Journal of Information, Law and Technology
Basic Aspects of the Regulation of E-Government
Professor Fernando Galindo
Faculty of Law, University of Zaragoza
This is a revised conference paper published on: 30 January 2006.
Citation: Galindo, 'Basic Aspects of the Regulation of E-Government’, 2005 (2)The Journal of Information, Law and Technology (JILT).
Abstract
The Paper puts forward some proposals on the basic lines that democratic regulation of the phenomenon called electronic government should have, considering: 1) someexpressions 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, regulation, information and telecommunication technologies (ITT).
1. Introduction
We can no longer talk about the beginning of electronic Government; as it will be seen, it is already a fact. It exists and works, to a lesser or to a greater degree[1], in practically all countries. As will be seen further on, this is the same as to acknowledge that the Organisms of the Public Administration can have relationships between each other in their usual work using the Information and Telecommunication Technologies (ITT) as an auxiliary instrument, and even the communication between the citizens or companies with the public organisms; this by the former requiring compliance with their rights, as well as the citizens and companies meeting their obligations with the latter, that are produced, or can be produced, with the ITT.
As occurs in the case of electronic Commerce, we could believe that in a greater or lesser extension, the implementation of the electronic Government depends on the degree of use of the ITT by the population in the specific countries to be considered. But this is not so, because in the case of the electronic Government the extension does not depend on the degree of use of the ITT by the citizens, as commented below.
The unavoidability of the electronic Government depends on the fact that even though the expansion in the use of the technologies is relevant for the so-called electronic Government, or what is the same, for the carrying out of commercial transactions with the aid of the ITT, as regards that the degree of implementation of electronic Commerce in a specific country has the limitations of the economic development features of that specific country: the number and type of companies implemented in the same, the technological development of the same, and the number of people that knows how to, and can, access by means of the ITT the products offered by these companies. On the other hand, the electronic Government, in the wide characterisation mentioned before, is real in any country, whatever the degree of economic development reached. This is so because nowadays the carrying out of any management, administrative or commercial task without the aid of the ITT at one point does not seem possible. This is so both in government and private organisations, as we all know.
In any event, what we are going to deal with here is the situation in the countries where the electronic government as phenomenon exists, in spite of the fact that the access to the ITT by the citizens is different between them.
The countries to be considered, specifically, are various of the European Union and the United States that have even developed pages served as introduction to their electronic government applications carried out by the Public Administrations[2], thus making it unnecessary for the users to have to look for the administrative service needed in Internet without an appropriate reference frame.
In the context described by these experiences, the present Paper attempts to ponder upon what type of regulation of the electronic Government would be in compliance with the basic legal regulation principles, referred to the fact that the action frame of the State of Law is characterised, as it is well-known, by the guarantee of the participation of all in the government, the application of the separation of powers principle, and a respect for human rights.
To deal with the issue the following will be tackled: firstly, some basic definitions that will enable us to know what we are talking about when we use expressions that are colloquially used nowadays, such as electronic Commerce, electronic Government, and electronic Democracy, the latter expression being very frequently used and related with the first two. Secondly, the specific contents and characteristics of the various examples of electronic Government existing in Europe and in the United States. Thirdly, the basic content of the regulations that deal with the electronic Government in Europe and in the United States. Fourthly, which regulations seem to better fit the Government principles characteristic of the State of Law, basically characterised by the safeguarding of the right to participate in the selection of political representatives, the separation of powers (legislative, executive and legal) and respect for human rights. And then the conclusion.
2. Definitions
It is advisable to differentiate between the three expressions constantly used when talking about the ITT, which have certain social relevance. The most characteristic expressions are: electronic Commerce, electronic Government and electronic Democracy. Given the frequent confusion on the same which occurs in practice, their definition is advisable in order to be able to know what we are referring to when talking about electronic Government.
The electronic Commerce is the carrying out of commercial transactions using the ITT as an auxiliary instrument. It is not, therefore, the simple carrying out of commercial transactions using Internet, as thetruth is that transactions can be carried out using EDI, Electronic Data Interchange, and a communications protocol different from Internet, which has been used for many years by companies. It is also possible to carry out such transactions using the fax or mobile telephones...
