Background

E-government has enjoyed an extensive development over a short recent historical period. With the starting point late in the last century, it has continued to evolve in countries with different legal culture, history and economy. As demonstrated by numerous international studies, e-government has been actively promoted in Arab States and African countries. It is thus obvious that e-government is becoming part of the civilization’s overall brickwork. The question is what e-government is from a legal perspective.

E-Government: Information Technologies and Law

The development of information technologies has changed the relationships in society and finally the nature of governance by becoming the driving force of a totally new stage in its evolution. The changes affecting public administration and government machinery as well as the forms they take to interact with individuals in the postindustrial period herald a new stage in development of the state generally called e-government. The process of its evolution is currently visible in a majority of countries worldwide.

The ongoing processes affect a number of aspects — such as technical, social, legal — prompting a need to develop comprehensive methods of study. No single methodology will produce a full picture of e-government and its development in the world of today. This makes a case for multidisciplinary approach which will allow to appreciate e-government from various perspectives. This approach has been used recently by different agencies to construct e-government development ratings worldwide¹A recent example is the survey conducted by the UN. It provides the most comprehensive picture of e-government development both in the world as a whole and across regions. See: UnitedNationsE-GovernmentSurvey 2018. NewYork, 2018. Available at: publicadministration.un.org (accessed: 20.04.2021).

However, no integrated approach is possible unless subject-specific ones have been developed. This paper deals with a legal approach to the study of e-government.

Being a multi-faceted phenomenon, e-government is hard to be defined in a straightforward way [Chissick M., Harrington H. (eds.), 2004: 4-11]. At the early stage of its development with mainly technical issues to be addressed, e-government was largely perceived in connection with IT technologies applied to public administration, only to give an excessively technocratic flavour to the whole set of issues. The term electronic conventionally means new IT communication channels available to public authorities and individuals. E.V. Talapina defines e-government as a new interactive form of relationships between the parties in public administration [Talapina E.V., 2003: 248].

E-government is related not only to the Internet but also other systems which help disseminate information (call centres, cell phones, third-party network), with new concepts (mobile government, or M-government), (ubiquitous government, or u-government) emerging along the way.

Technical regulatory provisions have undoubtedly become part and parcel of e-government. The establishment of clear technical interactions of government agencies between themselves and with individuals is becoming a major condition of e-government operations. However, it would be wrong to think of e-government as being tantamount to the technology behind it.

In fact, the problem of e-government has gone beyond technical issues, once IT technologies resulted in social changes. The access to e-communication systems and services becomes a question of law as long as the society perceives it as a personal right underlying government activities. It is about the right of access to information, e-communication networks and public e-services.

Obviously, at the current stage of development, the national e-government models gradually become subject to statutory regulation as law brings social values to them. According to a just remark by D. Schartum, researcher from Canada, “ICT tools are needed to support the application of legally grounded methods and to ensure proper safeguarding of legal, technological and organizational aspects” [Schartum D., 2015:23].

E-government is emerging amid the established legal, political and cultural traditions. It is explicitly related to the assertion of digital sovereignty, something that finally contributes to the emergence of national models endowed with specific features.

E-government takes shape as the society makes a transition to postindustrial development. The underlying changes are comparable to those which affected the public administration at the stage of transition from the pre-industrial to industrial period. As a point common to both cases, the government had to assume a broader regulatory role in economic development and expand its social functions. Where the state fully or partially abandons its functions, the transformation of society is protracted, often to the point of triggering a crisis.

However, in the context of information society the government does not have to change the governance tools as drastically as at the time of transition to the postindustrial society. Its current positioning is based on what was achieved in the past: it is assumed that e-government is essentially constitutional and social at a time. Moreover, e-government is promoted through the principle of separation of powers, with all the three branches — legislative, executive, judiciary — to be developed through the use of information and communication technologies.

