Scrutiny of Acts and Regulations Committee
Inquiry into Electronic Democracy
Discussion paper, October 2002
5.
Implementation Issues
5.1 Access, educational and social issues
The potential for electronic technology to strengthen our
representative democracy will only be fully realised when it becomes ubiquitous.
While this is likely to occur in time, there is serious potential for
some citizens to be excluded from participating in electronic democracy
initiatives.
Inequity in the take-up of electronic technology can create
a group of people who are unable to participate in electronic democracy.
At a minimum, this means that the full potential offered by electronic
democracy will not be achieved. However, it could also lead to the alienation
of some citizens. Alienation leads to disengagement from democratic institutions
and process, weakening social fabric as people feel unable to have any
say in decisions that affect themselves, their family and their community.
Government can address this problem by targeting programs
at the barriers that prevent the take-up of the new technology by people
in vulnerable categories.
Take-up factors
Three main elements underpin the take-up of electronic
technology by individuals:
Physical access requires equipment and connections that
can be costly. While access from home and work is increasing, many people
make use of public access arrangements.
Take-up also requires a certain skill level and involves
technology that some people find unfamiliar and difficult. Assistance
for users is required in the following areas:
- technical (‘how to’) information
- help to understand the possibilities
- technical support with problems and equipment.
While these areas apply to the wider issue of electronic
technology and not just to electronic democracy, the question of assisting
people to understand the opportunities and challenges that the technology
brings has particular relevance. If active and informed participation
by citizens is fundamental to a well functioning representative democracy,
then citizens need to understand what electronic democracy can achieve.
A lack of understanding has the potential to widen the gap between those
actively engaged in democratic processes and those who feel excluded.
Even if people have physical access and skills, they will
still only achieve satisfaction if they can find meaningful ways to use
them. This means that applications must relate to their practical needs.
Take-up of the technology will occur when these elements are in place
and individuals expect a net benefit from using it.
The three elements required for take-up apply to both individual
use of the technology or use by an individual as a part of a group. In
both cases, personal satisfaction is ultimately critical. However, the
requirements for satisfying each of the three elements may differ. For
example, if a group is involved, there may be different physical access
requirements than for individual access.
Potential for inequity
Experience shows that profound technological advances generally
involve all people in the community over time. In Australia, new technology
is generally taken up quickly by international standards.
Examples include television, video-cassette recorders, and
mobile telephones. The same trend is apparent with Internet access.
However, some in the community are disadvantaged by lack
of:
• access, including financial capacity;
• skills , including awareness; and
• applications that provide a compelling reason to participate.
They can be excluded from opportunities by circumstances
rather than personal choice.
As electronic technology is adopted broadly through the
community, the level of inequity will fall.
rovided the technology fulfils people’s personal needs,
this will occur whether or not governments intervene. However, Government
action can accelerate take-up amongst those facing barriers to adoption
and reduce the level of residual inequity after mass take-up occurs.
In the early stages, new technology tends to be taken up
by people who:
-
have information about it (awareness);
-
have access to the equipment and facilities required
to use it (access);
-
have the knowledge and skills to utilise it (skills);
-
have applications for the technology that provide benefits
to the user in excess of the cost (applications and content); and
-
can afford the initial capital investment and on-going
costs that may be required (affordability).
ABS survey results indicate that Internet access by adults
is strongly related to age, labour force status and income. Inequities
in the use of the Internet are likely to be concentrated amongst people
who:
• are older;
• are not in the active workforce (unemployed, retired, non-participating);
• are on low incomes; and
• live in particular locations.
People from non-English speaking backgrounds and people with disabilities
also face barriers that may cause inequities.
The issues affecting take-up relate to the wider impact of electronic
technology and not just to electronic democracy. The Victorian Government
has recognised the importance of ensuring that every Victorian has the
access and skills to use the Internet. A range of programs to address
the various factors necessary for take-up is contained in the Connecting
Communities initiative.
However, two questions remain.
