sou · GQB3112 · 2003-01-01 00:00:00 — An anthology produced by the IT of the Swed- ish ICT Commission Swedish Government Official Reports Table of Contents.......................................................................................... Part I: General ........................................................................ The Swedish ICT Commission ............................... PART II: In Search of a Perspective A Whole and its Parts .............................. Remunerative Gifts, Societal Development and Legal the Use of ICT Engenders Legal Problems – in Search of a Common Denominator........................................................... Lawmaking and IT: Reflections on the for New Concepts and Categories of Thought........................................................ Part III: ICT in Government and Administration.................................. Shaping the Future Public Administration – The Legal Perspective .................................................. Laws in a Flux ........................................................... Archives of the Future .............................................. Part IV: ICT in Commerce and Work ................................................... Contracting on the Internet – Trends and Efficiency, Innovation, and Transparency – The Future of Intellectual Property Rights................................................................ and Internet Trade ........................................... Bits or Balloons? The to Rethink Tax Concepts and Principles on the Internet................................................................. Freedom of Speech and the New Media .............. Self-employed – The Problem of Societal Development and Adequate Legal Concepts................................................................. Electronic Plumbing – the Part V: Security and Vulnerability......................................................... Protection of – But How?...................... Dealing with computer crime. Legislative Reactions to Computer Crime ............................................. Part VI: Legal Machinery Matters......................................................... Melting Pot Paradox of Structured Legal Sources via IT ............... Alternative Dispute Resolution – The Features and Courts of the Future .................................................... 1 The IT .......................................................... 2 References to documentary materials of the IT A recurring theme in the contributions to this anthology has to do with the nature of the relationships between law and ICT (infor- mation and communication technology). In a nutshell: are the re- lationships between law and ICT important and particular enough to merit special attention? Three reasons argue for an affirmative answer. The first has to do with complexity. The second with magnitude. The third with uncertainty. The complexity of ICT involves not only technical intrica- cies in a narrow sense. ICT has moved out from closed research environments and become a ubiquitous and flexible instrument for all kinds of information handling in society. Thus, it is neces- sary to take into account matters having to do with the design and operation of information systems, existing and possible applica- tions of ICT, including their effects and interdependencies, and conceptual issues having to do with the changing nature of in- formation processing. From this point of view, the study of law and ICT should be perceived not as a trivial affair but as a rather demanding challenge. It requires a broad outlook and, quite of- ten, expert knowledge of the increasingly intertwined world of law and technology. Magnitude, obviously, refers to the economic and practical significance of ICT in society. Briefly, we are dealing with a mega-technology capable of both creating and destroying mar- kets and, generally speaking, ways of living. This is the back- ground of the often quite loud calls for actions to do away with outmoded legal solutions – viewed as obstacles – as well as for actions to legally restrain and control the electronic environment Uncertainty (and its corollary curiosity), finally, provides good reasons for delving into the many issues that emerge as ICT gradually alters significant parts of societys infrastructure. We need to understand what is going on, preferably before conflicts and problems have surfaced. The legal system is affected – but in what ways and how deeply? The contributions to this anthology all seek answers to such questions. They do so in different ways and in different areas but they all reflect the work that since 1996 has been going on in the IT of the Swedish ICT Commission. of this work has always been: lets take a closer look, it may be worth it. This can also be termed the motto of the anthology. There are twenty-two contributors. They come from the Ob- servatory itself as well as from the network of experts that the IT has built up and consulted. The number could easily have been increased, but for limitations of space. The anthology is divided into six main parts. Part I, Gen- eral background, outlines the work of the Swedish ICT Com- mission and its IT . Part II, In Search of a Per- spective, discusses the area of law and ICT as a whole from dif- ferent points of view, setting the framework for the area-specific contributions that follow. Part III, ICT in Government and Ad- ministration, comments on certain basic issues of electronic public administration such as the citizens access to official docu- ments. Part IV, ICT in Commerce and Work, is broadly conceived, ranging from contracting and taxation on the Internet to matters of freedom of speech and self-employment in the new electronic environment. Part V, Security and Vulnerability, deals with two topics, viz how to shape adequate protection of personal data, and legislative responses to computer crime. It ought to