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JILT 2005 Issue 2 & 3 - Changing Paradigms of the E: Communication, Governance and Learning

Changing Paradigms of the E: Communication, Governance and Learning

 

Professor Abdul Paliwala
Faculty of Law, University of Warwick, Director, Law Courseware Consortium and Electronic Law Journals, Consultant ICT, UK Centre for Legal Education
A.Paliwala@warwick.ac.uk

 

Abstract

This paper discusses ways in which paradigmatic changes in e-Communication and e-Governance need to be accompanied by changes in legal education. I use as an example, changes in laws relating to access and interconnection in electronic communications.

Keywords: e-Communication, e-Governance, e-Learning, e-Education, social cohesion.

 


This is a revised conference paper published on: 30 January 2006.

Citation: Paliwala, 'Changing Paradigms of the E: Communication, Governance and Learning’, 2005 (2-3) The Journal of Information, Law and Technology (JILT).<http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_2-3/paliwala/>.


1. Introduction

There is a co-incident interweaving of paradigm changes in the grand paradigm of what Castells has called the network society (Castells 2000). Paradigm changes do not produce uniform results – they produce ambivalent matrixes which can be exploited in different ways.

  • Convergence of e-Communication media provides the potential for universal access and interconnection on a global basis, thus promoting global social cohesion or alternatively promoting inequality and global marginalisation.
  • Such convergence provides the matrix for e-Governance, but with ambivalent possibilities of advanced democratic participation, on the one hand, or dysfunctioning disciplinary electronic social control, on the other.
  • Education not only has to actively engage with the paradigm changes, in order to promote greater awareness of ambivalent potentialities, but must take account of the global (and regional European) and national dimensions of those changes, also the social, economic and black letter law issues they raise. Furthermore, it should utilise e-Learning to promote an active understanding of e-Governance. Without such engagement, e-Governance education will result in technicist and dysfunctional understanding of the potential of e-Governance and tend to promote national, regional and global inequalities.

2. Social Cohesion: An Overarching Concept?1

This paper suggests that the concept of Social Cohesion can be the most important link between e-Communication, e-Governance and e-Education. Democratic governance in Europe increasingly requires an informed and participating community and e-communication performs a crucial role in this. E-governance education therefore needs to transcend techniques of e-Government and e-Communication and consider ways in which social cohesion can be promoted in a global communication and governance environment.

A variety of theoretical perspectives supports the development of policies which promote social cohesion. Thus Castells (2000, 1998) emphasises the importance of social and economic networks in his ‘Network Society’ and, in particular, the role of information networks. Social development today is determined by the ability to establish a synergistic interaction between technological innovation and human values, leading to a new set of organizations and institutions that create positive feedback loops between productivity, flexibility, solidarity, safety, participation and accountability, in a new model of development that could be socially and environmentally sustainable (1998). He suggests that in this society those who have access to communications technology are the winners and those without access face a spiral of decline. More significantly, arguments based on the concept of social capital emphasise the importance of social cohesion in governance in a way which is shifting the analytical agenda away from one based on a simple dichotomy between the market as good and the state as bad (Fine 1999). Bourdieu emphasises the concept of ‘connections’ between institutions such as families clubs and other social networks (1993, 32-3). Coleman suggests that ‘Unlike other forms of capital, social capital inheres in the structure of relations between persons and among persons’ (1990, 302). Putnam broadens these interpersonal concerns to national levels emphasising the nature of social capital in governance (Putnam 1993). Putnam goes the furthest in his emphasis on the link between social capital and good governance and to this extent has had the most impact on social policy while being the most controversial. In combination with another perspective, which sees information and communication technology as a ‘public good’, this would suggest that the aim of e-communications regulation has to be the promotion of social cohesion:

As a public good, information presents considerable challenges to the idealized neoclassical marketplace. Consumption of information is non-rivalrous to the extent that consumption by one does not significantly reduce the possibility of consumption by another (Gandy 1988, 30, See also Kaul 1999).

3. Paradigm 1: Convergent Communications

Convergence of communications media provides the potential of the universal free flow of information as a public good. The enormous development of global interaction at a variety of levels would not have been possible without the development of intense and effective communications especially in relation to the developed countries (Braithwaite and Drahos 2000, Ch 14). The European Union itself is a product and a promoter of interaction at the economic, political and communications levels. Developments in digital technology have resulted in increasing convergence between traditionally disparate forms of e-communications including voice telephony, sound and television broadcasting, interactive and on-demand content provision and internet based multimedia interactive and textual and data transfers (Gillies and Marshall 2002, 18). Such convergence has meant that all modes of e-communications are interlinked.

