The US produces technology and the EU produces rules. This “division of labor” was encapsulated in this exchange: On the acquisition of then-Twitter, Elon Musk tweeted “the bird is freed.” An EU commissioner almost immediately responded (also on Twitter) that “In Europe, the bird will fly by our rules.” Anu Bradford’s article, Europe’s Digital Constitution, opens with this collision between US tech entrepreneurs and EU regulators. The specific example is in service of a much grander vision. Bradford argues that European tech regulation can be understood as a “constitution” that expresses a normative commitment to “fundamental rights,” democracy, and “fairness and distribution” (P. 10.)
Bradford’s super-power as a scholar is the ability to take something that has been recognized and analyzed in piecemeal form, and then to enlarge the framework and fundamentally shift how we talk about the area. Her foundational earlier work provided a way to articulate an unformed instinct and collection of examples into the “Brussels Effect,” which identified the global reach of EU law (elaborated in her 2015 article and 2020 book).
Europe’s Digital Constitution brings together the different strands of tech regulation—competition/antitrust law, privacy law, taxation. Think of the General Data Protection Regulation (GDPR) or privacy law. Bradford shows the content and form of the EU law that is exported into global companies and used as a model for domestic tech law and regulation via the Brussels Effect. She pushes the reader to think of these in terms of a set of broad commitments to rights and democracy.
Conceiving these areas of digital regulation as a “constitution” points to underlying normative principles. A mild critique is that the use of the term “constitution” sometimes leads to dead ends. The tech “constitution” is an aggregate of statutes and nonbinding principles, elaborated at different times by different actors, so the analogy cannot be followed far. Overall, though, the focus on normative aims brings coherence to a cluster of regulations that are otherwise often studied separately.
Critics might point to EU digital regulation as an example of “digital protectionism” and “techno-nationalism,” but Bradford rejects this depiction. She provides examples to support her skepticism of the simplistic account that digital protectionism is the prime motivator. Particularly persuasive is that many invocations of European antitrust law have been by US tech companies against other US tech companies (e.g., Microsoft versus Google, or Epic Games versus Apple).
Bradford is not entirely uncritical of the EU approach. Bradford points to the perennial question of the relationship between regulation and technological innovation, and comments on a “persistent enforcement deficit” (P. 8.)
As well as providing an account of the underlying normative framework, the article does what some of the best comparative law does. It defamiliarizes the familiar home system and reminds readers of the multiple possible paths. Its brief description of the competing commitments of the US and EU to markets and what they mean by that is a good example. (Pp. 11-13.) The comparison begins by recognizing the shared EU and US “commitment to safeguarding fundamental rights and protecting democracy.” It then points out that, unlike the US, the EU decenters free speech; in the EU, free speech is one fundamental right among many.
It is worth quoting one line in full to give you a sense of the provocative details that can shift the reader’s perspective:
While the American regulatory approach frequently emphasizes that the government does not understand technology and should hence refrain from regulating it, the European approach is more concerned that tech companies do not understand how technology implicates constitutional democracy and fundamental rights, which their products and services often undermine.
(P. 12.) In sum, the piece is sophisticated, timely, and studded with many big and small gems. Well worth a read.
