Governing Well in the Algorithmic Age: The Foundations of Digital Statecraft

Legal precedents protect computer code as copyrightable expression. They have enabled centralized digital platforms -- operating from corporate servers that hold all user data -- to construct private governance regimes through the interaction of copyright, contract, and technical architecture: people who create virtually all platform value must surrender effective copyright control through Terms of Service agreements as a condition of participation. In contrast, grassroots platforms consist of cryptographically-identified people operating their networked smartphones independently of any server or global resource; each person holds their own data on their own device, with no third party in possession or intermediation. Here, we define the notion of a digital speech act -- a deliberate volitional act by a person of cryptographically signing personal content with the person's private key, carried out on the person's own device -- through which the person simultaneously establishes attribution, accountability, and authorship over the signed content. We contend that (i) digital speech acts qualify for copyright protection under existing U.S. precedent: Burrow-Giles locates authorship in volitional creative choices despite mechanical or algorithmic processes, Feist supplies the minimal-creativity threshold, and persistent device storage satisfies the Copyright Act's fixation requirement; (ii) the digital social contract underlying grassroots platforms preserves this copyright by design -- signed content cannot be unbundled from its signature, and the full provenance chain accumulates as content is forwarded -- so that copyright ownership and physical possession of authenticated digital expressions coalesce in the person; and (iii) this coalescence of legal ownership and physical possession provides the foundations for digital sovereignty and democratic self-governance.

Computational social choice and algorithmic decision theory offer rich aggregation theory but no end-to-end process for egalitarian self-governance: aggregation, deliberation, amendment, and consensus are each considered in isolation, with key metric-space aggregators being NP-hard. Here, we propose \emph{constitutional governance in metric spaces}, integrating these stages into a protocol for constitutional governance. A community's \emph{legal corpus} comprises its \emph{laws} together with a \emph{constitution}, each being a point in a metric space, with the constitution specifying the supermajority threshold required to amend it. Members vote to amend the legal corpus by proposing their ideal points, followed by rounds of submitting \emph{public proposals} carrying \emph{supermajority public support}; a polynomial-time \emph{aggregation rule} scores each proposal, and a supported proposal whose score is positive and maximal for two rounds is adopted; if none is found the status quo is retained. Public proposals can be sourced from deliberation, vote aggregation, or AI mediation. With Constitutional Consensus, a community can run the constitutional governance protocol on members' personal computing devices (e.g., smartphones), achieving digital sovereignty. By drawing on metric-space aggregation, reality-aware social choice, supermajority amendment, constitutional consensus, deliberative coalition formation, and AI mediation, we provide a comprehensive framework for the constitutional governance of digital communities and organisations.

The increasing encroachment of artificial intelligence (AI) on social life raises significant risks for society, particularly within the infospheres created and controlled by companies such as Google, Facebook, Apple, and Amazon. This article examines these risks through an in-depth analysis of Facebook's content moderation regime, which is already partially governed by algorithms. We argue that the idea of ethical engineering, often proposed in the literature as a solution to the governance challenges posed by AI, is inadequate for several reasons. In response, we develop an alternative framework, which we term "algorithmic constitutionalism." Our approach rests on three pillars: (a) a layered architecture consisting of two levels of code: (i) an operative or object level and (ii) a meta level designed to protect the system's core principles from algorithmically initiated change; (b) algorithmic meta-reasoning, which enables the system to operate simultaneously at both levels so that it can monitor, verify, and potentially correct in real time operations at the object level that depart from principles protected at the meta-code level; and (c) correction through deliberation. The article elaborates the concept of algorithmic constitutionalism and demonstrates how it may be applied to Facebook's content moderation regime. As part of this analysis, we examine the tension between societal constitutionalism and algorithmic constitutionalism. Paradoxically, attempts to subject AI systems to external deliberative control may also enable AI agents to intervene in that process, potentially undermining its purpose. The article concludes by considering the implications of this argument for the European Digital Services Act, which entered into force in October 2022.