sou · GQB3112 · 2003-01-01 00:00:00 — From a practi- cal viewpoint, this meant that for each country launched, local legal advice had to be obtained primarily with regard to three ar- eas: reviewing and commenting on the legality of the business model itself, reviewing all offers made to the public by the com- pany, and scrutinising the text on the site. In particular, this meant that local expertise had to be sought in respect of at least contractual law, marketing law, personal privacy/processing of customer data, and consumer legislation (if applicable). For each country, appropriate legal counsel had to be con- tacted and briefed about the company and its business model, be- fore proceeding to review the matters at hand, which further in- creased the costs. The fact that consumer legislation could differ substantially from country to country also added to the complex- ity, as it was difficult to determine to what extent local legislation would be considered if an individual agreement between the company and a consumer were to become subject to interpreta- tion or dispute. To illustrate, in many countries an agreement will not only be construed on the merits of its actual text and content, but will also be analysed with a view to the relevant legislation that may impact on the interpretation. The national implementation of EC directives further com- plicated matters, as there were substantial variations in the ensu- ing national laws. In the matter of the Direc- tive (97/7/EC), different countries chose to embellish the open re- turn period and added more time than the directive laid down. Consequently, it was not possible for a company to implement a single, uniform open return policy, as the conditions had to con- form to the preferences of the individual countries. Another ex- ample relates to the Data Protection Directive (95/46/EC), whose implementation was severely delayed in many countries. As it was also implemented in different ways in various countries, this meant that each country had to be analysed individually. Fur- thermore, local legislation would add layers of regulations, which had to be considered. Take for example, where the law on payment instruments has provisions of a far-reaching charac- ter in relation to the processing of personal data in connection with payments made through the use of credit cards. This meant that, even if a company followed the appropriate EU directives closely, it still had to make sure that the law on payment instru- ments were observed when certain data was processed or it would run the risk of finding itself in conflict with Danish legis- lation. Consequently, those companies wishing to take advantage of the simplicity built into e-commerce through the use of a sin- gle medium – the Internet – found (somewhat to their surprise) that there was no hope of relying on an equivalent legal model to simplify matters. On the contrary, in not one single instance was it possible to take a business model, have it translated and adapted to relevant EC directives and then put it to commercial use without further ado. As a side remark, it is worth noting than in comparison with the relative ease of launching a cross border e-commerce business in the , the present situation in Europe and the legal divergences offer a considerable disadvan- tage to any European e-commerce venture aiming at establishing itself in Europe. As reality dawned on the lawyers advising Internet compa- nies, the conclusion became evident. There was point in discussing any concept of cyber law, as it existed, let alone could be used to facilitate business for commercial ven- tures using the technique of the Internet. As for the legal matters that needed to be analysed in connection with these enterprises, they turned out to be cloaked in the habits of marketing laws, competition laws, consumer legislation, and many other legal fields, which on a daily basis would be referred to as traditional commercial and consumer legislation. Summing up, there seems to be in the way of either IT- law or cyber law to provide tailored IT-legislation or even legal harmonisation to constitute a new legal field set to join the ranks of other established areas such as tort law, commercial law or law, just to mention a few. However, this should not de- flect from the fact that there remain many legal matters relative to IT and electronic services and products that require the atten- tion of IT-practitioners, but also scholars reaching into cyber- space. In the world of the Internet anything is possible, but clear legal structures evade those who choose to practise law within it. ICT in Government and Administration In this paper we will discuss some of the legal problems con- nected to the reforms under way in the Swedish administration. We will also touch upon some more general problems relating to law and IT, but we will keep the administrative perspective throughout. Our aim is to give our view of some of the short and long- term legal effects of the use of IT in the administration. The dis- cussion is not intended to be complete in any way, merely to highlight some aspects that we find particularly interesting. We will describe the administrative development from three perspectives that are all related to the use of IT: technological, democratic, and organisational change. We will then examine some legal aspects of these change processes. 2 Government in transition The fundamental goals of the Swedish administrative policy are Democracy, Efficiency, and the Rule of . These goals are set out in the action programme in the Service of Democracy, laid down by the government in the year 2000. 