 Hello everyone, really delighted to welcome you all to this luncheon talk and even more delighted in many ways to welcome actually a Swiss compatriot of mine, Professor Christoph Graber. I should say though that we've never met in Switzerland before. I followed his great scholarly work but it took a while to get him to Cambridge and finally being able to meet and talk about interesting topics. So Christoph is a professor at the University of Zurich in Switzerland. He has a chair for legal sociology as you can see here with a focus on media law. He's doing really interesting work. Today we'll hear about a book project and about the paper he's working on. Dealing with a really fascinating question and that is how do core values and even the rights emerge? It's really I think multi-disciplinary fascinating question and how also do such rights ultimately make it into law or into constitution. So Christoph will talk today about this concept of bottom-up constitutionalism will bring together different perspectives from different disciplines and I'm already looking forward to a great conversation thereafter. Christoph a very warm welcome. He actually even made it snow today so that you feel at home and particularly welcome here in Cambridge and we're really delighted to have you here. As I said it's a fascinating topic and I'm particularly looking forward to also bringing different theories together also bridging the Atlantic in many respects as you will see some of the concepts that Professor Graber will introduce today are coming actually from German scholars of sociology that have been very influential around the globe and to bring it and use it to illustrate some of the net neutrality debates in the US I think is a fun way also an intellectual fun way to deal with the timely topic. So thank you Christoph. Hi everyone and thank you very much Urs for this very warm introduction. I'm really grateful and honored to be able to be here for the next four months here at Harvard Law School and Bergmann Klein centered to undertake a research project and it is that research project that I would like to talk about today. Urs already mentioned it briefly. What I'm interested in is the question basically whether we can observe the emergence empirically of a new constitutional right that is protecting the internet. So what I have in mind is not only a right that is protecting individual communications over the internet. What I have in mind is beyond that a right that protects the internet as an institution. So for lack of a better word in my talk today and also in the written version of the paper that you may have seen I use net neutrality. Net neutrality should be understood not as a very clear concept at the moment as far as I use it. It stands as a kind of shortcut formula for a set of normative expectations that have not yet fully been conceptualized. So I would like to invite you to look at these two questions. These are the questions underlying my talk today and in a way also underlying my entire research project. So the first question is the one that I already outlined. It is can you observe a new constitutional right that is protecting the internet? Can you observe an emergence of that new constitutional right? And then the second question which is more at the center of today's discussion, can such a constitutionalization process emanate from civil society? So not from the processes that jurists know that are prescribed for constitutional amendment but emanate from the middle of society. I'm asking these questions in my capacity as a legal sociologist so I try to combine perspectives of a jurist, I'm a trained lawyer, perspectives of a jurist with the perspective of social theory and that can be tricky at times. You will see that already when I use the term constitution. I use this term in a very broad way and at least for jurists and I think especially in the United States this broad use can be rather provocative. So let me start with some introduction regarding the use of the concept of constitution both in legal doctrine and in social theory. Now when we talk about constitution what do we understand in everyday language? We understand in everyday language and also I think this is the understanding of jurists and of political philosophers we understand something that refers to a written document, the US constitution or the Swiss constitution. So this is a formal understanding of constitution. This is the first way to understand constitution. Now beyond that this understanding is usually focusing on a nation state, a nation state and a national territory. So beyond that understanding we find also legal theorizing that deals with the term constitution also beyond national territories. We see that for instance in international law or in the law of the European Union. In international law for example the Charter of the United Nations has sometimes been called a constitution of the world. And in the European Union the Charter of Fundamental Freedoms has also been compared with a constitution of the European Union. So this is again a formal approach looking at a written document but it is going beyond the national territory looking at international context and looking at supranational European law. Now beyond this formal way to look at constitution there are also functional ways, sociological ways to look at the concept of constitution. Based on important theory of Niklas Luhmann, the famous German sociologist that Urs referred to and the British sociologist Chris Thornhill this functional perspective on constitution has been applied to look at constitution still in the political legal realm. And this functional perspective identifies two specific functions that in a general way are argued to be present in any type of constitution that one can look at and these elements are first a constitutive element and secondly a limitative element. Now to become a little bit more concrete what would that mean if we look at the Swiss constitution