From the Panopticon to the Datapoint: Operational power and governance by design Torres Ponce, Mariano Enrique operational power operational constitutionalism default jurisdiction practical intelligibility operational power operational constitutionalism default jurisdiction This article introduces a conceptual category intended to capture the logic of contemporary technological authority without relying on inherited metaphors or remaining at the level of declarative critique. The notion of operational power designates a form of authority that emerges when technical environments preconfigure the space of possible action, incorporate behavioral feedback, and ground their legitimacy in the continuity of their functioning. Under these conditions, governance no longer operates primarily through articulated norms but through systems whose effects are realized directly in the organization of conduct. From this starting point, the article argues that a constitutional response limited to the language of principles is no longer sufficient. Effective constraints require translating normative commitments into properties of design and operation that can be examined, contested, and verified. The analysis therefore develops a set of material guarantees aimed at restoring a human interval and meaningful control, articulated through practical intelligibility, traceability that allows causal reconstruction, reversibility with bounded costs, and a proportionality that adapts dynamically to risk and impact. The article further outlines an independent verification method conceived as part of the system lifecycle rather than as a posterior formality. This method relies on counterfactual auditing guided by design parameters, stress and failure testing under realistic conditions, and the preservation of auditable archives that enable third party review. To make these guarantees operational, the framework proposes falsifiable metrics that allow abstract concerns to be translated into observable thresholds, including default adherence, reversibility gradients, effective opacity, and behavioral entropy reduction. The argument is completed by an institutional standard applicable to both public and private contexts, addressing procurement practices, separation of functions, formal recognition of the normative force of default settings, and forms of interoperability and portability that preserve contextual integrity. Taken together, these elements offer a way to limit governance by optimization without arresting innovation, while reopening a space for judgment in environments where personalization and default configurations increasingly govern in fact. Técnica Administrativa ISSN 1666-1680 2026-04-15 Technical note htm 250203 www.cyta.com.ar/ta/article.php?id=250203 en TI TI

Everyday life is increasingly organized within digital environments that shape relevance, routes, and temporal rhythms without asserting visible authority. In this context, explicit coercion recedes and optimization takes its place, while legitimacy shifts away from command toward experienced utility. Technical systems configure the space of action through predefined parameters and default settings that operate in practice as governing forces. Consent becomes procedural, often reduced to repetition, and personalization absorbs conflict by aligning choices with preferences that the system itself has progressively formed.

Critical scholarship has offered persuasive diagnoses of this transformation, yet it largely remains at the level of description. Panoptic metaphors and analyses focused on data extractivism identify symptoms but do not establish verifiable thresholds or remedies capable of being enforced. Law continues to operate in a declarative register while contemporary power is exercised through technical realization, which renders guarantees ineffective when they are not translated into features of design and operation. What remains insufficiently articulated is a category that distinguishes assisted automation from governance by design and that enables the authority of technical environments to be subjected to empirical scrutiny through falsifiable standards.

This article advances the notion of operational power to capture that distinction. Operational power arises when legitimate action is parameterized in advance through default settings that channel conduct, when behavioral feedback recalibrates the environment without explicit notice, and when legitimacy is grounded in the smoothness of functioning rather than in justification. Only when these elements converge does governance by design acquire constitutive force. On this basis, the article develops material guarantees intended to restore a human interval and meaningful control without arresting innovation. Normative principles are translated into verifiable conditions of practical intelligibility, traceability sufficient for causal reconstruction, reversibility with bounded costs, and a proportionality that adjusts dynamically to risk and impact. The contribution is explicitly theoretical and normative in scope and does not claim to report original empirical datasets.

An independent verification method is proposed as part of the system lifecycle rather than as a terminal form of control. Guided counterfactual auditing intervenes in defaults, frictions, and latency windows in a controlled manner to assess the channeling force of architectural choices. Failure, stress, and context change scenarios are examined to identify points at which reversibility erodes or consent loses substantive meaning, with particular attention to vulnerable populations and boundary conditions that average validations tend to obscure. In operational terms, metrics such as default adherence or reversibility gradients can be implemented by observing how frequently users remain on preconfigured paths when exit entails nontrivial costs, and by measuring the time, effort, or loss required to undo an automated outcome once it has taken effect. A minimal auditable archive preserves model versions, data routes, relevant system states, and chains of custody so that contested decisions can be reconstructed by third parties. These falsifiable metrics transform philosophical diagnosis into testable hypotheses, including default adherence as an indicator of environmental jurisdiction by design, reversibility gradients as a measure of effective undoing, effective opacity as the distance between declared behavior and reconstructable operation, and behavioral entropy reduction as a signal of narrowing trajectories without proportional gains in legitimate ends.

The proposed institutional implementation realigns incentives and redistributes capacities for control. Public and corporate procurement can require auditable archives from the outset, activation thresholds for safe shutdown and degradation, and provisions for third party verification under confidentiality. Governance structures separate design, operation, and supervision, assess effective human intervention rather than nominal oversight, and activate a right to deliberative latency that enables pauses, escalations, and reasonable disconnections. Formal recognition of default jurisdiction reflects the fact that defaults govern in practice and therefore require reinforced justification, non-discrimination testing, symmetric alternatives, and documented rationales. Interoperability and portability oriented toward performance equivalence prevent personalization from hardening into an exit barrier. The framework also incorporates a competition policy expressed in operational terms, addressing self-preferencing in ranking and relevance systems, integrations that close ecosystems, and access to interfaces and auditable logs for research and competitive scrutiny.

The contribution of the article is twofold. It offers a conceptual framework that distinguishes assisted automation from governance by optimization and an operational standard capable of translating principles into tests and remedies. Its originality lies in specifying material guarantees and falsifiable metrics that render limits enforceable in systems that modulate conduct through architecture rather than through explicit mandates. The legitimacy of technical environments cannot rest on functioning alone but must be supported by verifiable constraints that preserve a human interval and meaningful control. Where governance operates through optimization, guarantees must take the form of requirements of design, operation, and proof that any independent party can audit. Under these conditions, law recovers practical relevance in real time, innovation is shaped by responsibility, and operational power is contained without extinguishing the creative capacity needed to design freedoms rather than efficiencies alone.