Designing e-Government

Edited by J.E.J. Prins, 2d ed. (The Netherlands: Kluwer law international, 2007)

Reviewed by John D. Gregory*

(2007) 6 Canadian Journal of Law and Technology No. 2

Electronic government has developed more slowly and less uniformly than its more mature relative, electronic commerce.  Though the two e-phenomena share certain problems (satisfying writing requirements, authentication, determination of time and place), e-government has a number of distinctive characteristics and different issues that challenge its proponents in practice and in law.

Professor Corien Prins of Tilburg University in the Netherlands has a long-standing interest in these challenges.  She helped organize a colloquium in 2000 on international perspectives on the legal and practical developments in this field, the results of which were published as Designing e-Government.[1]  Several years (and a number of other publications) later, a similar event[2] offered her an opportunity to assemble material for a second edition of the book.  Parts of the new work present an overview of e-government from various aspects; the other parts review the implementation of e-government in several countries.  Some are updates of chapters of the earlier collection; some are new to this volume.

A common theme throughout the work is the attempt to define e-government.  The contributors find a common core – electronic transactions with the public and the use of electronic communications within government itself, sometimes referred to as electronic administration – but expand beyond that, if at all, in different ways.  Electronic “engagement” is sometimes proposed, either overlapping with or separate from electronic democracy and electronic consultation.  The impact of electronic technology (generally called information and communication technologies, ICT, throughout the book) on government regulation is described for some countries.  Sometimes civil society organizations are included, sometimes they are not.

Within this range of definitions, the contributors cover many particular uses of information technology: e-publication, e-procurement, e-filing with government and with courts, electronic petitions, and e-voting.  National, regional and local initiatives are described.  Some are pilot projects, some are mature, though all seem in evolution.  No one pretends to have a final picture of what e-government can offer.

The texts in this collection offer a mix of practical and legal analysis.  Some start off describing the legal barriers to e-government and how the barriers are being removed, then continue to the actual effects of the changes.  Others begin with the goals of e-government, and later describe the legal adaptations necessary to achieve the goals.  Others yet go back and forth between administrative initiatives and the laws that support or impede them, and the politics of their interaction.  Thus in some countries studied, the challenges of e-government can be seen mainly as legal, and in others mainly as social, cultural or administrative.

The legal issues that most resemble those presented by electronic commerce are the most readily handled. Some countries have covered them in a single statute for both public and private legal relations.  Others draw more of a distinction between public administration and commercial relations.  In many, administrative law must be developed differently.  As the chapter on Germany notes, the legal requirements for e-government are more demanding than those for e-commerce.  The use of ICTs in business can be justified by efficiency gains, “whereas efficiency is merely on[e] of several relevant aspects within e-government.”[3]  Governments need to be more mindful of fairness, formality (to prove fairness and to maintain the public archival record), security, and even constitutionality in designing the legal framework for electronic relations between state and citizen.

Some of the laws that touch e-commerce have more profound implications for e-government.  The chapter on Italy says that the legislation for digital signature is “a fundamental pillar for the implementation of e-government”, but “it is too rigid and demanding for private business.”[4]  Information security is important to public and private sectors, but government has wider responsibilities in this area, up to and including national security, so the rules for dealing with government are often stricter than within business transactions.

The law of privacy is a frequent example in these texts as well.  Though most countries require private actors, or at least businesses, to protect personal information, the rules for the state are more rigorous.  The amount of information collected can turn e-communication into e-surveillance.  The desirability and the means of producing a national identity database is relevant to several authors.  

At a higher level, the practical impacts of e-government can require a reorganization of internal government functions in order to better serve the citizen and be responsive to public demands.  The spread of information and the ease of feedback push the state away from hierarchical relationships towards networking, i.e. a more horizontal organization.  This evolution may require changes to administrative law concepts of authority and accountability.  If the process for making decisions changes, then the rules may also have to change about who makes them and what kind of action formalizes their binding nature.