there we find chapters organizing the powers of the Swiss state and that would be the constitutive aspect of the Swiss constitution. The limitative elements you find in those chapters of the Swiss constitution which deal with fundamental freedom so limit the power of the state and also in those chapters which deal with checks and balances or the division or separation of the powers. So this is this understanding this is functional but looking still at the political legal context. So now my understanding of constitution is even broader and it is based on theorizing that has been undertaken by Niklas Luhmann again he was the forerunner also for this broader view and then very importantly David Schurli an American sociologist and Gunther Teubner German legal sociologist. So Gunther Teubner has introduced the term transnational constitution or transnational constitutionalization. Other words synonyms that he has used is societal constitutionalism or civil constitutionalism. What does he have in mind with his theory? He is actually also putting forward a functional theory and he invites us to expand the these functions to areas that are going beyond the political legal realm. So basing on Niklas Luhmann's theory that we are in a world society where we have observed a move from a territorial differentiation to a functional differentiation. We are in a world where there are function systems like beyond the law and politics. We have the economy, we have science, we have religion, we have education, we have health. These are some of the main function systems and most of these function systems they expand globally. And now the thesis of Teubner is based on Schurli and Luhmann that also these function systems not only politics and the law but also other function systems develop their own constitutions and he observes that by distinguishing these constitutive and limitative functions. Now I would like very, very briefly to introduce the key stages of Teubner's theory of societal constitutionalism or transnational constitutionalism. According to Teubner this is a communicative process. So we should look at a specific subsystem of society and what should we look at? What should we try to observe? We should try to observe whether there are normative expectations emerging from that specific subsystem of society. To be clear what I present here is an analytical scheme that can be useful to observe reality. So it is not normative, it is just an analytical scheme that can then be used to test whether we are actually able to observe such a process or not. So that would be the first stage. When normative expectations emerge I will then talk about later what this internal reflexive process means. Then at the second stage according to Teubner there would be a juridification of these normative expectations that emerge from the specific subsystem of society. In terms of auto poetic system theory, Luhmann's theory that would be a structural coupling between this specific subsystem and the law basically reformulation of normative expectations that come from a specific subsystem in the language of the law. Now the process of constitutionalization is not accomplished at this stage, a third step is required for that to happen and that is according to Teubner an application of legal norms on legal norms, something similar as HLA Hart has suggested when introducing secondary norms and primary norms. So in Hart secondary norms are norms that deal with the functioning of primary norms. And this is in a way also what constitutional norms do, they deal with norms of a lower hierarchical level. So that would be the final stage only when we reach this third stage we can talk about a societal constitutional process that has been accomplished. Now that is the theory in a nutshell. Now theory requires verification and I have looked for getting empirical evidence to test and verify this theory in the realm of net neutrality. I have looked at evidence from the United States and here are some of the key events of the net neutrality debate in the United States. Now I'm aware that there are many people here in the room that know this debate very well, much better than I do. So I can be very brief to recall some of the basic stages in this debate. I think the term net neutrality was coined by Tim Boo in 2003 essentially as a political concept and as a political concept it was also first used by the FCC two years later in 2005 in this internet policy statement. And then the first legal use of the concept happened only in 2008 when the FCC applied the concept in the Comcast case. So it tried to make that concept a legal concept but the Court of Appeals reversed that decision of the FCC in this April 2010 decision essentially deciding that there was no legal authority of the FCC to do that. So saying this is not a legal concept, we cannot treat it as a legal concept. Now the FCC backpedaled and introduced a new proposal for kind of net neutrality rules in 2010 but again the Court of Appeals of the DC Circuit reacted and reversed that decision of the FCC again saying there was no legal authority of the FCC. And now what is very interesting in that moment in 2014 basically something happened. There were many civil society organizations, internet activists, consumer organization, public policy activists who argued that net neutrality is a very important value that should be protected and that the FCC should really adopt strong and enforceable rules on net neutrality and these groups they mobilized people and that also then was pressure that influenced the FCC and the FCC reacted in opening a consultation on a new proposal that was taking place in May 2014. And now a broad mobilization happened and that was something that was observed closely by the media lab here and I think that is great research that has been undertaken by the media lab demonstrating and also observing very closely how the net reacted on the various interventions and proposals that have been made but what