Basic Aspects of the Regulation of e-Government
Professor Fernando Galindo
Faculty of Law, University of Zaragoza
The Paper puts forward some proposals on the basic lines that democratic regulation of the phenomenon called electronic government should have, considering: 1) some expressions and regulations of the same produced both in the United States and in Europe and 2) the basic legal principles for the functioning of the State of Law.
Keywords: e-Government, e-Commerce, public administration.
This is a revised conference paper published on: 30 January 2006.
Citation: Galindo, 'Basic Aspects of the Regulation of E-Government’, 2005 (2-3) The Journal of Information, Law and Technology (JILT).<http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_2-3/galindo/>.
We can no longer talk about the beginning of electronic Government (e-Goverment); as it will be seen, it is already a fact. It exists and works, to a lesser or to a greater degree1, in practically all countries. As will be seen further, this is equivalent acknowledging that used as an auxiliary instrument, Information and Telecommunication Technologies (ITT) can further enhance not only the relationships that currently exist between public administrators but also those that exist between administrators and those whose rights they are tasked with helping to uphold: citizens and businesses.
In the case of electronic Commerce (e-Commerce), it is assumed that to a greater or lesser extent, the implementation of e-Government depends mostly on the degree to which the citizenry uses ITT. However, this is not neccessarily the case. Rather, the implementation of the e-Government in the case of e-Commerce depends largely on other factors, principally, the overall level of economic development in a given country, which is often measured in terms of the production and distribution of ITT, the number and type of companies using ITT and the number of people who know how to and can access by means of ITT the products offered by commercial businesses. Having said this, regardless of their degree of economic development, most countries today utlise e-Government in one form or another. In fact, most routine administrative and management tasks are carried out with the aid of ITT. This applies equally to the private sector.
In any event, what we are going to deal with here is the situation in countries where e-Government as a phenomenon exists and citizen access to ITT varies, sometimes to a considerable extent. The countries to be considered, specifically, are those whose Public Administration's have developed pages (frames of reference) that serve as introductions to various e-Government functions citizens can access and utilize2 . This article then further explores the ways in which those e-Government functions are currently being regulated, specifically, the extent to which regulatory frameworks reflect certain basic legal principles, for instance, that state law guarantee the participation of all in government, abide by the seperation of powers principle and respect basic human rights.
The discusssion below proceeds as follows. First, some basic definitions will be provided for words that are colloquially used nowadays, words such as e-Commerce, e-Government, and e-Democracy. Second, case studies are presented that examine the ways in which the United States and various governments of the European Union have incorporated e-Government functions into their respective public administrations. Third, the basic content of the regulations that deal with those e-Government functions are examined. Finally, those regulations are evaluated in terms of their compliance with the basic legal principles outlined in the paragraph above. Do those regulations safeguard the right of citizens to participate in the selection of political representatives? Are those regulations consistent with the seperation of powers principle? Lastly, do those regulations ensure respect for basic human rights?
It is advisable to differentiate between the three expressions that are most consistently used when talking about ITT: e-Commerce, e-Government and e-Democracy. Defining the terms enables us then to specify what exactly it is we are referring to when we talk about e-Government. e-Commerce is simply the carrying out of commercial transactions using ITT as an auxiliary instrument. It is not, therefore, simply the carrying out of commercial transactions using the Internet. Recall, e-Commerce transactions can be carried out using Electronic Data Interchange (EDI), a communications protocol different from the Internet, which has been used for many years by companies around the globe. It is also possible to carry out such transactions using a fax or mobile telephone. Although manuals, treatises and papers on the matter, draw distictions between the e-Commerce transactions between peers, between companies and users, companies and and Public Administrations, and even between mobile telephones (m-commerce3), differences also recognized in law, generally speaking, economic transactions characterize all the activities that fall under the heading e-Commerce.
Turning now to e-Government, the term refers to the exchange of communications between the component parts of a public administration, also between users and companies and those component parts, with the aid of ITT. As in the case of e-Commerce, the use of the generic term ITT (rather than Internet) is intentional and appropriate: communications are carried out in the public sector using a multitude of possibilities that nowadays ITT offers. Take the example of the communications between existing police services in the major industrial economies: those services by neccessity are using a host of communication instruments other than the Internet. Certainly they utilize the Internet, but as in the case of e-Commerce, the important point to bear in mind is that the transactions that are taking place are facilitated by a whole range of technologies, not only the Internet. The expression e-Government also denotes that we referring to transactions not of an economic nature, in other words, there is no exchange of goods taking place, rather, those communications/transactions are of a public character and are aimed primarily at satisfying administrative needs and ensuring that govermental action promotes public or common well-being. In the latter case, by providing citizens with the means and opportunities to exercise their rights and duties (for instance, paying taxes) codified by law.
e-Democracy refers to the carrying out of queries, referendums and elections with the aid of ITT. Although related, it is important to differenciate between the terms e-Government and e-Democracy: queries, referendums and elections have a distinctly political character to them, more so than they do a governmental or administrative character. The discussion that follows maintains a distinction between the two terms and begins with an examination of e-Government and its regulation.