This is why we here take as generic reference for the reference of electronic Commerce, the carrying out of commercial transactions. This expression that seems to be fully defined it is not so: we have to take into account that in manuals, treatise and papers on the matter there are differences between the electronic Commerce between companies, between companies and users, between companies and Public Administrations, between users (peer to peer) or even between mobile telephones (m-commerce[3]). The traditional differences, acknowledged by the Law, that differentiated the mercantile relationships by the fact that, in the same, the commerce professionals taking part seem not to be taken into account in the definition of the various phenomena integrating the electronic Commerce since, as we have seen, those talking about them tend to focus on the subjects of the transactions, or even on the tool used, when talking about the Commerce carried out by means of the mobile telephone. It would seem that the economic transactions are the characteristics of the activities called electronic Commerce, if we wish to include this in all the types of electronic Commerce mentioned before.
The electronic Government would be the carrying out of communications between the Public Administrations between themselves, or between users and companies and the Public Administrations with the aid of the ITT. As occurs in the case of the Commerce, it is better to generically use ITT rather than Internet: communications are carried out in the public sector using a multitude of possibilities that nowadays the ITT offer. Let us consider, for example, the communications between the police services existing in a specific country: for many years said services have been using communication instruments between themselves when Internet did not exist. Additionally, as occurred in the case of the electronic Commerce, the ITT are not that important here, but the relations or transactions of the ‘electronic government’ itself, or what is the same: the Government.
In fact, the expression electronic Government indicates that we are not talking about economic transactions, but of communications or transactions of a public character, whose interest is not the exchange of goods, but the satisfaction of needs by the Administration with the citizens at their usual workplace, or the requirement of these to the Administrations of the Rights that the legislations recognise. The meeting of the obligations of the citizens with the rest of them by paying taxes, for example, should also be considered to be included within the expression of electronic Government. The generic expression expressed here is logical due to the fact that the Governments, or Public Administrations, carry out more processes following business character behaviour lines cannot make us forget that the objective of the governmental ‘actions’ is made up by the achievement of the public or common well being.
Some think that the so-called electronic Democracy has some relationship with the electronic Government. This is, in fact, the carrying out of elections with the aid of the ITT. We can also include the carrying out of queries or referendums in the expression for those cases or countries where the legislation contemplates that the opinion of the citizens is to be expressed with regards to the enactment of new legislations, or the change of the previous ones by means of direct intervention of the same.
These appreciations imply that said relationship between electronic Government and electronic Democracy does not seem correct: we need to differentiate both expressions as we know that the election of political representatives, or the approval of a referendum of a rule do not have a governmental or administrative character: they have a specific political character, consisting the exercising of the Right to chose, and be chosen, as political representatives that the citizens of democratic countries, or the starting of the ability of directly participating in the creation of the rules, in the case of the referendum.
The confusion can be due to the fact that the communication that is produced between the citizens and the Public Administrations, is an activity which could be considered as electronic Government, as it has a governmental character, can have as its object, for example, the expression of the citizens’ opinion of the creation of a rule, put forward by the governmental institutions: the executive power of an Autonomous Region, or even of a Town Hall. In the legal field it is known that this possibility is of the Administration of the State of Law, and of the principle of participation of the citizens in the decisions, which is a basic principle of the same. In many of the opinions expressed on this phenomena, coming from the technical field, it is erroneously believed that this participation of an administrative character can be considered as an activity of a ‘democratic’ character, transferring to an inappropriate field statements on democracy as a general will, permanently updated by authors such as Rousseau. But this is not, as we have said, the scheme of the functioning of the current democracies.
Due to the foregoing, our opinion is to maintain the distinction between electronic ‘Government’ and ‘Democracy’ in order to know that when we talk about electronic Democracy, the exclusive reference is to the political election of a periodical character in order to appoint the citizens’ representatives (in a Town Hall, in a regional Government, in the national or European Parliament) or to the creation of rules by means of a referendum, carried out with the aid of the ITT.
In any event, below we will concentrate on the study of electronic Government and its regulation.
