Introduction to the Guest Blog Series Preserving Public Values in The Automated State by Orla Lynskey, UCL Laws and the College of Europe, Bruges and Giulia Gentile, Essex Law School.

As automated technologies such as artificial intelligence capture the imagination of the public, States have a renewed impetus to avail of the opportunities these technologies offer, including claimed efficiencies and modernisation. The digitisation of public services across Europe is therefore underway, albeit to differing extents depending on the country and the sector concerned. Examples include the increasing automation of border controls in Europe, recent measures seeking to enhance the digitisation of justice in the UK and several EU Member States, and the deployment of private digital platforms, such as Google Education, in the delivery of education. In each of these examples – migration; justice and education – the State has entered into new relationships with the providers of digital infrastructure and services. 

Existing literature on digital technologies has focused predominantly on the public law functions ‘delegated’ to private sector actors (such as the balancing of privacy, data protection and freedom of expression undertaken by Google Search when it assesses ‘right to be forgotten’ requests). This phenomenon has been labelled in different ways, from simply ‘platform power’ to ‘digital constitutionalism’. However, the impetus for this project was the observation of a distinct phenomenon that embedded private actors within public services enabling them to exercise influence over these public services through their provision of infrastructure and services. 

While public-private collaborations are not new, the aim of the DigiPublicValues research project was, first, to gain a better understanding of what, if anything, was distinct about these relationships in the digital context (are collaborations concerning digitisation and automation distinct) and, second, to identify the impact of these technological entanglements on public values. To date, there has been no comprehensive, systematic study of the threats to public values caused by the expansion of digitisation within the public sphere. DigiPublicValues, a collaborative, interdisciplinary project funded by the EU consortium CIVICA between October 2022-2023, sought to fill this gap. The team was led by LSE Law School working in conjunction with researchers from the Centre for Digital Governance at the Hertie School, the European University Institute, and Bocconi University. 

In a series of workshops, the team carried out a comparative analysis of the dynamics of digitisation in the fields of education, justice and migration and identified the public values that were most evidently engaged by this process. These values are participation, proportionality, transparency and accountability, and publicness itself as a value. The analysis reflected on how these values were challenged when private digital actors were embedded in the provision of these public services and discussed established as well as novel ways in which they could be held. This Symposium gathers and shares some of the findings of the DigiPublicValues project. It is structured in three parts. 

The first section of the special issue, ‘Public-Private Entanglements and Digital Public Values: What’s New’, provides the background to our research questions and project. It includes two contributions: the first by Giovanni De Gregorio and Oreste Pollicino opens the blog series and sheds light on Digital Constitutionalism, a body of literature which has characterised the role of private digital operators in shaping the protection of fundamental rights only as constitutional; and a second by Gerhard Hammerschmid, Jessica Breaugh, Simona Stockreiter, Maike Rackwitz, and Ridhima Singh, offering a systemic empirical overview of the existing literature on the protection of public values in public private partnerships and identifying its potential relevance to the digital realm. 

The second section, ‘Spotlight on values’, comprises contributions on the public values examined throughout the project. Francisco de Abreu Duarte takes on the difficult task of defining ‘publicness’ bringing to the fore the different ways in which this might be conceptualised; Deirdre Curtin and Anna Morandini identify the ways in which accountability and transparency are jeopardised or reconfigured in these scenarios; Marco Almada and Maria Estela Lopes identify the potential as well as the limitations of public participation in the delivery of public services; and, finally, Natalia Menéndez González and Spyros Syrrakos reflect on the issues surrounding the application of proportionality in the digital public sphere. 

In the final part, ‘Future Prospects’, Albert Sanchez-Graells analyses the role that public procurement does, and should, play when the State enters into contractual relations for the provision of digital instrastructure and services. Finally, Malavika Raghavan, Alexandra Sinclair, Orla Lynskey, and Giulia Gentile offer some reflections on the questions that our research interactions through DigiPublicValues laid bare as well as those stemming from current adjacent research projects. 

We hope you enjoy the blog series and would be delighted to hear from others who are working on similar themes. 

Orla Lynskey

Orla Lynskey is Chair of Law and Technology at UCL Laws and a Visiting Professor at the College of Europe, Bruges. She is interested in the impact of private power on the protection of fundamental rights and the provision of public services.

Giulia Gentile

Giulia Gentile is Lecturer in Law at Essex Law School. Her research focuses on EU constitutional law, human rights, and the digitisation of the state and its functions.  

Orla and Giulia acted as Co-PIs on the DigiPublicValues project while at LSE Law School.