Are the general programs designed to promote awareness of the possibilities
of electronic technology and to provide people with the skills necessary
to exploit them sufficient to encourage the emergence of electronic democracy?
What reduction in inequity should be achieved before democratic institutions
actively promote electronic democracy?
The answer is clearly not to await the elimination of inequity, because
society necessarily tolerates some inequity in almost every aspect of
life.
5.2 Legal and regulatory issues
Legal and regulatory issues are important considerations in any examination
of electronic democracy
• the rule of law is an essential component of democratic structure;
and
• the manner in which electronic technology can be applied to democratic
processes can be constrained or advanced by legal and regulatory issues.
The law as essential democratic structure
The social compact that underpins a representative democracy – the
unwritten and often unspoken agreement about how a society accommodates
the diversity of its members within acceptable patterns of behaviour –
is not simply a reflection of the law. However, the law is an essential
part of our democratic structure:
• the rule of law is a central democratic process;
• legal institutions are powerful democratic institutions, although
remote from some citizens and democratic entities because of narrow channels
of entry, socio-economic barriers and complexity of process;
• the law provides a behavioural and, at times, ethical framework
for citizens and democratic entities, helping to codify and enforce some
aspects of the social compact;
• the process of law making is a reflection of the subtle balance
between democratic institutions leading and responding that is a feature
of effective representative democracy. Law that is too far outside of
the evolving norms of the social compact is rejected as a source of guidance
about behaviour. At the same time, the law can be a powerful vehicle to
promote and advance understanding of social and ethical issues; and
• as a democratic process, the law often provides a trigger for,
or point of access into, political discourse, encouraging the formation
of coalitions of interest and invoking participation by citizens and entities.
Any consideration of electronic democracy must therefore include some
thought of how electronic technology can influence the processes of making,
interpreting, applying and enforcing:
• constitutional provisions;
• statute law – expressed in Acts of Parliament and regulations
made pursuant to those Acts;
• judge made law – the Common Law including the web of precedents
from past judgements; and
• administrative decisions – the exercise of discretion by
Ministers, other elected officials and the bureaucracy.
As with other aspects of e-government, the use of electronic technology
to improve the internal efficiency and effectiveness of the legal system,
such as remote arraignment or video evidence, is outside the scope of
this discussion paper.
The issues regarding law making, interpreting, etc are largely covered
earlier in the paper as part of the discussion of participation in policy
making and in relation to electronic voting. However, other questions
about the relationship between citizens and democratic entities on the
one hand and legal institutions and the law itself on the other remain.
In a democracy, the law cannot be hidden from view. This principle underpins
transparency mechanisms such as open courts, the publication of statutes
and the gazettal of regulations. Indeed, to a significant extent, citizens
and entities are assumed to know the law as it affects their behaviour
and relationship with others.
But the content of the law can be surprisingly difficult to discover.
Electronic technology has the capacity to transform access to the content
of the law by assisting with:
• distribution – paper copies of statutes are typically only
available through a small number of outlets but online publication is
not limited by geography;
• discovery – without the benefit of electronic information
discovery tools, it can be very difficult to find which law or all of
the law that applies to a particular issue;
• consolidation – Acts and regulations are often amended many
times, and the process of manual consolidation is difficult; and
• interpretation – the nature of online publication allows
for easy access to interpretive and supplementary materials that improve
the ability for citizens and entities to understand, apply and make use
of the law.
The cost of information discovery is a significant barrier to access to
the content of the law and, therefore, a barrier to the effectiveness
of an important democratic process.
The technology also has the potential to exert transformative changes
to long settled and stable relationships. As an example, it could increase
the interactivity between citizens and the law. The technology provides
new scope for a citizen to be dynamically informed about how the law applies
in situations where changes in circumstances (such as weather conditions
or the time of day) alter the specific application of a law. In turn this
may provide increased scope for the application of law to vary as these
conditions vary.
The law as an inhibitor or accelerator of electronic democracy
The law also has the capacity to advance or constrain the development
and evolution of electronic democracy.
In the main, the law is adjusted in a deliberative, evolutionary fashion.