The transfer of such technical convergence to effective universal convergent delivery requires effective regulation. Yet, the convergence of technology has not necessarily meant easy convergence of pre-existing disparate regulatory agencies covering different areas such as telecommunications, broadcasting and information technology each with its own culture and history. A most innovative aspect of the EU Directives on Electronic Communications2 is that they take the principle of convergence as the starting point. How far this is taken in practice remains to be seen.

These global developments have been both accompanied and promoted by the liberalisation of the market in e-communications from largely state controlled monopolies to diverse and competing forms of business which are regulated by the state and, at the European level, by the EU. The liberalisation of the e-communications market including the new ICT applications has become politically accepted at the international level through the WTO3 and at the European level by means of various EU directives. However, the strongest push for ending of monopolies came initially from US business consumers who lobbied for competition leading to the initial deregulation of telecommunications in the US (Braithwaite and Drahos 2000, 336). Subsequently, the cudgels were taken up internationally by the US government on behalf of US business interests leading ultimately to the dissolution of state monopolies in other countries. A key factor has been US perception that accounting rates for international communications from cheap priced liberalised US ones to high priced non-US state monopolies led to an adverse balance of payments in telecommunications charges for the US (Braithwaite and Drahos 2000, 336).

However, an important issue in Europe has been the afterlife of previous monopolies in e-communications and broadcasting. While liberalisation has become accepted, the nature and level of influence of previous monopolies has been a matter of complicated negotiation in which both state national regulatory authorities (NRAs) and EU agencies have played a significant role. There is a further complication in that leading EU market players are also the former national monopolists. To the extent that they are restrained by competition, they might not become effective EU and national product champions in a new global market. This operates in a context in which it is recognised that the result of privatisations and mergers at the global level might leave only five or six dominant players in the world market (Sy 1999).

4. Paradigm 2: E-Governance

I prefer the term eGovernance to e-Government because governance is broader than government, it includes state as well as non-state forms of regulation and is open to paradigm changes in the way we are governed. Governance does not necessarily imply democratic governance, but can include it. The revolution in e-Communications has enabled e-Governance. Much of contemporary e-government is about the provision of government services. Nevertheless, these changes are not without fundamental implications. Firstly, do digitalisation of aspects of e-Government, such as intra-governmental communication, electronic provision of government information and services to the public and public participation in governmental activities (through electronic discussion fora or e-voting) involve paradigm change? In his interesting article for the Albarracin conference John Morison suggests that putting government online changes the configuration of government and raises constitutional issues. In particular, online governmental services promote single citizen portals which blur and reengineer traditional distinctions between departments and between central and local government with “little regard for the constitutional proprieties and relative competences of different branches and levels of government. Ideas of separation of powers, rule of law and basic principles of legality do not seem to have troubled the information systems engineers.”The danger arises from a confusion of goals of e-Government. Currently, despite considerable rhetoric, the underlying goal seems to be economic:

E-Government is an entirely business-oriented strategy to reduce costs and generate revenue by streamlining the delivery of citizen services. It operates parallel to and independent of the evolution of e-democracy, which receives little to no official support or funding (Noveck 2003).

While there are some attempts to promote e-democracy, these formal attempts tend to flounder because of their lack of systemic understanding of translating democracy to the E. The key to active participation on the internet is small concerned discourses among cohesive groups, but large government consultation websites are little able to deal with this. Froomkin suggests:

It might be that a multitude of subspheres of interlocking, cross-pollinating discourses would provide an environment in which an informed citizenry could revitalize the public sphere as a whole and engage in the creation of better, and perhaps yet more legitimate, rules at even a national level.

Yet, it may be that the E is bringing about paradigm change outside of the formal structures of government at national and international levels. E-communications are promoting a variety of governance structures including self-regulatory systems for the internet, collaborative involvement between corporations, NGOs, states and international governmental organisations which have the tendency to reconfigure the traditional structures of state and international society. At the national level, the intensity and range of instant day to day co-operation between government and a variety of organisations has been revealed in the email audit trails presented to the current Hutton Inquiry in the UK. At the global level, the intense co-operation between police forces in Interpol, between industry and the OECD in the abortive Multilateral Agreement on Investments would not have been possible without e-Communications. Neither would the concerted and well-informed approach of developing countries in the Cancun WTO meetings. Even more significantly, e-communications has enabled forms of social cohesion which have revitalised oppositional discourses which operate outside the traditional machinery of government. Would articulated public opposition to the WTO in Seattle, Genoa and Cancun have been possible without the internet? Would the power and influence of the pro-Euro establishment groups and media in the recent Swedish referendum have been overturned without the utilisation of the new media? The reason for their success is that they operate precisely at the level of small ‘interlocking, cross-pollinating’ discourses which is the true genius of the chaos of the internet.