is fascinating that almost 4 million people filed commands on this proposal of the FCC and many people argued that actually the FCC should reclassify, should reclassify broadband services as telecommunication services because before they were classified as internet services and so there was no authority for the FCC to really act and very interestingly again the FCC responded to these commands and modified their original proposal and adopted strong rules on 26 February 2015 rules that provide for a reclassification of fixed and mobile broadband services as telecommunication services so as requested by many commenters and then also adopting three so-called bright line rules banning basically the blocking, throttling and paid prioritization of data on the internet and then there were two more rules that were adopted the general conduct tool and the general transparency rule. Now clearly the telecommunications company, the telecom lobby was not happy with that decision and they challenged this decision of the FCC again with the Court of Appeals but now strikingly this time the Court of Appeals said okay yes the legal authority is here this reclassification is fine and the rules that were adopted by the FCC they are in conformity with the law so if the story would stop here one could say yes a juridification of the concept is accomplished but unfortunately the story continues the telecommunication lobby is going to fight against these rules on every level they announced that they go to the Supreme Court I don't know how far these proceedings are at the moment but probably more importantly the new presidency changed the political situation completely with regard to net neutrality so the FCC will have a new composition and there will be a republican majority and there will be people in the FCC that are not really friends of net neutrality so we could say at the moment we are probably far away from a juridification of net neutrality than we were a couple of years ago so now let me use this data these empiric evidence to come back to these three elements that I introduced at the beginning now the question would be which is the specific subsystem that we have to look at when we want to observe whether there are normative expectations related to the net neutrality are emerging I argue in the written version of my paper that we should look at the economic system because in my view many debates many communications related to net neutrality are essentially economic communications we could talk about that in the discussion if people are here who disagree so I think the economic system is the system to look at and then we have to look whether there are normative expectations emerging within this system and now this interplay between the between the organized professional and the spontaneous fear of the economy are very important what do I mean the organized professional sphere is the sphere where you have the corporations the telecom corporations and the spontaneous fear of the economy this is the sphere where you have civil society representatives all the actors that I mentioned before and these two spheres there are in a way in a reflexive process so they look on each other they observe each other they push each other to to become more precise and to develop responses to certain criticism and that is this reflexive process that helps to specify these normative expectations that are emerging and then the juridification stage here these normative expectations that emerge from the economic system would be structurally coupled with the legal system so basically reformulated in the language of the law and when we try to adapt that to the empiric evidence that I mentioned before I think here we can observe a kind of communication or exchange between the internet economy sector in the one hand in dialogue with the FCC in their legal capacity because FCC in my view is a kind of hybrid organization with political functions and legal functions so in its legal capacity and certainly also with the court of appeals but as I said certainly this process of juridification is not accomplished the story continues so it is only hypothetical to look also at the third stage what would we expect or what should we expect at this stage we would expect the development of constitutional structures distinguishing in a binary code between constitutional and unconstitution so essentially the application of legal norms on these juridified normative expectations that emerge from the economic system so what we would have are two reflexive processes one reflexive process in the economic system essentially so between this spontaneous and the organized professional sphere and then another reflexive process within the legal system where basically constitutional distinctions would then be applied and in the case of the United States I could think of the of the Supreme Court of the United States that would finally deal with such questions but I mean that scheme is not only applicable to the situations in the United States it's I think it's has a an universalistic claim so that is in a way the proof of the pudding or my suggestion how the proof of the pudding could look like now the final questions that that I would like you to think about with me is a very key question if there is such a process of societal constitutionalism how should we understand the relationship between such a development of constitutional norms and the formal processes of constitutional amendment what would be the real relationship between the societal constitutional process and the formal constitutional process I think this is a very very difficult and very important question so I'm very keen to hear your reactions afterwards my suggestion is the following when we have constitutional amendments in many states there are super majority requirements needed for amending the constitution this is certainly the case for the United States and so there the stakes are very high and accordingly a constitutional