Author: Wang Yunyun (Director and Researcher, Institute of Law, Zhejiang Academy of Social Sciences).
An algorithm is a complete instruction that contains a series of numerical calculations and converts them into a computer, which is one of the specific manifestations of Internet technology. With the digital platform as the carrier, algorithms have generated the dominant power in the construction and operation of the digital society, and subtly shaped people's behavioral norms and lifestyles in the digital age.
The logic of digital power
Today, digital platforms, relying on their technical capabilities and possession of data, have gained a kind of dominance over social life under the power generation mechanism of social infrastructure. In the interaction between the technical attributes of algorithms and social attributes, digital platforms are dominating and controlling social practices in the form of digital power. Based on the integration and domination of massive data by algorithms, digital power is embedded in various fields of social operation, which has an important impact on the behavior of social subjects in the digital age.
Based on this understanding, the operating logic of digital power can be interpreted from three dimensions. At the economic level, the digital platform relies on the data advantage of "information determines the distribution of power" to provide differentiated products and services to different entities within the platform, connect, integrate and reshape the resources and relationships between various subjects, so as to create value, realize the integration of capital flow and material flow, and maximize the interests of various subjects. At the technical level, the digital platform relies on its technical advantages, gives full play to the precise distribution and feature mining of algorithms, and interacts with the entire digital society with personal terminals (such as mobile phones) as the central point, so as to reshape the information flow and achieve digital control. At the legal level, on the one hand, as the main body of exercising digital power, there is a relationship of cooperation and game between the digital platform and the regulatory power (such as anti-monopoly). On the other hand, digital platforms rely on their control over factor resources, and actually have the power to formulate rules, supervise and manage. At this time, the digital power behind the algorithm breaks through the traditional understanding of "power is public power", and is a private subject power with a regulatory nature.
Modes of regulation of digital power
The operating logic at the economic level makes it convenient for digital power subjects to pursue the maximization of their own interests; The operation logic at the technical level makes it have the ability to digitally control human society, the physical world, and the information space; The operating logic at the legal level gives it the de facto "regulatory power" over all parties in the platform. As a result, the expansion of digital power is often difficult to contain, and it is necessary to regulate it in accordance with the law. From the perspective of the existing system and practice, there are mainly the following two regulatory models.
The first is an element governance model built for digital platforms. According to the Provisions on the Administration of Algorithmic Recommendations for Internet Information Services, the Provisions on the Administration of Deep Synthesis of Internet Information Services, and the Interim Measures for the Administration of Generative Artificial Intelligence Services, although the tentacles of algorithm governance have been extended to technology developers and others, the targets of its regulation are still mainly digital platforms, and revolve around elements such as "data, algorithms, and scenarios". The logic of regulating these three elements lies in the fact that data is the foundation, the algorithm is the integration of data (input and output), and the scenario is the specific application of data and algorithm.
The first is data protection. At present, the Cybersecurity Law, the Data Security Law, the Personal Information Protection Law and the E-Commerce Law all have data protection provisions, building a dual framework of data security and personal information protection. The second is the arithmetic legal system. With the support of the "Guiding Opinions on Strengthening the Comprehensive Governance of Internet Information Service Algorithms" and the "Provisions on the Administration of Internet Information Service Algorithm Recommendations", China has initially formed a regulatory system with the State Information Office as the main body of regulation and "algorithm security", "algorithm fairness" and "algorithm for good" as the value orientation. Finally, there is the scenario application. The "Overall Layout Plan for the Construction of Digital China" systematically divides various scenarios of digital power regulation, such as online sales, life services, social entertainment, information and information, financial services, etc., and focuses on further institutionalizing and standardizing the main responsibility of digital platforms as governance hubs, requiring them to fulfill their corresponding security obligations and management obligations to service users.
The second is the whole-process governance model constructed according to the trajectory of power. Marked by the 2021 Provisions on the Administration of Algorithmic Recommendations for Internet Information Services, China's supervision of digital power has gradually extended from the physical layer in the 90s of the 20th century and the content layer in the early 21st century to the first-class layer, and has initially formed a whole-process governance model.
The first is ex-ante constraints. This means moving the threshold of digital power governance forward, and directing regulation to data and algorithms. In areas such as algorithmic recommendations, short-term broadcasting, online live broadcasting, and social networks, use methods such as algorithmic filing, security assessments of new technologies and applications, and persist in using technology to govern the network and implement precise policies. The second is in-process supervision. On the one hand, digital platforms are required to implement entity responsibility, strive to achieve "preventive governance", and ensure that algorithms "carry forward the core socialist values, safeguard the public interest, and protect the legitimate rights and interests of citizens, legal persons and other organizations". On the other hand, as a regulatory entity, ** should coordinate development and security, and use guidance, interviews, and other methods to provide reasonable expectations for the operation of digital power. The third is punishment after the fact. It mainly follows the idea of "subject-behavior-responsibility", and uses administrative power to pursue accountability for the abuse or "escape" of digital power. In terms of content, it is mainly reflected in network security, data security, personal information protection, intellectual property protection and corresponding human-computer interaction relationships. In terms of responsibility, it is mainly reflected in the form of responsibility such as ordering rectification, disposing of accounts, removing mobile applications, suspending functions or updates, closing**, and fines.
**The general secretary pointed out that "we must use history to reflect the reality and look at the future from a distance." It is necessary for us to summarize the existing institutional achievements and historical experience, deeply analyze the operation mechanism of digital power, and continuously improve the governance system of digital power in China based on the practical exploration of the construction of digital rule of law.
*: Chinese Journal of Social Sciences.