Private Standards, Public Consequences & The Blurring Business-Government Frontier

DigitalRegulation #45

Welcome to the latest edition of #DigitalRegulation, published every Thursday, where we explore the intersection of technology, regulation, and policy, with a touch of geopolitics for extra flavor. We explore how tech companies are stepping into roles once reserved for governments. From digital platforms acting as rule-makers to private infrastructures enabling governance without government, we’re diving into the blurring of the public-private frontier.

🔔 Subscribe and follow #DigitalRegulation to stay informed and engaged with insights into the evolving world of technology regulation.

Corporate terms as de facto global frameworks

From Google’s algorithmic decisions to Apple’s App Tracking Transparency, the corporate rulebooks of large digital platforms increasingly resemble constitutional texts in their scope and reach. Meta’s Community Standards govern speech for over 3 billion people, applied with algorithmic consistency and enforced through a complex combination of AI systems, human moderators, and, in exceptional cases, the Oversight Board — a private arbitration body acting as a proxy for judicial review. While these efforts mirror formal governance structures, they remain embedded in corporate incentives and decision-making processes.

In this landscape, Terms of Service are no longer merely contracts; they are social compacts — ones with global jurisdiction but without legislative process, public debate, or electoral consequence. These quasi-legal documents are constantly updated, the object of power struggles between companies, users and government and often enforced with little recourse. The power to define what constitutes acceptable behavior online — from political expression to commercial speech — often resides in the operational logics of privately maintained systems. In practical terms, platforms increasingly function as transnational rule-makers, shaping the boundaries of permissible action in digital life.

Not an accident, but a feature

This global private governance is not a historical accident — it’s a feature of how the digital world has evolved. Unlike nation-states, which are monopolies by design, platforms exist in a space where entry and exit are often just a click away. Governments may speak of “voting with your feet,” especially in federated systems, but the real-world friction of moving across jurisdictions makes that metaphor mostly symbolic. In contrast, switching platforms — or joining multiple ones — is increasingly seamless.

Platforms now compete through regulation

This fundamental difference has reshaped the nature of regulation. Platforms compete on policy. Content moderation is no longer a binary “yes or no” but a spectrum of tolerance, tuned to user preferences. Some platforms — like Facebook or TikTok — employ tight controls and centralized enforcement. Others, like X (formerly Twitter), lean toward looser moderation, emphasizing speech permissiveness. The result is that users can now choose their governance model as easily as they choose their interface. Free speech, once a constitutional ideal, has become a market feature.

Functional public infrastructure requires scrutiny

Yet, this competitive governance landscape does not absolve platforms from public scrutiny. Some platforms — due to their scale, ubiquity, and integration into everyday life — are functionally public infrastructure. Their failures and policies shape not just consumer experience but societal norms, political discourse, and even elections. When digital communities become as essential as electricity or roads, the question of oversight becomes not just relevant, but necessary.

Who really has the legitimacy to govern online communities?

Still, this raises a deeper tension: Why should territorial governments hold exclusive legitimacy over communities that are fundamentally global, digital, and participatory by design? If a platform’s rules are shaped through visible struggle between users, developers, civil society, and even advertisers — isn’t that a form of legitimacy, too? When users "vote" with engagement, migration, and pressure campaigns, platforms evolve — sometimes faster and more responsively than legislative bodies.

Redrawing the governance frontier

The growing ambiguity between public and private standards is not merely a technical issue of digital governance. It is a profound political question about who gets to define the values, structures, and limits of the digital public sphere. Left unchecked, the governance of digital life risks becoming a patchwork of private norms, variable by jurisdiction, opaque in operation, and insulated from democratic processes. Is this necessarily bad? 

There are certainly drawbacks to this patchwork. However, it is not without its own distortions that democratic regimes have governed free speech and content moderations. We simply cannot look at the new with the eyes of the old and require a shock of institutional creativity to reinvent the rules and regulations of the digital worlds. 

A new constitutional moment?

In this light, we may be witnessing the birth of a new constitutional moment — one not bound by geography, but by code, community, and competition. Governance is no longer the sole province of the state. It’s a contested space, shaped by the interplay between private power, public needs, and user agency.

💬 Drop your insights in the comments below or join the conversation using #DigitalRegulation!

#techpolicy #tech #technology #innovation #publicpolicy #regulation #digitalplatforms #law #politicalscience #governmentrelations #governmentaffairs #ai #academia