amendments happen very rarely it is much more likely to happen in Switzerland for example where we have referendums and the referendum then is brought forward to a rotation of of the people and the constitutional amendment is adopted when we have a double majority a majority of the people voting and majority of the sub-federal political entities the so-called cantons then if the two majorities are there we have a constitutional amendment and that happens in Switzerland all the time beyond these formal procedures of constitutional amendment what we have is also the change of the constitution by the way of of judges deciding and interpreting the constitution this is observable in Switzerland again it is also observable in Germany and also at certain instances it has been observed in the case law of the court of justice of the European Union in Switzerland for instance the Swiss federal court has been recognizing unwritten constitutional rights unwritten freedoms of the constitution since 1959 now a last word on my view how this relationship between social constitutionalism and formal constitutionalism should be seen I don't see those processes in an antagonistic way I see them more as a kind of interconnected vessels as two areas that are in a reflexive relationship let me explain what I mean if you have a societal constitutionalistic process a process of societal constitutionalism certainly from the perspective of formal a formal constitution you can criticize certain shortcomings with regard to legitimation and acceptance so that would be the check from the formal constitution on the social constitution but it works also the other way around I think from a social constitutionalist perspective you could also criticize or check whether the formal constitutional processes work as they should it can be the case that actually in certain areas there is an absence of a really living democratic functioning of the institutions and there the societal constitutional processes could point to a requirement of reform so this is very briefly what I wanted to say as an introduction and I'm now very interested to hear your reactions and would like also to hear your ask questions and and comments thank you so much Christoph maybe if you don't mind to switch back to slide seven which I found very helpful so if I may kick off the discussion with with a brief question looking at this bottom layer here and the question of how normative expectations form particularly in the paper and but also in your presentation you highlighted that there is an interactive dynamic going on between somehow the organized professionals you use the telcos the companies as kind of one example in this category and some sort of the less organized more bottom up more distributed civil society participants and policy advocates and consumer organizations and the like and I was wondering whether you could say a little bit more about that and maybe also bring in the Rob Faris who has done research empirically on this question looking at the net neutrality debate specifically as to what extent actually the crystallization of these normative expectations results from this unorganized versus organized or as to what extent which is slightly intention I believe to what you said it very much depends whether these normative expectations crystallize that also the unorganized get organized right you made this point in the paper you said well that ultimately the unorganized got influential with the FCC required some sort of campaign so it's just really interested in are there really two sites at this level unorganized and organized or is it more a story of becoming organized so that would be my first question yeah thank you for the question so the term organization is a sociological essentially a sociological term that is usually used to describe entities that have received a formal organization as for instance corporation has received a formal organization the term organized professional is used in that sense I mean the spontaneous sphere of the economy all these civil society representatives all these various dynamics these centered dynamics they lack this kind of formal organization that would apply to a corporation but you're right in another way to look at the question of organization not in this formal sociological sense it is clear that in the debate that has been observed by the media lab it became clear that also civil society learned how to join forces and how to increase their impact in mobilizing people and and there were many also very creative activities and interventions John Oliver for instance I recall made a huge difference with with a broadcast I think in England even about the US debate and that had made a huge change in the debate and was helpful to mobilize the end four million people so I do not see it as a clear and agonistic distinction but more I think it was a question of terminology I see thank you Rob is this a good point where you can briefly summarize some of the highlights from your empirical study on what has been going on in this debate I'd actually rather ask questions but yeah so first of all thank you so much for the presentation it's fascinating and a lot to actually get one's head around what what we observed in the net neutrality debate was certainly a division amongst the professional classes as to what the right answer was and I don't think there was anything in that debate that actually answered those substantive questions about whether that neutrality was a good idea or not and then we saw the spontaneous organizing as you describe take place and that was very lopsided and and I guess the question that comes out of this for me is how do we know when normative expectations have actually emerged and and like what's the measure of that and who's actually has to stand to make that measure and I guess it's that interaction between the formal political and the spontaneous that kind of leads to those answers the the and the one last thing I