Electronic Government

Legal & Regulatory Issues in E-Gov/M-Gov

Abstract:

“Electronic Government” has become one of the most important issues in the transformation of the public sector in many countries and so new dispensation of e-governance requires new set of laws. Strong and effective rules related with IT has to be formulated and strongly implemented. Security and privacy concerns have always been considered as an impediment to the use of ICT for online services such as e-government. E-government encourages transparency or openness in government system. One of the areas in which e-government offers clear advantages and improvements is the citizen’s access to administrative information. So paper deal with these aspects.

Introduction

“Electronic Government” has become one of the most important issues in the transformation of the public sector in many countries [1]. As a first step, information about services is published on a web site and citizens can interact with the site to download application forms for a variety of services. The next stage involves the use of ICT (Information and Communication Technology) in the actual delivery of service such as filing a tax return, renewing a license, etc. More sophisticated applications include processing on-line payments. [2]

E-Government is said to have the potential to transform the way that governments operate. Some countries and agencies have not yet started to transform services into e-services, while others are working with their visions, demands, and capabilities to develop e-Government services. Some countries and agencies have progressed quite far along the road of delivering sophisticated e-services. But the road leading to a seamless e-Government is not an easy one. There are many risks involved, which if they mature will have a detrimental impact on the economy, efficiency, and effectiveness of e-Government investments.[3]

Defining E-Governance:

“E-governance is the application of information & communication technologies to transform the efficiency, effectiveness, transparency and accountability of informational & transactional exchanges with in government, between govt. & govt. agencies of National, State, Municipal & Local levels, citizen & businesses, and to empower citizens through access & use of Information.”

· Implementation

E-Government solutions are open systems and are exposed to more and different risks from traditional systems. The widespread use of technology provides new challenges to governments, organizations and auditors. Such widespread distribution increases the need to provide security, control, and privacy, and there are already many examples of failure to do so, both in the public and private sectors.[4]

E-government: Ambitions and Dimensions

Abdul Kalam (2005) visualizes establishment of Village Knowledge Centers in 2.3 Lakh Panchayats to empower the villagers with the knowledge and to act as a nodal center for knowledge connectivity for the villagers, and also identifies a “Village Information Officer” to be “the extended eyes and ears of the villagers to the world of knowledge”. The benefits of e-governance, tele-education, tele-medicine, e-commerce and e-judiciary initiatives should be reaped at through these Knowledge centres.[5]

The first thing that becomes clear when reading the various country reports is that one cannot understand the opportunities and difficulties in launching and realising an effective and coherent e-government ambition without understanding the specifics of the national context. Different economic, social and political circumstances may have a determining effect on the implementation of e-government ambitions. Illustrative is the Swiss situation. This country is one of the smallest federal states in the world, with a very intricate federal structure that implies 26 federated entities (the cantons), and three levels of government. This political structure implies, as Jean-Marc Verniory notes in his country report, that as regards e-government “there can be up to 2800 different e-government strategies and programmes in Switzerland!” Hence, for one country it will be easier to realise certain e-government initiatives than for others. Thus, the different rankings, benchmarking reports and international comparative surveys can be misleading in the sense that they sometimes do not take the influence, impact and conditioning effect of specific national governmental structure into account.[6]

Why Law in E-Governance?

The new dispensation of e-governance requires new set of laws.

Physical laws have limitations because they are unidimensional in application and meant to govern the physical world, which is static, defined and incremental, whereas e-governance represents new form of governance, which is dynamic, and exponential. These are technology intensive laws to control and safeguard electronic transactions in the electronic medium. Health e-gov projects are supported by Information Technology Act, 2000 (and amendments 2008) and Tele-medicine Act 2003.[7]

E-governance in Developing Countries:

Implications of e-governance are slightly different for developing countries.[8] In spite of the economic restructuring in many developing countries such as India, the public administration in developing countries still continued to remain highly bureaucratised and extremely centralised .