The opening chapters of the book give an overview of e-government practices, laying out different perspectives that should or can be taken into account in understanding their current state and their potential.  Lenk and Traunmüller[5] review four key perspectives: that of the addressee – focusing on the citizen/government interface; that of the process – standardizing e-communications; that of co-operation – making the non-standard relationships work; and that of knowledge – managing the essential asset of the information age.  How the use of ICTs to enrich these aspects of government will change the structure of government is, for the authors, an open question.  They acknowledge the possibility that simpler access methods may merely hide the continuing complexity of the governmental structures behind the portals. They mention in conclusion the legal values that existing structures serve, notably the rule of law.  Changed structures will have to satisfy these values to be sustainable. 

The following chapter[6] reviews the role of voluntary organizations in “web-enabled ‘public spaces’”, showing how a selection of English advocacy groups has evolved their relations to the public and to the government by electronic means.  To date, the authors find good use of the web for information, co-ordination and fund-raising, but less clear operation for legitimizing the organizations or providing public accountability.

The final overview piece[7] touches on portable and interactive technologies in e-government.  The impact of mobile communications on citizen access and equality is reviewed, and the possibilities of control canvassed relatively optimistically.  Nevertheless the chapter is admittedly speculative; there is much more talk of potential than of actual use.  It raises the issues that are likely to arise in the future as the technology spreads into e-government.

The book then turns to country studies: two for the United States and one each for Canada, the United Kingdom, Germany, Italy, Denmark and the Netherlands.  These chapters are rich in detailed description and analysis, and together show the variety of approaches taken to the application of ICT to government.

The first American analysis[8] focuses on three particular areas of interest: making court records available to the public online, and the impact such access has on privacy interests; fulfilling the detailed requirements imposed on government agencies to solicit public comment and publish what they hear in “rule-making”; and the risks of electronic surveillance and threats to privacy.  The author concludes that “there is nothing especially new about the relevant legal issues.”[9]  The important process is figuring out how the known rules apply to the new situations. 

The second U.S. chapter[10] surveys the legislation supporting federal and state programs in the framework of the policy directives first stated in 1993.  The federal focus has evolved in recent years to the internal processes of government institutions, in part because of the different economics of electronic technologies since 2000.  A quick look at state legislation is followed by case studies of state initiatives.  All in all, the states are more “citizen centric” than the federal government nowadays.

The Canadian analysis[11] is the longest and arguably the most comprehensive study in the book.  Within the continuing theme of the impact of a networked world on public law, Professor Trudel reviews questions of government services, government organization and the values of governance in the new relations between administration and citizens.  “In government composed of networks, law’s role is to regulate rights and duties related to episodes in the information life cycle.”[12]  He looks at e-government policies, principally those of the federal and Quebec governments, then turns to the legislative reforms adopted across the country that touch both commercial and public communications.  The chapter addresses the key challenges of protecting personal information while maintaining the strong interest in identification systems.   It continues with examinations of electronic filing, authentication, document retention, and access to documents held by public bodies.   

The author sums up with a fascinating canvass of the high-level challenges of analysis in this field: “epistemological” – new ways of thinking about problems, including privacy, trust and integration; and “methodological” – how to audit e-activities to manage the risks.  He concludes that “the basic paradigms of administrative law in general, and of personal data protection in particular, have to be reworked.”[13]

The United Kingdom[14] launched e-government initiatives with a view to better governance and more open governance.  Over the course of a decade, the emphasis has fallen largely on delivery of services, however, and not on e-democracy.  Many of the most innovate and successful initiatives have been local rather than national.  “[R]ather than using formal legislation, policy documents with targets are published, and posts are created which have responsibility for these targets.”[15]  Secondary legislation, i.e. regulations and other statutory instruments, are widely used for legal issues.  It is noted that privacy is one of the key current legal issues presented by e-governance.  Thus the Data Protection Act of 1998 is one of the key legislative drivers, along with access to information legislation.  The author also notes that direct electronic communication between the Prime Minister and the population can undermine the role of Parliament in debating political issues, which affects traditional legal roles and could weaken democratic structures.

