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Algorithmic Constitutionalism

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.

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