The content of the law tends to lag behind social mores. This inertia
smooths the impact of change and helps protect against institutionalising
fads and ‘going up blind alleys’ in social development. It
reflects the social and economic framework that has evolved in response
to past change. Only rarely does it anticipate the future.
We know that electronic technology will disrupt the established social
and economic framework. It is and will continue to challenge the assumptions
about behaviour and relationships embodied in the law.
For example:
• the ability to collect taxation revenue is changed through trans-national
internet commerce. The transaction itself may be located offshore or transactions
may move to lower tax jurisdictions.
How will this affect the Government’s capacity to fund safety net
programs that underpin our existing social compact?
• the law makes assumptions about the nature of communication between
people and entities. Security of communication is radically changed by
electronic technology. It is made both significantly weaker through its
susceptibility to automated collection and analysis, and significantly
stronger through the use of powerful encryption.
How important is the ability of citizens to secure their communications?
• the capacity for government to control the distribution and spread
of ideas, information, instructions, images and other material that can
be put into digital form is severely constrained.
How will this change the notion of censorship that draws a line between
personal choice and upholding community standards that have been determined
through democratic processes?
The deliberative, evolutionary fashion in which the law is typically modified
may be too slow to cope with some aspects of the social and economic changes
that are accompanying electronic technology. The protection afforded by
the inertia inherent in the law will need to be balanced against the costs
of moving too slowly to adjust the law.
The performance of our economy and society relative to competing economies
will depend on the speed at which we are able to assimilate and exploit
the opportunities the technology presents. That performance is fundamental
to the quality of life of citizens and the strength and resilience of
communities. How the law adjusts and is adjusted are, therefore, crucial
issues for electronic democracy.
Another important issue is the new democratic infrastructure that will
be necessary. In the context of electronic technology, democratic infrastructure
includes the framework and tools necessary for democratic processes to
occur within and between the three elements identified earlier in this
paper:
• individual citizens;
• democratic entities; and
• democratic institutions.
Some aspects are technological or procedural in nature such as physical
equipment, access arrangements and tools for information discovery, manipulation
and analysis. However, some of the most problematical issues relating
to electronic technology and democratic infrastructure are associated
with the law.
In many cases, the legal issues about infrastructure relate to the wider
impact of electronic technology and not just to electronic democracy.
Privacy, intellectual property rights, and authentication are relevant
examples.
The Victorian Government and others have considered and published widely
on these issues, and there is an active philosophical, policy and technical
debate underway. Substantial changes to the law have already been made
including legislation to recognise electronic transactions, formalise
existing assumptions about privacy, and extend and protect intellectual
property rights.
An examination of the detailed debate about each of these issues as they
relate to electronic technology is beyond the purpose of this paper. The
question in relation to electronic democracy is how any changes to the
law will impact on democratic infrastructure and processes.
Two examples illustrate this issue:
How will changes to the concept of intellectual property rights brought
about by the new technology impact on political or community discourse?
What will be the impact of new privacy provisions be on the ability of
community groups to exploit electronic technology to engage in democratic
processes?
Some legal issues relating to democratic infrastructure are strongly influenced
by administrative decision-making. They include:
• anonymity;
• risk; and
• protection.
In each of these areas the same question applies – where is the
appropriate balance between competing objectives?
Anonymity refers to whether or not electronic democracy should actively
accommodate anonymous contributions to debate and expressions of view.
As well, what weight should be given to anonymous input compared with
that from identifiable parties? On the one hand, even the option of anonymity
could be seen to encourage participation. On the other, it might reduce
the effectiveness of moderation and encourage deliberate flooding by means
of multiple responses.
Risk arises because electronic democracy is likely to require government
to adopt a more tolerant approach to the use of democratic infrastructure
than might have been the case in the past. It may have to be willing to
allow the infrastructure to be used to express, promote and debate diverse
views, including those that may be unpopular, inconsistent with mainstream
opinion or contrary to government policy. But, how far should this go?