be mentioned that the Swedish ICT Commission has done much broader work in the security area. This work has been reported on elsewhere.1 Part VI, Legal Machinery Matters, serves as a reminder that the interaction of law and ICT com- prises more than matters of substantive law. Briefly, there are numerous methodological issues linked to the use of ICT in the judiciary etc. A few of them are dealt with here. Finally, on behalf of the IT , I wish to ex- press my sincere thanks to all the contributors for their willing- ness to participate and also to , who has kept an eye on the language but is not to blame for any remaining blemishes. Chairman of the IT Information can be accessed at . The Swedish ICT Commission International comparisons have ranked as one of the most mature countries in terms of information technology – penetration of PCs to homes, the use of Internet, mobile tele- phones, broadband etc. A number of factors might help to ex- plain this. The early adoption of ICT in public administration, banking and industry made people familiar with computers at work and in their dealings with the authorities. Swedes also seem to have a positive attitude to new technology and are early adopt- ers. In the middle of the 1990s, more than of Swedish households had a PC. As all of them had telephones, Internet penetration soon became very high. Information technology was also used broadly in working life in general so most people met it at work. For a small country, has quite an interesting history in the field of computers and information technology, related to both hardware and software. In fact, in the 1950s and 1960s, was at the international forefront of both industry and R&D. Today, apart from , there are no real indigenous computer manufacturers in , although there are fairly broad activities in the field of specific ICT applications develop- ment. 2 public and political concern The use of computer technology in more and more areas of life gave rise to public concern. The new opportunities to perform cross-computations of different registers or databases already is the director of the ICT Commission since Febru- He is also the chairman of nology, a research institute, and was earlier the director of R&D policy at the . He has been involved in research on production systems and work organisation at , Swedish Metal Workers Union and has been the director of the Swedish Commission for Skills and Competence in Working Life. created in the public and private sector, prompted the concern for privacy which ultimately led to the worlds first regulation on the national level of computers and privacy. There was also growing concern about work conditions re- lated to the application of automatic data processing. This related both to the area of public administration and to the use of com- puter technology to automate manual work in industry. In the late 1970s particularly, that concern surfaced and led to a number of government-initiated commissions looking into various aspects such as regulation by law, matters of security, and effects on working life and productivity. Meanwhile, the economic reces- sion at the time prompted the oft-recurrent discussion about tech- nology-induced unemployment. There was a subsequent need for policy formation related to computers and society and a number of different policy commissions were formed, with representa- tives from politics, public administration, trade unions and busi- ness organisations. They were all links in a chain of which the ICT Commission is the latest link so far. 3 The formation of the ICT Commission The Internet concept ushered in a new era. The myth has it that prime minister at that time, , sent an e- mail to President in the in early 1994. That was an act of great symbolic import, inaugurating in the era of ICT as communication technology, as opposed to ICT as merely computer technology. We were no longer talking about stand- alone computers. No, we were talking communication, of which computers were only a part. Prime Minister set up an ICT Commission which included a number of ministers from his gov- ernment but also many high-ranking businessmen and professors from the universities. The aim was to explore the opportunities of the new technology and to deal with the downsides, if there were any. In a way the remit could be termed that of alerting society to the of a new future. The Swedish ICT Commission thus formed crowned its endeavours by publishing the book Wings to Human Ability. Some say that this book inspired the young generation to move to ICT as the land of opportunities – these were the people who created the huge number of start-up compa- nies in the Internet area. 4 The present ICT Commission The present ICT Commission, formed in 1998, is the fourth since 1994. Its mandate expires in 2003. In general terms one can say that the scope of the ICT Commission has shifted from the creation of general awareness of the opportunities of ICT to in- depth understanding of specific issues related to the use of ICT in society. The view taken by the Swedish ICT Commission of technological change is in a way rather mainstream, namely that the usefulness and acceptability of a technical innovation de- pends on its social and cultural context. In the Commissions view, it is fairly obvious that the present mismatch between aspi- rations and reality in productivity gains from ICT is primarily due to the technology being insufficiently adapted to social and organisational needs. So far, the development of the Internet has been dramatic and has posed a number of new questions. Generally speaking, the proliferation of ICT at work and in peoples homes has ex- ceeded all expectation. That implies major adjustments over time to the way in which people and organisations co-operate and co- ordinate their efforts. The obstacles to improvements and devel- opment are not exclusively technical. The counterforces are just