Since e-government is just emerging, national constitutions still lag behind the ongoing processes. The constitutional basis of e-government is established by the constitutions adopted back in the 18th (US Constitution) and in the mid-20th century (a number of European countries). However, the 21th century constitutions gradually come to include the amendments reflecting the ongoing changes.

The Constitution of Russia was amended to refer to the competence of the Russian Federation the issues of personal, societal and state security with regard to the use of information technologies and digital data transactions (Article 71, para “m”).

As another example, the Constitution of Greece was amended to include the provisions on personal participation in the information society which essentially regulate new relationships between individuals and e-government despite that the latter is not explicitly mentioned. The constitutionally acknowledged personal right to participate in the affairs of information society is matched by the government’s duty of positive action to guarantee equal and active participation of individuals in the information society²“All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State, always in observance of the guarantees of articles 9, 9A and 19”. Constitution of Greece, Art. 5A.. The promotion of e-government for e-services and access to networks and information is thus an obligation of the state to take positive action for equal and active access to the information society for all.

The national constitutions gradually come to adopt the provision on personal data protection (Greece, Switzerland).

Thus, specific constitutional provisions emerge to govern the development of e-government, with the constitutional framework itself remaining essentially the same to ensure continuity with the previous stages of state development.

The transition to information society is actively promoted by the state which assumes the role of the IT system organizer in the public sphere. What is required from it at this stage does not amount exclusively to drafting new programmes: the environment for the development of information and communication technologies (ICT) has to be created as well.

To address the envisaged tasks, the state has to draft economic development programmes and concentrate financial resources. It is the state that determines the development of ICT, addresses the issues of standardization of technologies and of creating high-speed networks. In drafting programmes, the state should strike the right balance between technical and social issues (for example, to make sure that networks are accessible and affordable to people). In the context of information society, public access to IT technologies is a problem of major social importance. The state has to set up centres to ensure free access to ICT and Internet, as well as draft ICT-enabled education programmes.

So far countries have been searching for ways out of the current situation either by assuming the costs of public Internet access or drafting programmes for network access in public places by encouraging private investments [Holmes D., 2004:15].

Since the development of IT technologies requires a considerable amount of funds which cannot be fully provided from the public budget, countries define the forms of encouraging private investments. The costs serve to ensure public access to PCs including in publicly accessible facilities (post offices and libraries), create training programmes and centres for Internet literacy, with connectivity centres set up in places accessible to users. The information transparency of public authorities and provision of public e-services through the use of Internet could be improved without waiting for more users to come around, by creating a better environment, in particular, more publicly available points of access to government information resources.

Ensuring the Internet access is not only a matter of technology. This problem has a social and legal dimension of “digital equality” intrinsically related to social equality, including in terms of how the social status of different population groups is leveled off in the country. Any social inequality, including digital inequality, can considerably destabilize the normal functioning of society and public governance. Just as the welfare state is to guarantee social equality, e-government is to ensure digital equality, i.e. equal access of individuals to IT technologies. In the context of e-government, the access to information will depend on the share of population that can afford to use information and communication technologies [West D., 2007]. Moreover, it is obviously necessary to reduce the gap between various regions and population groups in each country regarding access to public networks and therefore to information on activities of public and municipal authorities.

Because of the social equality principle of access to government information resources and services, public authorities and local governments are obliged to use the methods of access affordable to all population groups.

Until the problem of ITC access for all is resolved, it is extremely important to provide legal guarantees of social equality in the context of information society. The principle of digital equality should not only be enshrined in the legislation but permeate the national law as a whole. This principle assumes the individual’s right to choose how information will be made available to him — either traditionally on paper, or electronically. It is this approach that is best to ensure social equality and stability.