1 All administrative initiatives shall serve the fundamental goals of administrative policy. These goals are not entirely separable. They are constantly interacting in political and administrative practice. Sometimes they all pull in the same direction. At other times, they collide. Several development initiatives are currently under way in the Swedish administration, many of them related to IT. is a member of the IT . tation in 1. is an adviser at the for (Statskontoret), working primarily with ICT and ad- ministrative reform. He has also served at the ICT Commission and at the . start by giving an overview of some of them, before we examine their legal implications. 3 Technology, communication, and organisation Computers, telecommunications and other forms of information and communication technologies have been widely used in the Swedish administration for several decades. The administration has been an early adopter of new technologies. Traditionally, IT has been seen merely as a tool for perform- ing traditional processes in traditional organisations, only more effectively. It has been argued that this may not be an entirely adequate description. Be that as it may, the ultimate aim of the current reforms is a fundamental reshaping of government. The major initiative in administrative development is called the 24/7-agency.2 This programme has been initiated by the gov- ernment and is being carried out by the Agency for Public Man- agement. According to the 24/7-program any governmental ser- vice that can be provided by electronic means, shall be provided electronically. The individual citizen shall be able to contact all governmental agencies by electronic means in order to obtain governmental services, make applications, and initiate govern- mental actions, independently of time and place. It does not, as the somewhat ill conceived term 24/7-agency may seem to im- ply, mean that government officials are expected to be available around the clock. Traditional means of communication will be maintained along with the electronic communication channels. This means that there will be two parallel systems of communication with the government: by electronic means and by traditional means. The latter includes mail, personal calls, telephone etc. The concept of 24/7-agencies includes both communication between agencies and communication between government and citizens. A new communications infrastructure must be devel- oped for communication with citizens as well as for the exchange of information within the government, between agencies and so on. This new technical infrastructure will, for example, comprise means of communication between agencies, methods for security and identification, and solutions for long-term documentation. The 24/7 Agency: Criteria for 24/7 Agencies in the Networked Public Administration (Statskontoret 2000:41), available at . The development of the 24/7-administration involves all aspects of administrative policy, such as technological, legal, and organ- isational aspects. As mentioned above, although IT is often perceived merely as a tool, it does in fact change the organisations into which it is introduced. In many cases this change is unexpected, unintended, and possibly unwanted. Within administration this could be the case, for example, when systems that were originally designed for commercial organisations are introduced in government. In , this may earlier have been the case in government. The disadvantage of the past is now the goal of the future. One of the goals of the 24/7-program is to change the organisation of gov- ernment by using IT. Governmental agencies of the past were drainpipe-agencies having or no contact with each other. Governmental agencies of the future are expected to collaborate with other agencies. The goal is that the citizen, in each situation, should only have one point of contact with government. Back- stage, the different agencies are expected to co-operate and ex- change information. The citizen will then be presented with the result from the single contact point, even when several agencies have in fact been involved in the process in some capacity. This one-stop shop will necessitate co-operation between agencies at the same level of government, as well as between agencies at dif- ferent levels of government. The inevitable impact of technical infrastructure on the or- ganisation of the government is mainly a long-term change, but some aspects are clearly visible also on the early stages in the development. 4 New forms of democratic interaction Many people have great hopes of information and communica- tion technologies fundamentally changing and improving democ- racy. Some see it as a chance to realise the ideal of direct democ- racy, including every citizen in every decision. Others have more modest hopes, ranging from better-informed citizens casting votes in traditional elections to continuing dialogue between citi- zens and politicians at the local level. In , some experi- ments have been carried out at different levels of government. Some legal aspects of such experiments will be briefly related below. Without doubt, the forms of democracy and citizens par- ticipation will change. Consequently, the forms of government will change, and so will the forms of administration. It is too early to say how these changes will look. What we can say is that they are going to take place, and that they will have an enormous impact on the legal system. 