The governments of the United States and European Union are using, as much as they are able, ITT as an auxiliary instrument in order to carry out their obligations to their respective citizens. Unavoidable cultural changes to those societies are thus underway, ones virtually independent of the aggregrate number of registered ITT users within their respective jurisdictions. of the respective countries to be larger or smaller4. State, national, regional and local public administrations are all currently exploring the possibilities and responsibilities that accompany the increasing use of ITT. However, this paper will not explore the current ‘state of the art’ regarding the degree of e-Government's implementation in these countries. Rather, it will explore in the main the regulatory frameworks which shape their differing expressions of e-Government. But first, a cursory overview of the cases of e-Government that are found in those countries is provided.
The government webpages discussed below provide citizens with opportunities to contact public administrators and their offices and they also provide means by which those same citizens can exercise their various rights and obligations. Web pages that have been implemented by the following countries are analysed: Germany, Austria, Spain, France, Italy, United Kingdom and United States. Below, the pages are differenciated in terms of those that address specific sectors of the populace and those that address the populace more broadly.
The Spanish page, titled ‘Administración.es: el portal del ciudadano’ (Administration.es: The citizens site’), declares itself to be ‘the virtual meeting place between the citizen and the Administration’. The page can be found online at the following address: <http://www.administracion.es/>. The Ministry for Public Administration hosts the site, but the organization of the page's content and selection of link pages is the responsibility of the General Sub-management for Administrative Simplification and Programmes of Attention to the Citizen and the General Sub-management for Technological Programmes of the State Secretariat or Public Administration6.
As is common for this type of page, the ‘website’ is an instrument for accessing pages created by national, autonomic or local Administrations, who, with the aid of ITT, render various services according to profiles selected by users. Generally, the page caters to three types of users: citizens, companies (business people, especially new business people) and public organisations (civil servants integrated in organisms and entities of the Public Administration). Depending on the profile selected, the information and services offered varies.
Citizen users can view queries made by workers, students and families. They are also provided access to general information regarding grants, usual processes and public employment. Companies are provided with content on basic business practices and procedures, for example, how companies are created and how legal tender is collected. Public organisations are provided content on training, government projects and the organisation of the various components of Public Administration. Apart from Spanish, the pages provided can be accessed in Catalan, Basque and the Valencian language. Additionally, there is an international website that can be accessed in English, French and German. All the pages provide links to other relevant Spanish websites7.
The French page is called 'Public Service: the French Administration Site'. The page is located online at the following address: <http://www.service-public.fr/>. The Ministry of Public Functions and Reforms in the Estate is responsible for the page, which is coordinated and updated by the Government General Secretariat by means of the Agency for the Development of the Electronic Administration and the Government Information Service. As in the Spanish example above, the French government identifies users according to three user ‘profiles’: private users, professionals and citizens. Private users are provided with information andlinks that can help them to exercise their rights relative to issues of employment, teaching, training, Europe, family, justice and health. Professionals are provided with business information regarding the creation of companies, fiscal matters, international issues, aid, and human resources. Lastly, citizens are provided with general information on the functioning and institutional structure of the sectors comprising the Public Administration. Only private users have access to pages in other languages: Spanish, German and English.
The United States page offers services to citizens, companies, federal civil servants and and non-profit organisations. The 'U.S. Government’s Official Web Portal’ is titled ‘FirstGo.gov' and is located online at the following address: <http://www.firstgov.gov/>. The General Services Administration of the United States is responsible for this page, which is updated and managed by the Citizens Services and Communications Office and the Federal Citizen Information Centre. The page provides citizens with links to a wide-ranging array of services offerred and information on issues such as subsidies and grants, consumer protection, visas, national defence (provision of military services), education, employment, health, taxes, science and technology and electoral procedures. Companies and non-profits are referred to pages that offer guidance on matters such as contracting with governmental agencies and departments, tax payment, salaries paid to employees and workers, administrative licenses, social security files and mercantile registers. Extensive information is also provided through the page to federal civil servants, on subjects such as the purchase of products and services, the calculation of retirement pensions and expense, supplementary training courses and government savings plans.