Unlike many other jurisdictions, Victoria has some experience with these
issues through VICNET, the State’s online network for community
groups. Ultimately, government may need to legislate to define responsibilities.
Protection relates to a citizen’s right to use democratic infrastructure
in the knowledge that they will not be subject to threat, coercion or
harm.
What if any differences are there between the protection of citizens and
entities participating in democratic and community activities in an electronic
environment compared with a physical environment?
Do the same norms apply or is there a substantive difference? Is it a
question of lawful and unlawful activities, or is there also a need for
protections based on taste, sensibility or polite behaviour?
5.3 Infrastructure
Democratic processes require an infrastructure upon which to operate.
This infrastructure is a necessary but not sufficient condition for democracy
to flourish, and has a:
• tangible layer – such as a place for Parliament and other
democratic institutions to meet, and civic places that allow citizens
to interact; and
• procedural layer – such as rules, laws, consultation guidelines
and review mechanisms.
Electronic democracy will bring its own infrastructure requirements.
Electronic technology typically has a very low unit transaction cost.
But this does not mean that it is cheap to establish and operate well.
Indeed, the wider experience with electronic technology is that effective
implementation and use is resource intensive.
For many uses of electronic technology this does not pose a difficulty
because the investment can be recovered from direct benefits such as improved
labour productivity. However, in democratic processes, the costs fall
heavily to the provider while the benefits are dispersed throughout society
and the economy.
This means that there is likely to be significant market failure in the
provision of democratic infrastructure.
Further, electronic technology is information intensive and involves many
interactions which causes high levels of dispersed costs not directly
associated with the technology including:
• the cost of information capture and maintenance;
• an increased volume of interactions and other transactions that
would accompany even a modest increase in participation;
• an inability to close legacy physical channels as participants
migrate to electronic means; and
• increased expectations about the extent, priority and timing of
existing processes applying to both physical and electronic channels.
Because of the likelihood of market failure, and because democratic processes
are essentially public goods, responsibility for the bulk of the investment
in infrastructure is likely to fall on government.
In the same way as existing democratic infrastructure, electronic democracy
requires a tangible and a procedural layer.
The tangible layer includes:
• new civic places in electronic space – such as discussion
groups, email lists, chat rooms, bulletin boards, shared calendars, web
meetings and video streaming which allow for interaction and participation;
• information sources – such as web sites and mailing lists
that hold information and analysis;
• information processing tools – such as intelligent agents,
search agents, collaborative editing tools, storage capacity and interaction
tools covering all manners of operation which allow participants to navigate,
discover, access, filter, analyse, store and update information;
• technical infrastructure – such as public access terminals,
and the computing and communications technology that create the network;
and
• human infrastructure – such as information custodians, technical
advisors, sources of training and skills, and role models for new entrants.
The procedural layer includes:
• content rules and guidelines – such as what is and is not
acceptable use of the infrastructure, permanency of information and access
rules;
• behaviour management – such as using a moderator;
• scope management – such as whether the infrastructure should
support one to one models as well as many to many participation; and
• control guidelines – such as who runs the infrastructure,
manages the risks and determines the rules (as opposed to who pays for
it).
Securing and managing the infrastructure for electronic democracy is a
substantial task.
Who should pay for new democratic infrastructure?
Is it just a matter for government, or should all participants in our
democracy contribute in some material way – financial, resources
and effort?
Can we truly have electronic democracy if the government or other powerful
entities are able to exert significant influence through their control
of the infrastructure used for democratic processes?
What is the extent of the resources that should be made available now
and in the future?
What amount of the finite resources of government are we willing to divert
to establishing and maintaining new democratic infrastructure?
Are we willing to replace existing democratic infrastructure with new
investment for electronic democracy, or should we only add to what is
already available?
Are we seeking to directly translate the existing infrastructure into
electronic processes, or should we use the technology to transform those
processes?
If we are aiming for transformation rather than substitution, how do we
decide on questions of priority, timing and extent?
How much investment is it sensible to make today, when our understanding
of what will emerge in electronic democracy is still immature?
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