want to throw in there which is you you rightly point out that four million number and I think one of the stories untold in the net neutrality debate is the framing around it as to what was a legitimate expression of kind of the normative expectations of society and what wasn't the first two million or so comments to the FCC occurred in the summer people looked at them at the sunlight foundation they looked at in an overwhelming number were pro net neutrality I don't remember exactly but it was over 95 percent of them there was another round in September that the other side of the debate ruled it and the reason they were able to do that was through an email campaign that a lot of people thought was not legitimate so they were a lot of people it was done by a social media marketing firm and and they got a lot of people to sign up and say net neutrality is a very bad example but that actually got no credence at all and and people often cite that four million number suggesting that four million people were in support of that neutrality but there was actually this this this waiting process that went on behind the scenes Tom Wheeler himself he cited four million comments and didn't say that almost half of them were anti net neutrality in the end which is funny so these are very interesting remarks and questions that that you're bringing up I think yes this interaction between the organized professional and the spontaneous fear that is actually the process where normative expectations in a way get formed where they where they shape and to talk about the FCC and the four million comments it is fascinating to read the report of this decision opinion of the FCC of 2015 where the FCC continuously refers to comments coming from people of the civil society but as you correctly also say this campaign by I think American commitment was it they they invited people to send pre-formed or pre-printed forms expressing a view that was against net neutrality and I mean that is exactly the point where I think that this relationship between the formal constitutional procedures and the spontaneous constitutional procedures are important I think that is exactly a situation where there is a shortcoming regarding legitimacy of expressions that coming that come from the spontaneous sphere and here there is a necessary check of the question of democratic legitimacy required so that is very good that you point to this example thank you thank you let's open up we have a question right here thank you uh following on that question of democratic legitimacy uh recently Erica Chenoweth wrote about that civil resistance needs about 3.5 of the population to participate in order for how many percent 3.5 percent we can quibble on the exact number I'm sure but which is very uh I know a lot of people have been paying attention to you given the protests that are going on right now in the country for this type of norms creation to translate into a legal sphere you've now and we've discussed the four million number do you have a sense of whether it's a percentage or a way to describe the uh how how many need to be involved in the process in order for it to gain legitimacy or is it possible for this type of a system to be hijacked by a small group thank you very much um basically I don't think that it is a quantitative question it is very difficult really to assess at which stage we can speak of really normative expectations that have emerged probably it is easier to come to to a clear statement you know here's a historic perspective after a certain event happened one could then reconstruct and say yes that was the stage where really um a strong momentum um was present but I would not be willing to um mention any numbers as a kind of threshold for the point where you could talk start to talk about normative expectations that have emerged from civil society hi thank you for your talk i'm mary gray i'm a fellow here at the berkman client center and i'm i'm realizing when i hear the word spontaneous sphere i'm thinking of collective action and social movement and you're a sociologist of law but it's interesting that we sent we seem to be approaching this as though it's masses of individuals acting versus there are um flexible we could say maybe informal institutions nonprofits community-based organizations that are very much part of constituting these movements so i'm just i think my question is are there ways to think about this as as um intersecting with um the freedom to assemble for example uh that we tend to think of as just again kind of faceless uh masses of individuals that in at least empirically when we look at how these things come together even for those two two million it had to do with a lot of collective social action that had you know had to kind of corral that energy and also had its form letters i mean i sent a form letter so i don't know that it's terribly different than the two million who said no that we we might be at a moment where we don't know how to contend with the constituting of those values that's happening through these loose networks that are assembling and i'm just wondering if there's a legal route for bringing this conversation to to the right to assemble yeah thank you um the freedom of um assembling i don't know whether it exists in the u.s constitution in switzerland it exists um i think i'm not an expert about the freedom of assembling but i would expect that it has in mind basically um the people coming together and meet in a way in person face to face that possibility to have a room where they come and meet and then debate because if a meeting is not taking place i think you could talk about free speech or freedom of communication and the information expression and information as the term is in in in europe you would not need to refer to the freedom of of assembling but surely communication between these distributed smaller groups is extremely important because then these smaller groups they have the possibility to mobilize people