The development of e-government is paralleled by the formation of its legal framework, with countries drafting e-government development strategies, adopting laws for security of personal data, data transactions and public data. This search for a national state model forces them both to revisit and review the traditional legal principles. Drafting new provisions is not a straightforward process. For example, the technological neutrality principle protected by law ensures the implementation of a variety of technologies. However, this is only one aspect of this principle. Its broad interpretation has stirred up the discussions of whether Internet providers should treat all users equally or may restrict the access of specific user categories. In the United States, the net neutrality was reviewed in 2017 when the Federal Communications Commission (FCC) “scrapped the so- called net neutrality regulations that prohibited broadband providers from blocking websites or charging for higher-quality service or certain content. The federal government will also no longer regulate high-speed Internet delivery as if it were a utility, like phone service”.³Kang C. Federal Commerce Commission Repeals Net Neutrality Rules. New York Times, 14.12.2017. Available at: https://www.nytimes.com (accessed: 26.06.2018) Thus, the FCC revoked its the net neutrality provisions adopted in 2015, whereby Internet service providers could not discriminate against any lawful content by blocking websites or apps, slow the transmission of data based on the nature of the content, as long as it is legal, create an Internet fast lane for companies and consumers who pay premiums, and a slow lane for those who don’t. Thus, while the net neutrality principle was reviewed, the issue has not been settled definitively. The search to define its content continues in other countries as well [Pitre S., 2018]⁴Available at: https://www.opengovpartnership.org/stories/net-neutrality-preserving-openness-of-government-northamerican-context (accessed: 26.06. 2018).

Without an adequate legal framework, as was rightly observed by Russian researchers, the statutory regulation of IT penetration in executive government will be reactive rather than anticipating, with recurrent costs required for adapting the established e-government framework to long expected provisions of information and administrative law [Sokolov O.S., 2007: 32-35].

Internationally, they constitute the basis for approaches to essentially similar issues such as personal data security, interoperability, safety, access to information and sovereignty⁵Tallinn Declaration and the eGovernment Action Plan of 6 October 2017. Available at:https://ec.europa.eu/digital-single-market/en/news/ministerial-declaration-egovernment-tallinn-declaration (accessed: 16.11.2021); Berlin Declaration on Digital Society and Value-Based Digital Government of 8 December 2020. Available at: https://ec.europa.eu/isa2/sites/isa/files/cdr_20201207_eu2020_berlin_declaration_on_digital_society_and_value-based_digital_government_.pdf (accessed:12.12.2021).

Instead of Conclusion

The current issue of the journal deals with the role of law in regulating new institutional and functional processes in public administration and organization of the government machinery. It draws on deliberations of the panel “E-Government: Legal Models in Russia and India” held as part of the XI International Conference “Law in the Digital Age” hosted in Moscow by the National Research University Higher School of Economics.

Actual questions of the understanding of platforms, through their shared properties of infrastructure and how the lines of differentiation are blurring in urban spaces are analysed in paper “The Emergence of Online Delivery Platforms as Capital, Culture and Code: The Changing Paradigm” presented by legal scholars from India Nabil A. Afifi and Reeta Sony A.L.

E.V. Talapina in the article “The Right to Informational Self-Determination: On the Edge of Public and Private» examines the right to Informational self-determination as human right to decide when and within what limits personal data may be disclosed. The legal protection of data is based on interactions of public and private.

The paper “State Regulation and Deregulation: A Case of the Communication Industry” by L.K. Tereschenko deals with the problems of statutory regulation of the communication industry. In the current context of building a new digital economy and reducing administrative barriers, a special importance is attached to how state regulation and deregulation correlate in the communication industry. The regulation of major sectors, such as the communication industry, should be up to the challenges of today.

N.A. Danilov demonstrates the development of E-government in different culters in the article “Transformation of E-Government and E-Governance in the Digital Economic”.

The problems of e-democracy and its constitutional brickwork are discussed in A.S. Lolaeva’s article “E-Democracy: A Constitutional Dimension”.

D.A. Shevelko explains the legal approaches trends to regulation of E-government in Russia in the article “Digitalisation in Russia: In Search for a Legal Model”.

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