Raquel Castro (University of Lisbon - Institute of Legal and Political Sciences) has posted Cyberspace and Constitution on SSRN. Here is the abstract:
Issues raised by cyberspace have real impact on constitutional justice and constitutional interpretation. At a normative level, any over-interpretation reflects the result of exacerbating the conditions for concretization – by overestimating the impact of real facts and the specific problem to be solved.
For today's technological reality, a technologically neutral constitutional interpretation should ensure the expression of the constitutional values that have been positively stated – explicitly or implicitly inferred from – in constitutional norms, saving the constitutional identity within the limits of the constitutional text.
At a regulatory field where the pace of legislative intervention and its corresponding density are particularly problematic, it becomes crucial to ascertain whether the expected increase in judicial activism – namely through the creation of “ad casum” rules – should be subject to constitutional justice scrutiny.
In fact, these new cyberspace challenges call for a regulatory recasting, focused on the activity actually carried out and on the effective impact of restrictive interventions. Cyberspace’s current regulatory vagueness does not legitimize constitutional states of exception, other unforeseen or omitted norms, or even a "Constitutional Law of the Enemy”.