5. Paradigm 3: Interconnection and Access

As we have seen from the above discussion, effective access to e-communication is key to socially cohesive e-governance. Changes in e-Communications and e-Governance as well as global privatisation have produced paradigm changes in the organisation of interconnection and access. In the era of change from state monopolies to privatisation, there are choices in the construction of the market, either in the promotion of unfettered competition, the development of European product champions or the promotion of effective national and global communication. In this context, social cohesion may be a significant basis for mediation of issues.

I have discussed these issues in greater detail in my Albarracin paper. In this paper, I would merely like to emphasise the key points as they affect e-Governance. At a technical level, the basic principle of interconnectivity is that e-communications users whether they are voice-telephone or computer-data users should be able to connect to another user (for example a telephone customer or an email address) or service (for example a website) even when this involves traffic from one carrier’s network to that of another (Kariyawasam 2001). In complex contemporary communications infrastructure, particularly on the internet, the connection may not just involve two operators but third parties which are used for transit as well. As Correa suggests (2001, 40):

A defining characteristic of all network industries, of which telecommunications is one, is that the value of belonging to or being connected to the network increases with the number of people on that network. This means that competition between separate networks is unlikely to be sustainable – the larger any one network becomes, the greater its advantage over the others.

The solution to this problem is for networks to interconnect, in effect forming one single network. While this is in the overall interest of society, if the market is characterised by one dominant network, it will be in that individual’s interest not to interconnect, in order to defend its position. Such interconnection is provided in the case of voice telephony by ‘interconnect agreements’ and in the case of the internet by ‘peering’ and ‘transit’ arrangements. The underlying objective of regulation is to provide a system which promotes smooth interconnection in the interest of the users.

In theory, in the absence of any regulation, the market would provide its own systems of agreements setting appropriate market rates for interconnection. In the real world, this is not the case. This is partly the consequence of the historical existence of monopolies which, even in the era of liberalisation, have considerable market power. More significantly, the existence of strong global and local players, even in new markets, means that regulation is essential. Lastly, there are the issues of social regulation under which an effective and efficient network is essential to promote social cohesion. Therefore regulation has to provide both the underlying duty to enable interconnection, to regulate the price structure so that the dominant operator cannot price the subordinate out of the market and similarly to regulate technical, environmental, safety and security standards so that the dominant operator can not use these to make connection difficult or the subordinate operator cannot use systems and equipment which threaten the overall smooth functioning of the network.

The underlying principles of interconnectivity in telecommunications are provided by the WTO Basic Agreement on Telecommunications of 1997 as part of the Fourth Protocol of the General Agreement on Trade in Services (Walden 2001). The WTO Agreement and Protocol provide that major telecommunications providers should permit interconnection at technically feasible points, on non-discriminatory basis, in good time, with transparent terms, at cost oriented rates and on an unbundled basis so that the buyer does not pay for unnecessary services (Kariyawasam 2001, 209).

The EU Directives on e-Communications attempt to translate these principles in an era of convergence. The EU has developed a regulatory framework which establishes a complex set of principles which provide:

a. rights of access and interconnection
b. permission of the market to enter into appropriate agreements
c. controls over strong market power (SMP) with rights of intervention by the NRAs
d. delegation of regulatory power to NRAs but with the control of principles and right of intervention to the EU. This is a vote for the principle of subsidiarity and is preferred to the establishment of a strong EU Regulation Agency.

A Commission Press Release (EU 2001) rationalises this as follows:

4. In an open and competitive market, there should be no restrictions that prevent undertakings from negotiating access and interconnection arrangements between themselves, in particular on cross-border agreements. In the context of open markets undertakings which receive request for access or interconnection should in principle conclude such agreements on a commercial basis, negotiated in good faith by the two parties concerned without any intervention by regulatory authorities. However, since end-to-end connectivity and interoperability of services for end users is a primary regulatory policy objective in the European Union, national regulatory authorities are empowered to intervene in a justified and proportionate manner to ensure this objective. Regulatory authorities in the European Union will otherwise only intervene when there is market failure in a particular market (e.g., no commercial agreements are reached). They may then impose proportionate access obligations, in accordance with the problem found, with regard to the undertakings determined to have significant market powers in a specific market. To this end regulatory authorities in the European Union will regularly undertake a market analysis review of relevant markets. They will withdraw any obligations imposed when a market analysis determines that markets have become effectively competitive.

The provisions thus attempt an innovative regulatory framework, based on a balance the power of the EU and the NRAs, which takes account of subsidiarity while promoting consistency in a market which is increasingly recognised as being global. Its major innovation is in covering convergent services. The main principle of operation is to impose a minimum of ex ante obligations – but encourage negotiation to take place. Where negotiation fails, or where the NRA perceives a need, especially where a market study defines the existence of SMPs, then obligations may be imposed.