as often legal, economical or organisational and are often a part of cultural habits and preferences. The Commission has thus set out to explore a number of so- cietal aspects of ICT implementation. In a number of areas con- sidered to be of prime interest, the ICT Commission has formed its own so-called Observatories, each comprising prominent ac- tors and savants in its particular area. There are six main areas of such ICT related studies, viz , Infrastructure, Informa- tion Security, Democracy and Citizenship, Learning, Knowl- edge, Competence and ICT and Growth. The legal aspects are numerous. They concern the pressure exerted by the fast spread of ICT use on existing norms and regu- lations. They also concern various more or less foreseeable de- mands for institutional changes that emerge from increasingly widespread use of ICT – not least the transition from simple, lo- cal use of computers to nationwide use of complex systems and platforms where ICT serves as the basis and the necessary pre- requisite. Since its work began, one important area for the Commis- sion has been the development of the communication infrastruc- ture. In 1999 the Commission published its vision of a future- proof IT-infrastructure.1 That vision was based on a comprehen- sive analysis of the technical and economical preconditions for an infrastructure that could accommodate steadily rising demands for transmission. Security and safety are also among the Commissions prime concerns. They may be regarded as aspects of the infrastructure and they touch upon issues such as privacy, redundancy in the fi- bre optic network system, and securing your own PC so that you are not a potential menace to the net. Presently, the area of ICT in relation to learning, knowl- edge, and competence is dynamic. The Commission emphasises ICT as a means for broad access to learning opportunities both at work and in other situations, at school and in everyday life. To reach the desired goals, new kinds of learning environments must be developed. The Commission seeks to support and accelerate this work. Gradually, more and more of the Commissions work is be- ing devoted to information as a fundamental resource in society. The development of tomorrows digital services presupposes the widespread availability of all kinds of information on the net. This means that considerable efforts are needed to achieve stan- dardization of both syntactic and semantic resources. The impor- tance of a transparent information infrastructure cannot be exag- gerated and concerns all areas of interest of the Commission, not least ICT and democracy and ICT and growth. To label its striv- ings, the Commission has launched the notion of Broad Ser- vices. Such services are based on three basic elements: (a) Ser- vices that are truly useful to a large number of citizens. (b) Ser- vices of a high value due to combined use of information from many sources. (c) Widespread availability of broadband commu- nication facilities. 5 The future of ICT policy? Starting with Government 1981/82:123 on a co-ordinated data policy, a number of computer- or ICT-related bills and pol- icy documents have been passed by the Swedish Parliament. Al- though very differently worded, they are rather similar in spirit and principle. The focus is rarely on technology itself, apart from In 5 years, at least to everyone, at no more than the cost of a monthly bus pass and with the possibility for everyone to choose between at least 5 operators at his or her access point. See: A future-proof IT infra- structure, SOU 1999:134. some fairly comprehensive R&D programmes. Today, numerous government agencies are responsible for different aspects of the public use of ICT. Co-operation with organs in the private sector is often vital. The efficiency of an overall ICT-policy is therefore highly dependent on the day-to-day work of many organs. From the point of view of the Commission, concerted actions and pre- paredness for swift changes are of the essence. The Commission can help by spotting problems at an early stage, by engaging it- self in future-oriented debates on the ICT society, and by explor- ing opportunities, obstacles and levers for future productivity and welfare gains. The assessment of policy in action is an important task, although policy formation is still the dominant mission. In its present work, the Commission has pointed to the need for a new phase in ICT policy formation with a focus on information as a general resource for the development of new, electronic or digital services of great value and benefit for society, industry, and individuals. policy be as prominent in the future as it is today? Or will the development and use of ICT be a mainstream activ- ity in all areas while not forming a policy area in it self? Much remains to be explored in the deployment of ICT in society. The effects of ICT use are not fully understood. Technology changes our society and ICT is now becoming a more powerful agent of change than ever before. That in turn underscores the need for a comprehensive social effort to assess, to understand, and to raise social awareness, which in fact is the present ICT Commissions prime task. The experience of the present period of change un- derlines the need for policy formation in the ICT area; the poten- tial for dramatic changes is still too great to make mainstreaming an option. 1 The background of the IT In 1994 the Swedish Government convened a commission to widespread use of information technology in as a means to raise the quality of life in the nation, and to enhance its ability to compete internationally. The commission, chaired by the then Prime Minister , issued its report in 1994. Two of the key areas treated in the report were and . Among other things, the report set the goal that the law must not unnecessarily prevent or complicate the use of information technology. On the other hand, basic demands for rule of law, information security, and personal data protection must be met. Information technology should be used to make it easy for the citizens to learn about and gain ac- cess to legal source materials. The social democratic Government elected in turned the commission into a more regular , with a secretariat and with tasks set out in a formal committee directive.1 The interest taken in matters of law has continued to be strong. Among other things, the Commission, in accordance with Government 1995/96:38, decided to set up an IT in . 