The added value of data protection within the framework of digital constitutionalism in Europe

This chapter discusses the contribution(s) of data protection law within the framework of digital constitutionalism in the European Union. The rise of the welfare state and of the surveillance state has challenged the focus of modern constitutionalism on limiting and balancing the power of the three branches of states. Because of increasing new power players and their agendas within state governance, the project of constitutionalism has progressively shifted from one primarily focused on setting the constitutional limits of power to one also concerned with guiding and channelling legitimate powers. Rights of a due process nature enshrined in the EU Charter of Fundamental Rights, such as the right to data protection, are emblematic of this development. These legal tools shifted the constitutional attention to procedures of power implementation and decision-making. This chapter examines the added value of the right to data protection and the role of independent data protection authorities within the context of digital constitutionalism in Europe. The due process nature of data protection supports the objectives of constitutionalism in the digital. Moreover, by applying both to public and private actors, data protection contributes to move beyond the public-private divide in line with the precepts of digital constitutionalism. As independent oversight institutions, data protection authorities offer another system of check and balance and layer of accountability in addition to traditional ones.