3. Electronic Government Expressions
The Governments are using, as much as they are able, the ITT as an auxiliary instrument in order to carry out their obligations with the citizens. The unavoidability of the cultural change to the society of information or the society of knowledge is admitted, and for the same reason the dynamic role of the same that the Governments and Public Administrations have to comply with, without waiting for the number of the ITT users of the respective countries to be larger or smaller. These have been decisions adopted as an action policy of various Governments of the European Union[4], being implemented by the state, national, regional or local Public Administrations in compliance with their various possibilities and responsibilities.
The objective of the present Paper is not to express the ‘state of the art’ regarding the degree of implementation of the electronic Government in a specific country: this would need studies and work of the kind that are called ‘Observation points of the information society’. Here we are going to limit the expression of the contents of some of the significant cases of electronic Government that can be found in various countries of the European Union and in the United States. This is coherent with the circumstances, as already mentioned, that the objective of the brief presentation that will be mentioned below is restricted to the inclusion of significant data on what an electronic Government is considered, in order to consider, in a following section, the essential objective of this Paper: to refer to the regulation ordering the expressions or contents of the electronic Government.
Based on the above, web pages will be analysed, implemented and updated by the Governments of various countries, that pretend to be, apparently, something similar to a single counter by means which the citizens, using their computers, or sometimes their mobile telephones, can contact the Public Administrations or claim from them the compliance with their Rights or to comply with their obligations. In this way, surfing the Internet is made available to the citizens, which, as it is known, has difficulties for those who are not used to the same[5].
Below we will consider the contents of the first ‘web’ pages of the Governments or Public Administrations of Germany, Austria, Spain, France, Italy, United Kingdom and United States, which have as their objective the introduction to the citizens of the services rendered by their respective Public Administrations. We will differentiate between the cases of those who take into account various user profiles, as it is the case of Spain, France and the United States, and the cases of those who make offers of electronic services addressed to all the population: this is the case of the United Kingdom, Germany, Italy and Austria.
Profiles
The most common generic approximation is that referred to show various ways of accessing the Administration depending on the various user types or profiles.
Spain
The Spanish page, titled ‘Administración.es: el portal del ciudadano’ (Administration.es: The citizens site’), declares to be ‘the virtual meeting place between the citizen and the Administration’. The link is the following: The Ministry for the Public Administrations is the institution responsible for the same. Its contents, organisation and selection of links of the pages have been selected and/or coordinated by the General Sub-management for Administrative Simplification and Programmes of Attention to the Citizen, and by the General Sub management for Technological Programmes of the State Secretariat or Public Administration[6].
The page is prepared for three types of users to access its contents: Citizens, Companies: that is, business people (especially new business people) and public organisations: that is, civil servants integrated in organisms and entities of the Public Administrations. Depending on the profile selected the information offered and the links to the various services is different.
As it is common is this type of page, the ‘web site’ is an instrument for accessing the pages created by the national, autonomic or local Administration, where the services rendered with the aid of the ITT to each of the mentioned user ‘profiles’ are included. Generically summarised: these profiles refer to services rendered by the Public Administrations to the citizens and companies (Citizen and Company profiles) and the Public Administrations to other Administrations (Public Administrations profile).
The specific content of the profile referred to the citizens refers to the queries made by workers, students and families, and includes general information, grants, usual processes, public employment, life episodes, for example. The content referred to companies mentions procedures such as the creation of companies, single counter for companies, tenders and other information. The content referred to Public Administrations refers to organisation, training, projects...
We should mention that the page can be accessed, apart from in Spanish, in Catalan, Basque and Valencian language. There is, additionally, an international website that can be accessed in English, French and German. This site is an access page to certain Spanish webs of interest for those using any of the mentioned languages[7].
France
The French page is called Public Service: the French Administration Site. The page is: The Ministry of Public Functions and Reforms in the Estate is responsible for the same, 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.
It offers three ‘profiles’: private, professionals and citizens. The first profile provides forms, processes and useful addresses to exercise the rights relative to: employment, teaching, training, Europe, family, Justice, Health... the profile referred to professionals accesses information of a business character on the creation of companies, fiscal matters, international issues, aid, human resources... the profile called citizens refers to the exercise of the politic and institutional life.