The services offerred are generally of two types: broad-based generic services and services provided to specific groups. The former includes services relating to geographical information, disaster management, police networks, firemen, public health, births and deaths, on-line grants, electronic identification for on-line transactions, state subsidies and recreational activities. The latter includes services that relate to inter-governmental cooperation, tribal governments and employees of state and local public administrations.There is also a Spanish language website called ‘FirstGov en Español. Información y Servicios del Gobierno de los Estados Unidos’. The page is locate at the following address online: <http://www.firstgov.gov/Espanol>. Information found on the page differs somewhat from that provided on the English language website. For instance, the four main user profiles are general users, business users, foreign users and users who have recently arrived in the United States.
Links are provided through both language sites to pages which cater to those speaking a number of other languages.
The pages of the United Kingdom, Germany, Austria and Italy do not feature user profiles like the pages just discussed. However, in spite of this, the content they provide is very similar, as will be shown.
The United Kingdom's page is located online at: <http://www.direct.gov.uk/>. The page is the responsibility of the ‘Cabinet Office’ Electronic Government Unit, a Ministry which, amongst its other functions, is dedicated to supporting administrative changes and the functioning of government. The name of the page differs from those above: 'Directgov: The place to turn to for the latest and widest range of public service information'. Access to information is not provided according to profiles, rather, the page and its contents are addressed to the entire population. The initial page is divided into four broad sections. The 'Information For' section provides 'Information, advice and support for different groups of people'. The 'Information About' section provides, 'The information you need, listed by topic'. The 'Quickfind' section provides, 'Tools to find what you need to know on this website and over 2000 other public sector sites'. Finally, the Newsroom sections provides, 'News, statements, publications and announcements from across the UK government'.
The public administration page for the German government is entitled: ‘Modern State, Modern Administration’. It is found online at: < http://www.modernerstaat.de/>. The page is directed at all type of users and is maintained by the Home Secretary. Topics are explored on the site by clicking on one of the following headings: Modern Administration Management, Reform of the Bureaucracy, E-Government, International Activities, Departments, Presse and Services. Generally though, the information on the homepage deals mostly with the German government's effort to implement and develop a modern administration.
The Austrian Public Administration's site can be accessed by visiting <http://www.help.gv.at/>. The page billed as ‘your official aid’ is the responsibility of the Federal Chancellery and provides access to the Public Administration's various offerings regarding life situations (births, marriage, deaths, lost and found objects), legal denominations (laws, authorities, taxes, elections) and institutions (Universities, learning). Users will also find there pages drafted in Czech, Slovakian, Hungarian, Slovenian and Italian.
The Italian site, called ‘The citizen’s site’, can be found online at: < http://www.italia.gov.it/>. It is the responsibility of the Italian Ministry of Innovation and Technology.The two main options on the site are ‘Life events’ and ‘The A to Z of the Administration’. The latter option provides an alphabetical listing of the main institutions of the Italian public administration. The ‘Life Events’ option provides access to subject matter regarding the following: having a baby, studying, working, transport, military service, buying a house, family life, paying taxes, traveling abroad, living a healthly lifestyle, practising sports, cultural activities, helping others and pensions. The third option on the page - ‘Your Guide’ - provides additional information on food, life, art and culture, the military, the law, physical disability, Italian institutions, education, employment, civil service, social policies, health and welfare, citizen safety, sports and free time, taxes, state titles and means of transport.
All the pages discussed above are ambitious: they aim to introduce users to numerous administrative functions now carried out via the Internet. Additionally, the information the pages contain (including links to other pages) is both highly varied and abundant. However, despite all of this, in all the examples cited above regulatory changes have, on the whole, not kept pace with the technological changes currently revolutionising the interactions between citizens and their governments. Two examples suffice to illustrate the point. The first is taken from Spain, as its regulatory approach exemplifies the general European trend regarding these matters. The second example is taken from the United States.
To briefly recapitulate before moving on to the examples below, the previous sections illustrate the fact that the use of ITT by public administrations in the United States and European Union is widespread. Citizens in both regions routinely carry out processes, send requests and meet their public administration obligations using ITT. But are the regulations governing these interactions sufficient? If they are not, why is this the case? Are regulations in the United States and the European Union similar? If not, where do they diverge? These are other matters are addressed in the sections that follow.