In this respect, the approach based on an obligation to negotiate appears to be one which is reducing emphasis on direct regulation and providing for the market to regulate itself as far as possible.4 Flexible approaches for different markets would therefore mean that where a market is already highly competitive, there is need for very little intervention. On the other hand, where the market has effective dominance or other features which require intervention, there is sufficient power to intervene.5 Underlying this framework is a belief in the progressive application of competition policy to replace sector specific regulation as the market matures. However, if the ultimate aim is to provide sustainable universal end to end connectivity in the interest of social cohesion, too ready a reliance on the virtues of the market may not be the best approach. Much depends therefore on the way in which the Commission uses its powers to ensure the development of appropriate principles and an effective system of co-operation and the way in which NRAs implement them.

6. Paradigm 4: e-Governance Education

Changes in e-Communication and e-Governance affect paradigm change in legal education at three levels. Firstly, a whole new area of substantive law of e-Government is being created. Yet, even this requires a sufficient understanding of the ‘e’ in e-governance to enable a proper understanding of legal issues. Secondly, more significantly, as we have seen, e-Governance education has to take into account the paradigm changes in conceptual and constitutional issues. These are broad. Firstly, there are issues about the nature of democracy, separation of powers and rule of law as outlined by Morison and Saarenpaa. But more significantly, there are also issues about the redefinition of the nature of governance itself. This includes the nature and extent of self-regulation, the relationship between global and national agencies, the redefinition of relationships between state and civil society. Such redefinition requires a contextual approach which combines an understanding of the law in the context of the technical potential of e-communications and the socio-political-economy of paradigm changes in network society. Thus, an understanding of e-Governance law requires a sufficient breach of conceptual boundaries to enable an understanding that the law relating to access and interconnection is a fundamental part of the potential of e-Governance. But also, that the regulation of access and interconnection cannot be understood merely in the national context, but requires an understanding of Europeanisation and Globalisation.

This also enables the asking of questions about who should be the recipients of e-governance legal education. Law students are of course important, but there is a great need of continuing education for those already qualified. Significantly, it is also important for those who operate the technology of e-governance to be educated in the underlying legal and political issues, lest there is unthinking technocratic undermining of important principles of democracy. However, if a major change coming about in e-Governance is for a fundamental reorientation of the relationship between citizens, states and global entities, e-Governance education has to transcend the education of specialists such as lawyers, techno- and bureau-crats and encompass the education of citizens. Otherwise, we will be condemned to the dysfunctional e-governance which seems to be taking place everywhere currently.Finally, in the era of e-Communications, e-Governance education has to encompass e-learning. At a simple level, this is already taking place.

7. Conclusion

The internet has become an active tool of law students, especially in areas which involve the study of e-communications. However, at present, this is mainly as an information resource with course web pages which provide lecture notes and links to web sites. Yet, the nature of social cohesion in e-governance demands interactive and group learning. It also demands transcending the traditional institutional and national boundaries of legal education. Therefore, a vital need in e-governance education is for programmes which encourage interactive group learning. I can think of no better example of this than the Glasgow Graduate School’s Ardcalloch Virtual Town, where students learn actively in a virtual law firm environment. Another recent innovation which attempts to transcend the boundary between learning and doing is Noveck’s Unchat software (Noveck 2003). On an international level, there is need for more experiments of the type developed by my French colleagues at EDHEC Business School in France in collaboration with Warwick Law School.

Yet, here we confront the fundamentals of the digital divide. Democratic e-Governance has to be conceived on a global as well as local level. Yet, however universal the technical delivery of access and interconnection in e-communications may be, current market principles are insufficient to enable a delivery which would enable effective global participation in e-Governance, let alone e-Governance education.

Notes and References

1 I am grateful to Dr. Loraine Blaxter for her advice on the issue of social capital.

2 The five legislative measures of the new EU Regulatory Framework on Electronic Communications are: the Framework Directive (2002/21/EC), the Access and Interconnection Directive (2002/19/EC), the Authorisation Directive (2002/20/EC), the Universal Service Directive (2002/22/EC) and the Radio Spectrum Decision (676/2002/EC). The sixth relevant measure is the Directive on Privacy and Electronic Communications (2002/58/EC). For the documents see:
< http://europa.eu.int/information_society/topics/telecoms/regulatory/new_rf/index_en.htm>.

3 See the Basic Telecommunications Agreement annexed to the General Agreement on Trade in Services 1996. Available online at:
< http://www.wto.org/english/tratop_e/serv_e/12-tel_e.htm>.

4 In the US there have been strong proponents of an unregulated free market approach to the extent of proposing the abolition of the Federal Communications Commission (Huber 1997); on the other hand, see the more balanced argument of Sunstein 1995.

5 Correa 2001, 48 makes this point in relation to a similar approach adopted in the UK.

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