who sympathize with their um agendas and then they need to join forces and and that is extremely important for such a mobilization a broad mobilization um is being possible as it was in the case of net neutrality if i might jump in here with a quick follow-up question um are you nervous about that development or what we just described as a phenomenon because to me when listening and also looking what's happening politically right now isn't there a certain randomness to the quality that that you describe here that yes sometimes you know there may be a tipping point and something crystallizes that then bubbles up and then okay there is some sort of a filter mechanism which is heavily shaped by the political preferences of the filtering the people in control of the filtering mechanism as you alluded to but then there may be instances where you have really important social norms that emerge here that somehow don't find the constituency where this this this sort of collective action moment happens and comes together and therefore uh doesn't even get a chance to bubble up is that something we should be concerned about about this kind of some sort of randomness behind this i think it's a question from which perspective that you approach the issue um if you start with the um um situation that is familiar and which is in a way what most tourists um understand as the classic situation is that constitutional amendments um happen according to prescribed rules which make sure that democratic legitimation is assured when the constitution is changed because the constitution is considered to be the the most uh authoritative and important uh document of any nation state so if you look at just this situation i would say in such a situation it is very very difficult for certain um values to emerge and to make it into the constitution especially if you consider that the constitution was drafted at a certain moment at the moment in the united states and also in switzerland where we have a reformed constitution of 2000 where the internet had not this strong position as it has at the moment in the united states it was far away so um and there are certain um juries certain um lawyers in switzerland and also elsewhere which interpret the constitution in a rather conservative way saying um no change is possible and we have to interpret it by the letter so if this is let's say the normal situation i would say this kind of process societal constitutional process can be a kind of um element which would open up this more petrified way of reflecting social needs in the institutions of a state so this is a quick follow-up on Uri's question i think in the same direction so if we think about formal constitutions they actually reflect our fundamental social contract and the main function would be to protect us against captured by temporary majority right and the process that you have been describing to us is a process where actually power could prevail right i mean this is like you warn us against you know the recurrence of power you know as we will see we'll heal more even in the net neutrality um uh context and my question is whether when so you describe to this is a descriptive model right and the question is whether when we look at it from a normative perspective either any way to insert some safeguards into this process to secure against this type of abuse of power so that you know dosing power at a certain time would be able to compromise our social contract yeah that is a very important question and i understand why both of you are concerned in this respect um you know probably it is because i um coming from switzerland and i have confidence in direct democratic institutions that uh that i am less less scared about the so you're saying i've been in the u.s for too long that i start to very no i wouldn't say that but i mean certainly you cannot compare switzerland with the united states but i think no but i mean hannah arendt for instance um she was very um concerned with the situation after the second world war and she um she had a strong emphasis in uh making ideas of direct democracy strong so she fought all her life for more direct democratic elements and i mean you can uh if if the people have all the time the possibility to express their views and are included in political processes then these people also learn how to make a responsible use of their political rights and certainly in also in such a situation where you have more um let's say bottom up influences making it into the formal institutions there is clearly also a need for checks and um at this stage of juridification there is a first important check because here these self-founded normative expectations they are checked by institutions as we have seen in the case of net neutrality in the united states the court of appeals of the dc circuit is one of the institutions then which then have this possibility to check on the normative expectations that emerge and also at the third stage then actually this debate would then let's say enter also the constitutional debate and it might be that then such a question is brought before the court of the supreme court of the united states if we talk about the united states and the supreme court would then have to decide how to see such a new emerging norm uh on the basis of the existing rules that um are in the formal document of the united states and also in the case law that has emerged from from that so i share your concern but i'm more confident with um the possibilities to have checks on such dangerous developments thank you so i'm from denmark an even more trustful country i think i really enjoyed your talk and especially the way you use lumen for your framework but i'm i haven't i must say i haven't read your paper so maybe my question is is off for that reason but my sense from following the net neutrality debate mainly in europe and mainly from a human rights perspective is that the emergence of normative expectations actually didn't arise