As is the case generally in the European Union, the Spanish government does not specifically regulate the various e-Government functions it performs. Rather, what is specifically regulated are the procedures which facilitate the interactions between citizens and sectors of the public administration. For example, tax declarations that can be carried out with the aid of ITT are governed by general guidelines that also apply to more traditional tax declarations, whether or not those declarations relate to personal or commercial taxes. Or consider the case of Notary Publics and Property Registrars. Using ITT, they can quickly exchange information regarding property sales between individuals and businesses, however, their digital interactions with one another are still regulated by the same legislation that applies to more traditional informational exchanges between Notary Publics and Registrars. Likewise, when Spanish courts make use of new digital technologies as auxiliary instruments in the courtroom, old and well-established procedural laws must be followed, ones guaranteeing that certain essential rights are protected at all times. Finally, the publication of all governmental resolutions (on the web or otherwise) is governed by Royal Decree 208/1996, which regulates the use of administrative information and citizen attention services.
However, as in the case of the protection of personal data and the use of encrypted communications, there are provisions which specifically regulate the use of ITT. Included in this category of regulations are laws governing the use of intellectual and industrial property by citizens and governmental bodies. To reiterate, what does not specifically exist at present are regulations only governing services which fall under the heading e-Government, which is not the case in the United States.
In the United States, as in Europe, there are regulations governing the ways in which federal, state and local officials can utilise ITT. Although to date, there is no generic regulation pertaining to the protection of personal data. Interestingly though, unlike the lack of regulation in the case of e-Commerce, at present regulated only by voluntary codes of conduct, e-Government in the United States is regulated. In fact, George Bush, on 17 December 2002, enacted the 2002 E-Government Act. In the act, e-Government is defined in the following way:
‘(3) ‘electronic Government’ means the use by the Government of web-based Internet applications and other information technologies, combined with processes that implement these technologies, to —(A) enhance the access to and delivery of Government information and services to the public, other agencies, and other Government entities; or (B) bring about improvements in Government operations that may include effectiveness, efficiency, service quality, or transformation.’ 8
Since the act was signed into law, emphasis has been placed less consistently on 3(A) than 3(B), the wording of which includes a number of expressions usually found in economic discourse: words like effectiveness, efficiency, service quality, and transformation. The president's speech on the day the law was enacted indicated early on the priority that would be given to 3(B):
'Today I have signed into law H.R. 2458, the ‘E-Government Act of 2002.’ This legislation builds upon my Administration's expanding E-Government initiative by ensuring strong leadership of the information technology activities of Federal agencies, a comprehensive framework for information security standards and programs, and uniform safeguards to protect the confidentiality of information provided by the public for statistical purposes. The Act will also assist in expanding the use of the Internet and computer resources in order to deliver Government services, consistent with the reform principles I outlined on July 10, 2002, for a citizen-centered, results-oriented, and market-based Government '(underlining and emphasis added).
The President’s will, consists, therefore, of the following:
- Ensuring strong leadership of the information technology activities of Federal agencies;
- A comprehensive framework for information security standards and programs; and
- Uniform safeguards to protect the confidentiality of information provided by the public for statistical purposes.
In order to put into effect the President’s political will, the act establishes three organisations:Management and Promotion of Electronic Government Services, the Office of E-Gov and theChief Information Council. The Management and Promotion of Electronic Government Services, executive organism of an economic character, is led by the administrator of the Office of Management and Budget's (OMB) office of Electronic Government and has as its objective: ‘to provide overall leadership and direction to the executive branch on Electronic Government (E-Gov) initiatives’. The administrator reports to the OMB Director, who provides the ‘resources needed for Federal Information Systems and recommend changes in E-Gov strategies and priorities'.
The E- Gov office has the following functions:
Promoting innovative uses of information technology by agencies, particularly initiatives involving multi-agency collaboration, through support of pilot projects, research, experimentation and use of innovative technologies;
- Overseeing the development of an integrated Internet-based information system by agencies and assisting in overseeing that agency E-Gov activities have adequate security; and
- Establishing policies to support Information Technology (IT) standards for interconnectivity and interoperability for categorizing Federal electronic information, and for computer system efficiency and security.
Note that in contrast to its approach regarding e-Commerce, the Congress of the United States decided that certain Internet safety issues needed to be resolved by an institution with regulatory powers. Besides solving Internet weaknesses regarding the safety of communications, the E-Gov Office also has an important role to play in the setting of standards. Prior to the office's creation standards were drafted largely from the proposals of the ITT industry.
