Direito Constitucional – Ciberespaço e Tecnologia

This monograph aims to contribute to the reflection on the main legal and constitutional challenges that the last decade has dared to unveil regarding technological and cyberspace regulation. As matters inscribed, by excellence, in the globalization agenda, they project us into one of the dilemmas that allegedly torment current constitutionalism: in Kumm's words, "constitutionalism between triumph and nostalgia." Hence the urgency of a constitutional law approach, despite the methodological and dogmatic obstacles along the interpretative path to be tread. Our dogmatic perspective on constitutional law regarding cyberspace and new technologies is based on identifying two fundamental assumptions: (1) awareness of the relevance and specific weight of the respective facts in the interpretation of the Constitution, leading to new paradigms and disruptive fundamental imbalances, considering we are dealing with constitutionally protected normative domains; (2) the unavoidable insufficiency of traditional constitutional normative frameworks to cope with an emerging and inexorable digital normativity, which demands global Multilevel Regulation. These premises are exacerbated by the ongoing ostensive normative expansion of the EU, particularly concerning the material domains that are the focus of this investigation, a phenomenon that has contributed to an authentic invisible constitutionalization of the EU, currently underway. In the last decade, the EU has absorbed competencies that were once exclusively and unquestionably national, with the complacency and complicity of the Court of Justice of the EU, through a genuine European normative overdose in cyberspace and technological regulation. In the specific context of the European Economic Area, this regulatory Europeanization has led to a true denationalization of the regulation of fundamental rights, a direct result of a deconstitutionalization of digital regulation in favor of the aforementioned invisible constitutionalization of the EU. For our part, we will attempt to deconstruct the specific constitutional challenges that this reluctant constitutionalization of the EU, sharpened by technological and cyberspace regulation, entails in the relationships between the European legal order and national constitutional orders, particularly the Portuguese one. In this regard, we will try to identify potential legal and constitutional dissensions and perplexities that the content of the aforementioned regulation raises. In particular, the so-called new Technological and Digital Constitution of the EU, which encompasses the new rules applicable to Digital Services, Media, and Artificial Intelligence. It is also worth noting the trust that the European legislator places in Ethics as an essential component of the regulation of certain AI systems. Beyond a process of tacit, voluntary transfer of national competencies in favor of the EU, by action or omission, the following results: (1) the national and European administrativeization of technological and cyberspace regulation in constitutionally sensitive areas; (2) arguments in favor of technological and scientific internormativities, within the context of a Global Regulatory Administration that operates through informal decision-making procedures, compatible with relative and de facto normativities, but incapable of justifying and legitimizing restrictions on fundamental rights. On one hand, through the European regulatory convergence produced by the European legislator, other transnational or international bodies with relevant administrative and regulatory powers, particularly in the EU, emerge. Executive and administrative bodies, especially national and European regulators, are granted the power to define, innovatively, with the freedom and discretion once exclusively held by the political function in a broad sense, the means and instruments suitable for pursuing the state's goals. There is a preference for the use of typical State-Administration acts, even normative ones, dispensing with the legislator and the distinction between legislative and administrative functions. This functional and flexible view of the principle of separation of powers, particularly tempting in cyberspace, strengthens administrative activity, whether national or European, and exacerbates the degradation of the democratic legislator's role in regulating fundamental rights. In turn, in a context of such a malleable separation of powers, foundations that legitimize a normative order of its own, inherent to the technological and digital system, could easily abound, crossing the boundary of systems and replacing functions hitherto exercised by the norms of the legal system, but without the respective scrutiny and institutional oversight mechanisms. In the specific case of content, information, or data emitted in digital space, either parallelly or alternatively, administrative bodies and independent administrative authorities share strictly regulatory competencies, delegated ope legis, with private entities operating in cyberspace. In exchange for effective regulation, the state has renounced its regulatory and supervisory monopoly, through genuine institutional decentralization, from a dual perspective: (1) within the framework of legal-public activities under the state’s responsibility, the administrative state is strengthened at the expense of the legislator; (2) in the context of legal-public activities traditionally exclusive to the state, authentic public powers are attributed to private entities. In the relationship between national legal systems and the EU, their respective hierarchy is rejected, favoring voluntary subordination relationships, while an absolute and unconditional primacy of European law, even over critical points of Member States’ Constitutions, is unilaterally invoked. The differences between ordinary courts and Constitutional Courts are fading, in the face of an ambitious call for general mobilization, without distinctions, aimed at ensuring the effectiveness of European law. And, while advocating for productive dialogues with other courts, the CJEU gradually assumes the role of Federal Constitutional Court, the Court of Fundamental Rights of the EU, co-leading a process leading to the progressive and tacit nominalization of the Constitutional Courts of the Member States.