Podcast 🎧 and blog: Legal obstacles to e-government (that don’t exist)

To many, the road to e-governance may seem rocky. Not only during some client meetings, but also in seminars and just conversations in general, an age-old question is often brought up: “Digitalization, okay, great. But there are too many legal obstacles to implement it in our country.” Today, we get this one off the board too.

Katrin Nyman-Metcalf, Senior Expert on Legal Framework at e-Governance Academy, addresses the legal obstacles to e-government that, as it turns out, basically do not exist. Easier said than done?

Everyone is online, but very few have a secure identity

Linnar Viik, Programme Director of Smart Governance at eGA and host of today’s podcast, points out at a current paradox in the virtual world. Five billion people are on the internet and use digital services, whether provided by public or private actors, on a regular basis. How many of these have a legally binding electronic identity? Around 100 million, just about 2% of them.

A tiny, tiny number that hints at a problem – everyone is online, but almost no one (or okay, very few of us) has a digital identity. It is intriguing, especially if we look at the case of signatures. In the real world, a signature often is not enough. The value of a signature changes based on the transaction that is being carried out, requiring in some cases further proofs of identity such as showing or making a copy of identity cards, the presence of a notary, and more.

But as such differences exist in the real world, so they do in the virtual world. Some of our daily activities on the internet do not require us to confirm our identity in a legally binding way. “So the focus moves towards legally communicating in a way that is good enough,” Nyman-Metcalf explains.

And indeed, all good until everything goes well. “But if something goes wrong or worse, to court, then there is a need to determine whether a certain transaction was conducted properly or not. Digital identity here comes into the picture very effectively, because it is what grants you the security to state that yes, this transaction was done according to the law and in a way that [as established by the law] is good enough,” Nyman-Metcalf says.

Governments are responsible, but solutions can come from elsewhere

In the absence of a digital identity provided by governments, we cannot just keep our fingers crossed and always hope for the best. Banks, for example, have come up with their own tools and requirements to securely identify users when carrying out operations. Viik raises the question that sparks debate over this kind of private sector monopoly: can governments delegate the task of effectively and securely identifying people on the internet to private companies?

“It would be unfortunate, and not for practical reasons, but because it would be very strange to have private companies hold such kind of power by proxy in the name of countries,” Nyman-Metcalf warns. In democratic countries, citizens have ways to influence institutions by means of elections, choosing their representatives tasked with taking decisions on the matter. In the case of private companies, we do not have that possibility.

That is why Public-Private Partnership could be a framework of reference to develop solutions that securely identify people when there is a shared interest and need for it. In Estonia, for example, some people still access public services using bank IDs, while most people access bank services using government IDs. A reinforcing mechanism of reciprocity emerged, something that could be good for many other countries where public and private sectors may try to solve common problems.

“Governments have the urgent responsibility to give people proper means to act as who they claim to be. But the tools to that end can be built also in cooperation with the private sector,” as Linnar Viik concludes.

Look into laws and choose the best path – digitization or digitalization

And we get back to the initial objection that is often raised at e-government – is it legal? Often, that is rather a convenient point to make. More often, instead, it becomes a problem of miscommunication or lack of cooperation between experts with different skills, legal or technical.

The current pattern is to apply an existing legal framework to the digital world. That is the path of digitization, where there is no visible change in business processes or the rules governing them through the shift towards a digital platform. “But we need to encourage and support reforms, and that is when all obstacles potentially fall. Does said obstacle serve a purpose? In matters of form, it often does. But if not, then change the legal framework accordingly and reform,” Nyman-Metcalf says.

In order to debunk and identify these obstacles, the first step is to carry out a good old legal analysis of the existing framework. “Involve people with legal training, look into laws, and find anything that would not be possible to do in the digital world. Once that is done, highlight these elements and consider what purpose they serve, what they are there for,” Nyman-Metcalf concludes. And the road that seemed so rocky in the beginning, also from a legal perspective, will suddenly become much smoother than before.

The article is compiled by Federico Plantera on the basis of the podcast Legal obstacles to e-government (that don’t exist).