The Chief Information Council (CIO) is the last organism the act created. It consultative and policy drafting roles to play and is comprised of representatives of the offices previously mentioned and other administrative organisations from federal, state and local levels. The CIO is tasked with the following:
- Developing recommendations on Government information resources management policies and requirements;
- Sharing experiences, ideas, best practices and innovative approaches related to information resources management; and
- Assisting in the identification, development, and coordination of multi-agency projects to improve government performance through use of IT.
The E-Gov Office's achievements and advances are listed on the webpage ‘ E-GOV. Powering America’s future with technology’. The page has four main sections: Federal Enterprise Architecture, Information Policy, Presidential Initiatives and CIO Council. It is maintained and managed by the OMB and can be found online at the following address: <http://www.whitehouse.gov/omb/egov/>.
Which of the two models is more appropriate? In the section that follows, the American model will be evaluated in terms of its agreement with certain basic principles, for instance, respect for private property and legal principles including the seperation of powers and the right of all citizens to participate in the formation of their own governments. All parliaments and governments have to respect, in the enactment of laws and in the application of governmental regulations, rights and procedures that are constitutionally protected. In this respect, the policy adopted by the United States regarding e-Government, centered as it is on the approval of the legislature, is consistent with the principles cited above. The European model is also largely consistent with those priciples, however, it falls short to the extent that it does not specifically regulate e-Government functions. In the absence of such regulations, there is a greater risk that the services provided to the public are overly technology/business-influenced: the risk generally encountered whenever greater emphasis is placed on the economic as opposed to the democratic or participatory aspects of laws shaping the regulatory environment. In this regard, how the situation develops in the US will no doubt be of interest to European policymakers, who will likely eventually enact laws specifically regulating e-Government functions, but must ensure that when doing so they promote both citizen and consumer participation in the shaping of the policies and standards eventually adopted 9. While American law on e-Government does promote the union of laws and standards and recognises differences between two types of rules ( the first ones drafted in accord with the principle of the division of powers and the second ones in accord with the interests of pressure groups10 ) , citizen/consumer participation in the drafting of those laws for the most part is not contemplated.
e-Government exists and needs regulation. This is so because a world aided by ITT must nonetheless comply with the basic tenets of democracy and the principle of the separation of powers. The problem is all the more pressing considering the fact that, at this moment in time, ITT is enabling (for instance, via mobile telephones) practically all citizens access to e-Government applications, and they do not neccessarily need to know how to use non-friendly tools such as computers in order to utilise the virtuality offered by ITT. However, the regulatory process in practice must not simply take into consideration the interests of citizens, it must provide those citizens with an opportunity to participate in the very processes that lead to the adoption of laws and policies that impact their lives. Regulators must provide a public service to all citizens.
1 There are various degrees of applications: the simple web page of an informative nature, the possibility for requesting information, the possibility for the Administration to reply and the possibility of a real interaction carrying out actions or procedures.
2 The selected countries are not the only ones that have developed these systems: the selection has been random: to illustrate the various possibilities to carry out common accesses to applications.
3 With the expression we want to highlight that the economic transactions are carried out using the mobile telephones.
4 The Commission has made numerous political declarations. See a good abstract of the consequences of these declarations in: ALABAU, A., La Unión Europea y su política para el desarrollo de la Administración Electrónica. Tras los objetivos de la Estrategia de Lisboa, Fundación Vodafone, Madrid, 2004.
5 Electronic Government is not the same as electronic Commerce: Governments are forced to rule all citizens, regardless of their technological culture.
6 Thus is included in the legal notice of the page.
8 H.R. 2458, E-Government Act of 2002, § 3601. Definitions. Signed into law, Public Law No: 107-347, by the U.S. President on December 17, 2002.
9 Those occupied in establishing new systems do not seem very democratic; they are apart from the division of powers as they establish organisms far from the citizens, characterised by their technical knowledge. See on this, for example: LESSIG. L., The future of ideas, Vintage Books, New York, 2002, p. 239.
10 There is much confusion in the practice in spite of the different sense of both types of rules: those approved by the Parliament have an infrastructure requiring its compliance. The standards, on the other hand are approved and put into practice as they work, and companies accept this practice. The election procedure of the authors of the laws is clearly different from the election of those who draft standards: the first process is democratic; the second one is not so strictly formal: it depends on the will of the companies and the research centres and the approval or the consent of the companies.