5 Administrative law in transition Many rules in the realm of administrative law regulate aspects of information and information processing. Some rules relate to the information in itself, i.e. Rules on secrecy or per- sonal data protection are a case in point. Other rules relate to the communication, i.e. the form, such as rules requiring that a mes- sage be signed in order for it to have legal validity or status. In many cases, these rules were laid down without regard to IT or EDP (Processing). In some cases, there- fore, they seem to prohibit, or at least not provide for, use of IT. The law is often perceived as an obstacle to the desired techno- logical development. Whatever ones opinion on that score, there is no doubt that the development does pose a problem to the legal system and, not least, to the legal profession. In some cases, the legal infrastructure governing the administration has been dynamically adapted to the use of IT, one good example being openness and access to public documents.3 In this area of administrative law, regulation has been adapted through case law as well as legislation. The adaptation may not always have been very swift, but legal development has on the whole kept pace with technological development. In other areas, development has been somewhat slower, perhaps because the strain on the legal system has not yet been severe enough to force the system to adapt. One such area concerns forms prescribed by law, which will be further discussedPerhapsbelowthe. most evident and down-to-earth legal problems are those related to new forms of organisation and co-operation. Administrative law is modelled on the organisation of the ad- ministration and it refers to boundaries between agencies, be- tween levels of government, and between the public and the pri- vate sectors. This can cause problems when new processes are in- troduced that involve several agencies, perhaps at different levels of government. One example of an area where such problems oc- cur is secrecy. According to the Official Secrets Act (1980:100), information that is secret at one agency would normally not be secret when transferred to another agency. This and similar pro- See paper Access Laws in a Flux in this anthology. visions may be obstacles to the technologically and politically desired uses of IT. We will not explore the legal problems related to organisational changes here, but will eventually return to it af- ter having explored two other issues: forms prescribed by law and new legal documents. 6 Forms prescribed by law Many laws and regulations contain provisions on the mandatory use of paper communication. This can be the case when a signa- ture is a condition for the validity of an agreement, an applica- tion, or some other document. In Swedish law, these provisions are scarce in private law, but very common in administrative law. The most common provisions are those requiring an application or other communication to be in writing or to bear the signature of the originator. There has been some debate as to whether pro- visions of this kind can be satisfied when using electronic com- munication. Some claim that a message or communication is in writing as long as it consists of text. If so, an electronic commu- nication would meet the requirements that a communication must be in writing. Others claim that an electronic message can never be considered to be in writing, since writing must be traditional style ink on paper. In order to promote the use of IT and enable agencies to transform into 24/7-agencies, the has initiated a survey of all provisions of form in Swedish law. The aim of this survey is to do away with all unnecessary provisions, and to change provisions in order to allow electronic alternatives to sig- natures and other provisions for form. Some questions and prob- lems that have emerged in this project will be used here to illus- trate some more general problems and questions regarding ad- ministrative law and IT as well as law and IT in general. We will focus on signatures, as being among the forms most commonly prescribed by law, especially if taken to include sig- nature-like forms, such as stamps or seals. The signature is also of particular interest from the point of view of the clash between technology and law. The legal uncertainty is a particular problem in administra- tive law. In the areas covered by private law, it is in most cases possible to agree on the forms of communication. If the parties to a business relation of some kind are not certain that a provision in law permits electronic communication, they always have the option of contractual agreement to use it. They can also agree on what security measures to take, and how to allocate the risks. This has made it possible for the Swedish banks to communicate over the Internet with a large portion of their . Similar solutions for mass-transactions would be desirable in the admini- stration. This demands another kind of legal infrastructure than in the private sector. The administration should be ruled by law and it is not possible or suitable for the administration to rely on con- tracts when communicating with the citizens (cf. This means that the administration must rely on legislation. In this case, the law seems to be an obstacle to development. Seen from the technological point of view, the task of changing provisions of form to allow electronic communication is a trivial one. It is a security problem. The written signature is a security measure, and the task is to find out in each case what the security functions of the signature are. Then one has to determine how these functions can be performed by electronic means. This can be somewhat difficult, since the written signature does not have distinct functions such as the functions of the electronic signature. In fact, written signatures generally do not provide the same level of security as electronic signatures. From the techno- logical point of view, this is not a big problem, since it is possible to obtain at least the same level of security by electronic means as with traditional signatures. The problem is mostly a pedagogi- cal one: to persuade lawyers of the blessings of electronic com- munication and electronic signatures. Although this could be hard enough, it is still a far too su- perficial analysis of the task, which on closer inspection turns out to be much more delicate. The functions of the signature, be it analogue or digital, are far more complex than they may seem at first. The task therefore goes far beyond a mere comparison of technological security functions. These problems are not limited to the area of administrative law, but are relevant to all areas of law. Administrative law is an area where it