within the economic system but from outside the economic system and then eventually those expectations annoyed or irritated the economic system to an extent where they had to to take them in and deal with them so i mean i'm a bit surprised that you say the normative expectations for net neutrality came from within the economic system my my reading of it is that the economic system kept opposing precisely those values thank you for that question i i expected this question some time ago and i'm very grateful that you finally ask it um i had um debates discussions with gunther toitner about the question which i sent him this this paper and we discussed it and we disagreed on the question which system would be the the subsystem at issue toitner argues that there is a system like the internet internet is also a system for toitner and i um disagree with him on that um i had really to think twice or even three times to to develop my argument against him because he is really a very strong thinker but my arguments essentially are based on classical reading of lumens theory so lumens theory i don't know i hope that i will not bore you with too much details about that is a communication theory and there are classic communication systems that have been described by luman let's say politics the law economics science religion education health art family so these are some of the main system that have been described so if you look at a specific subsystems where normative expectations would happen you should if you apply luman um then you should look at one of these systems now toitner goes beyond luman and says the internet should also be considered as a system and i disagree with him because in my view in my view i should talk then more about that um this internet realm it is about communication but it is not itself communication it is a technical means that can be used for people to communicate it is a kind of infrastructure and it is not itself a social system so that is a short answer to your question which would require a lot more um debate but i don't think that most people here would be interested in that yeah thank you so much for the talk and the paper i wanted to ask one question methodological conceptual about the constitution when would you say we could say that the formal constitutionalization has happened because if if supreme court upholds fcc's rules it does that not yet mean that right it only means that fcc's rules are not unconstitutional but it doesn't say that there is a positive obligation and and connected with that why do you think we should go through the constitution to assure that because a descriptive claim net is neutral so the practice and technology is such that it's neutral and it comes from normative expectations doesn't have to be descriptive of constitution the easiest way to do it would be to pass an act of the parliament so do we really need to have that as a constitutional principle to have the neutral net and on the last thing which came about the democratic part so i come from poland have strong ties to germany to hangary so my belief in direct democracy and democracy has been shaken lately and when you refer to adent i was wondering the the rights in the constitution and german constitution was not actually social contract of the german people it was written and given to them by the americans are supposed to be neutral and obvious regardless of the of the democratic majority and with what we can see around the world now wouldn't you say that in a way even if there is no emergence from the societal constitution there are some things and that neutrality should be one of them where the court should rule anyhow there are many questions let me feel free to pick one yeah time say let me ask the first question so you asking at which stage could we then say that this third stage has been accomplished would it be sufficient that a court like the supreme court would say it is not unconstitutional no that would not be sufficient it would require that a court a constitutional court be it the american court or another court or another type of constitution of institution would say this is a new constitutional right so compared to the swiss federal court who said for instance in the 1960s that freedom of expression and information is now an unwritten right of the swiss constitution because in parentheses before that it didn't exist in the swiss constitution in the written text but the swiss federal court recognized it as an unwritten constitutional right and that they had the effect that it had the same standing as the written constitutional rights that were to be found in the document so that was the first question and do we need a constitutional right to protect net neutrality that is a key question of the research i'm conducting here over the next couple of months i insist and i think it is really very very important that this communication that we have on the internet is considered to be as something that is not protected already by the existing constitutional rights like free speech or freedom of expression and information if you look at european context i think that the communication that is taking place on the internet is something specific and that is so important that it is in a way the essence for all professional or private communication for most people worldwide and i think that communication process needs to be protected not only in the sense that individuals are protected in that communication but also that the internet itself is protected as an institution that not private powers can control that institution and for instance facebook in india introduced free basics in a way to argue yes we bring now the internet to the people but having a hidden agenda behind and wanting to extend power on these basic institutions so i think it is really necessary that we have a new constitutional right what a powerful way to end this launch on presentation thank you so much i have a great having you here thank you