinguishing between White supremacists and racial justice activists, despite their asymmetrical relationship to liberal democracy” (id. at 10). At the same time, the authors also seem to frame the benefits of democratic exchanges of the type concerning those who problematize “polarization” only in terms of their contribution to “social cohesion.” The normative view that I offer here shies away from speaking of the benefits of the political voice only in terms of social cohesion. I argue that the political voice is as important for struggles for justice as it is for sentiments of “solidarity.”

135

Kari Paul, TikTok Was “Just a Dancing App” Then the Ukraine War Started, The Guardian (March 20, 2020), www.theguardian.com/technology/2022/mar/19/tiktok-ukraine-russia-war-disinformation; Dan Milmo & Pjotr Sauer, Deepfakes v Pre-bunking: Is Russia Losing the Infowar?, The Guardian (Mar. 19, 2022), www.theguardian.com/world/2022/mar/19/russia-ukraine-infowar-deepfakes. See, e.g., Christina Pazzanese, Battling the “Pandemic of Misinformation,Harvard Gazette (May 8, 2020), https://news.harvard.edu/gazette/story/2020/05/social-media-used-to-spread-create-covid-19-falsehoods/.

136

“Connectivity” refers to Big Tech companies’ strategy to personalize social webs, bringing users together under “connective action frames” which are inclusive for personal motives but demand little convergence on ideology or political claims. See José Van Dijck & Thomas Poell, Understanding Social Media Logic, 1 Media and Comm. 2 (2013); W. Lance Bennett & Alexandra Sergberg, The Logic of Connective Action: Digital Media and the Personalization of Contentious Politics, 15 Info. Comm. & Soc’y 739, 744 (2012). “Popularity” refers to Big Tech’s strategy to enhance the value of their platforms for users by boosting the popularity of certain users and content and influencing what users find important. Van Dijck & Poell, supra, at 6.

137

Taina Bucher, Want to Be on the Top? Algorithmic Power and the Threat of Invisibility on Facebook, 14 New Media & Soc’y 1164, 1170 (2012).

138

Stewart, supra note 22, at 224.

139

See, e.g., id.; Benvenisti, The Law of Global Governance, supra note 23; Kingsbury, Krisch, & Stewart, supra note 22.

140

For a view of what that regulatory response might look like, see Neli Frost, Going Global on Big Tech Regulation, 56 N.Y.U. J. of Int'l L. & Pol. (forthcoming 2024)

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