2 The tasks of the IT The IT may be described as a sort of think tank intended to supplement the ordinary machinery for lawmaking is a member of the IT . is senior project manager at the secretariat of the ICT Commission. See presentation of the IT in 1. Committee Terms of reference Dir. 1995:1. This commission came to be known as the Second ICT Commission (chaired by Minister ). It has been followed by the Third ICT Commission 1996-1998 (Dir. 1996:46) chaired by Minister ,, and the present Fourth ICT Commission 1998-2003 (Dir. 1998:38) chaired by Minister (until October 2002. At present, the question of Mr. suc- cessor has not yet been decided). and, more generally, for legally oriented analyses of matters of law and IT. In other words, the aim is to support work in the and other ministries as well as work of central organs in the court administration system, in law enforcement, and so forth. Proposals from the Observatory are channelled through the Swedish ICT Commission and the Commission de- cides what actions are to be suggested to the Government. The Observatory has strived to establish itself as a national platform for discussions and studies in the field of law and IT. It has ar- ranged numerous seminars, workshops etc. and engaged experts to analyse and comment on various matters. The results have been presented in a report series which by now comprises more than 40 publications.2 3 The Observatorys work in practice The IT has three layers of participants. The core consists of sixteen members from the public and private sec- tors who meet regularly to discuss selected issues, listen to oral reports by experts, prepare reports to the ICT Commission, plan the work of the Observatory, and so forth.3 The second layer con- sists of persons with whom the Observatory has close working contacts over a short or long period. They may be employees of Government organs, scholars at universities, experts engaged in legislative committee work, etc. Such persons have often been commissioned by the Observatory to write reports on specific topics of interest. The third layer consists of professionals all over the nation who take an interest in the Observatory, study its reports, and participate in its open seminars and conferences. In particular, the third layer comprises a national network of legal scholars taking an interest in the field of law and IT. The area of interest covers both matters of substantive ICT law (such as the protection of personal data) and applications of ICT in the field of law. For example, the Observatory has ar- ranged a number of conferences on electronic legal information in and suggested actions and strategies in this field. Gen- erally speaking, there has never been any lack of projects or ideas. Quite on the contrary, the recurring difficulty has been to set priorities and coordinate the work of the Observatory with other organs. 2A listing of reports published by the IT will be found in 2. 3The members of the IT are presented in 1. From the outset, it was clear that the Observatory should avoid duplicating work done by other parties – legislative committees, for instance. The Observatory decided early on to try to look be- yond the present-day legal aspects of ICT and to engage in a le- gal futurology in a bid to dispel the criticism frequently voiced concerning legal backwardness. Summing up, the Observatory has sought to operate through a speculative, prospective consid- eration of new legal structures as an adjunct to the discussion of current law (lex lata) and argumentation for proposed changes etc. (lex ferenda). One can speak of lex ponderanda – a specula- tive, critical analysis of the law. This means that the Observatory has tried to stay ahead, to be proactive. However, this is easier said than done, considering the rapid changeability of ICT and its applications in society where the future and its uncertainties is never very far away. A typical example of the work pattern at- tempted can be found in the field of real estate law and data communications, where the Observatory, aided by experts in the field, has helped in structuring the issues and preparing the ground for an ordinary legislative committee (see further the con- tribution by below on electronic plumbing). Similarly, in the fields of access to official documents, protection of personal data, intellectual property rights etc., the Observatory has supplemented the work of legislative organs by preparing re- ports and arranging discussions on diverse topics. On the whole the Observatory has been successful. Negative opinions that existed here and there when its work began have faded away. Moreover, the IT soon became a model for the work of the ICT commission, and five other, simi- lar observatories have later been set up for other areas.4 The value of the Observatory work model has been proven in a num- ber of ways: It has showed itself flexible and easily adaptable to changing needs and upcoming issues. It has succeeded in bring- ing together theoretical and practical expertise on the national level and a useful knowledge base that has been tapped The five other areas are: Infrastructure, Information security, Democ- racy and citizenship, Learning and knowledge, Growth. These other obser- vatories have now concluded their work and only the IT will continue until the expected demise of the ICT Commission in 2003. by many interested parties.