The German experience[16] has been almost exclusively with electronic public administration, not electronic governance.  The legal regime for e-administration is said to be in good shape, but public acceptance or uptake is much less.  The chapter discusses several federal initiatives, including online portals for government departments.  Discussion of legal issues focuses in particular on digital signatures, much used in submitting official documents to government.  The degree of security needed for such signatures in most dealings of citizen to state is open to debate. 

Italy has had challenges in harmonizing central and local legal regimes.[17]  A number of national regulatory agencies have provided coordination.  The author says that the only way to make the decentralized structure work was by using ICTs.  Coordination was applied to interconnection standards and then to digital signatures, in support of the integrity and authentication of electronic documents.  The operation of the Italian public key infrastructure is described in some detail, as are the electronic identity card and methods of promoting secure communications.  A final lengthy section details local administrative initiatives, their impact on different sectors of activity, and their suitability to be adopted in other localities.  Much attention is paid to the transferability of such initiatives, to economize resources and to optimize standardization.

The Danish chapter[18] says that e-information is the most developed aspect of e-government, with e-transactions much less common and e-participation experimental only.  A number of policy studies have been done, there as elsewhere.  One of the legal challenges is to decide whether any citizens should be required to deal with government by electronic means.  The government for its part has undertaken to deal electronically with those who wish to do so.  Questions of privacy, identity and security remain crucial, along with electronic authentication. Problems with electronic voting are dealt with in more detail here than elsewhere in the book.  New Danish legislation is now being analysed with a view to removing barriers to digital administration in its implementation.

The final country chapter deals with the Netherlands.[19]  Here too, privacy has been an important element of the legal regime.  In addition, a national authentication service has been established.  Efficiency of e-government communications is on the agenda, for example to ensure that key data need be provided to the state only once.  Efficiency is seen in the Netherlands as elsewhere as sometimes the enemy of privacy.  The chapter describes the principal statutes that support e-government, many specific to government and to electronic communications, though some (privacy again, and access to information) are media-neutral and apply offline as well as online.  Archives encounter particular problems with electronic records.  The author recaps the key legal areas to indicate the main questions for future work in each.  She remains concerned with the digital divide, the implications of personalizing government services to individuals, and the shift of initiative from citizen to government that seems to result from e-government, at least in the delivery of services. On the latter point, she does not seem to share the general optimism of most of the authors that e-government will lead to citizen engagement and (presumably) empowerment.

Professor Prins sums up the collection of essays with a comparative analysis of e-government across borders.[20]  It is clear from the country studies that different economic or political histories will affect the implementation of e-government.  E-Government is a tool to realize policy choices, and policies differ from place to place, particularly as one moves away from mere provision of information. The degree to which e-government can be promoted by legislation also varies.  A question in many countries is whether the same law can apply online as offline.  The frequent answer is “often but not always”.  She concludes that “legislative reform alone is not a guarantee for the successful development of e-government.”[21]  Education is needed, and an appropriate evolution of the technology environment in society itself.  That evolution may – though has not in many of the countries studied – promote “a new state paradigm” that will “change the very relationship between law and its object of regulatory focus: the public sector.”[22]

This is a very rich, ambitious and stimulating book.  Clearly e-government has many aspects that are being developed at different paces in different places, and not necessarily in the same direction.  A range of legal tools are being used, some to remove barriers, some to coordinate efforts of different actors, and some to solve particular problems.  The lessons from one jurisdiction for the next are not always clear, but comparisons are fascinating in any event.  The most fundamental challenges remain suggestions only: those that networked environments pose to notions of accountability and rule of law that have been conceived of for a hierarchical government.  Professor Prins and her colleagues – and their readers – have not finished their work…