is particularly fruitful to examine these questions. One of the most interesting aspects of the signature is its iconic function. This function transcends the technical functions of the signature. The signature is a well-known and powerful le- gal icon. Everybody knows that it means something special to put your signature to a document. It means that you accept and commit yourself to the contents of the document. It means that you are bound not only legally, but also morally, by the docu- ment. It means that you have reached the point of no return. It also communicates solemnity. It means that this is not just any ordinary message, but a document. This function is even stronger, of course, if the document is signed on ones honour, as in the case of tax returns. The iconic function cannot be analysed in technological terms. It is dependent on psychological, cultural, and historical factors. This function is probably present to some extent whenever a signature is used, but in some cases, it is explicitly intended. This is the case, for example, with contracts regarding real estate. The traditional importance of land ownership combined with the so- cial significance of habitation argues that it should not be too easy to alienate real estate. The provision for forms in this case also has a consumer protection aspect. These esoteric functions are central to the perception of government. In the case of applications and similar cases, the form prescribed by law is an aspect of the exercise of govern- mental power. When the citizen signs a document and submits it to the government, he performs an act of submission. The subject turns his fate over to the discretion of the sovereign. The form is a way for government to communicate power when approached by the citizen. Government makes similar use of symbols and icons to communicate power when communicating outwardly. The Prime Ministers signature under a law, the national coat of arms, an of- ficial seal – all these are signs of power. In fact, perhaps the most suggestive icon is the stamp. The stamp is the governments equivalent of the citizens signature. Only the stamp is imper- sonal. While the signature is a symbol of commitment, the stamp could be regarded as the symbol of the impersonal power of gov- ernment. These esoteric functions of the signature, the stamp and their equivalents are not that easily transferred to the digital envi- ronment. It is not possible to translate them into a new technical form, since they are unrelated to the technological security func- tions of the electronic signature. Perhaps these functions cannot be fully analysed or even understood, but they will definitely not remain the same when using electronic communication instead of paper. Even so, it will be necessary to adapt administrative law to allow electronic communication. We still have to realise that re- forming provisions for form is more complicated than a simple security problem. In a short perspective, the reform of forms prescribed by law is an enabling project. Its purpose is to remove obstacles to technological and organisational development. Nevertheless, it would be unwise to believe that the reform will not have more far-reaching consequences. In the end, it may prove to change fundamental aspects of the administration and of administrative law. 7 New legal documents By tradition, the administration is governed by laws, ordinances, and regulations, i.e. different kinds of legislation. The parliament passes laws, the government passes ordinances and individual agencies pass regulations. The ordinances must be founded on laws, and the regulations must be founded on ordinances or laws. All these different kinds of rules are in a positivist view aspects of the law. They are binding for the individual citizen, as well as for the governmental agency. Their legal status is well known and recognised. The government issues other texts of a legislative character. The status of these texts is sometimes less than obvious. Many agencies issue guidelines of different kinds. These guidelines are not legally binding on citizens, neither on the agency itself. Some of them, e.g. those of , have such an enor- mous impact that their status approaches that of law. Apart from these unilateral documents, the government and its agencies can also enter into contracts and other bilateral agreements. Thus contracts, though not governed by administra- tive law, are a part of the legal infrastructure of the administra- tion. The use of IT seems to promote the use of non-traditional legal or quasi-legal documents and texts. Some of these texts have a form that is quite different from traditional legal texts, for example spreadsheets used to calculate a subsidy. Other docu- ments are electronic translations of traditional semi-legal docu- ments, for example electronic forms. Still others are non-legal or semi-legal documents and texts that are well known, such as guidelines and policy documents. We will focus here on the use of the latter kind of documents. The increasing use of electronic documents could perhaps be called government self-regulation. In the private sector, self- regulation is often invoked as the proper way to regulate the IT environment. This may be so, although the arguments may not always be very convincing. For government, self-regulation would normally not be an option since, obviously, regulation by government would not be self-regulation. This could, however, be a suitable term for some new forms of documents with am- biguous legal status, issued by agencies. In the network environment, agencies tend to regulate their activities through documents that are neither regulations nor guidelines in the legal sense. Examples of such documents are policy documents related to the use of electronic signatures, for example so-called certification policy statements, CPS. In these statements such issues as liability and dispute resolution are regu- lated.