Another difference between e-governance in industrialised and developing countries is in the available ICT infrastructure. E-governance movement in industrialised countries was largely triggered with the availability of Internet technology, through which it became possible to access government agencies remotely and inexpensively.[9]

The concept of e-governance is now moving towards reality for Indian citizens. The country is graduating from pilot e-governance projects to bigger Mission Mode projects.[10] The financial sector is revolutionized through ICT, but the democracy and e-voting concept is still a dream. The National e-Governance Plan (2003-2007) 1 of Indian Government seeks to lay the foundation and provide the impetus for long-term growth of e-Governance within the country. The plan seeks to create the right governance and institutional mechanisms, set up the core infrastructure and policies and implements a number of Mission Mode projects at the centre,-state and integrated service levels to create a citizen-centric and business-centric environment for governance.

E-government is primarily driven by a growing demand for better services from investors and citizens, who now experience vastly improved services from the private sector. Some other factors that have contributed to the growing popularity of e-Government are discussed below.

There has been a considerable demonstration effect of the constructive difference that e-government has made in advanced economies in the delivery of services, provision of information and internal administration of the public sector. Many developing countries that have developed significant capacity in building IT applications feel that they can leapfrog to take advantage of the new electronic channels that are available for delivering government services. In the last decade, several countries have gone through a process of economic liberalization and economic growth. Many large countries like India and China have grown at 6 to 10 percent per year over the last decade. Having completed the first phase of economic policy reform, such countries are now moving to the next phase of reform i.e. governance reform. Since e-government pilots have demonstrated a positive impact on corruption, transparency and quality of service, these countries see e-government as an effective tool for governance reform. [11]

Spread of the Internet in the urban areas of many developing countries is starting to create a critical mass, not as considerable as in most developed countries, but large enough to lead the government to deliver online services. In the large and highly urbanized countries of Latin America or Asia, it has thus become possible to deliver e-government services. In many of the places where e-government has been introduced, it has shown that it can work, and it can have a wide impact on government efficiency and effectiveness.[12]

Legal issues of e-government

Strong and effective rules related with IT has to be formulated and strongly implemented. This presupposes the adoption and use of security measures more particularly empowering and training judiciary and law enforcement manpower with the knowledge and use of cyber forensics and digital evidencing.[13]

Seamless communication and information flow and data management are the primary preconditions of an effective e-government structure. It requires reasonable assurance of not being affected by illegal activities undertaken by computer hackers and cyber criminals. Dave (2005) argues the lack of authenticity and reliability, lack of accountability, redundancy of data, improper identification of user such as citizens, lack of accountability due to inappropriate delegation of authority, cyber crimes like fraud, theft, virus and incompetent security of on-line data transaction on Internet are the leading barriers to implement e-government from a legal perspective.

E-Transaction : where citizens move from a passive to active role. Citizens transact with government, on-line by filling out forms and government responds by providing confirmations, receipts, etc. Electronic transactions offer a better hope for improved efficiency for both the customer and the government agency than simply “cataloguing information”. [14] Where any law requires a signature on a document such requirement is fulfilled in the electronic environment by the use of a DS affixed in such manner as prescribed by the government.[15]

E-Communication: Communication matters and the primary thrust of e-government is to develop and maintain an effective e-communication protocol between the government and citizens and across and beyond government agencies. In legal terms, e-communication includes attribution, acknowledgement and dispatch of electronic records. This means that the moment an e-mail sent by the originator leaves the originator’s computer and resides on an intermediate server, it can be said that the electronic record has been dispatched by the originator.[16]

Privacy and Security of confidential information : Security and privacy concerns have always been considered as an impediment to the use of ICT for online services such as e-government. E-government encourages transparency or openness in government system. While trying to attain this goal, the risk of violating citizen’s privacy comes up under scrutiny from ethical and legal perspectives. E-Security is identified as one of the supply side barriers of e-government as security needs of government transactions cause technical difficulties and extra cost while implementing e-government. To secure government transactions, public key infrastructure (PKI) is designed and developed and to maintain security within government to government (G2G) communication, government secure intranet (GSI) has been developed . Therefore, it could be argued that all the associated legal challenges related to e-security might be addressed through an IT Act in e-government initiative so that citizens are confident about their data security through legal provisions and actions. In today’s world where most of the computers, especially those in offices, are connected to the Internet or an Intranet and thus prone to online/external attacks the private key can be compromised in spite of the reasonable care taken by the subscriber.[17] The Constitution of India does not confer, in express terms, any constitutional guarantee on the right to privacy. Nevertheless, an unauthorized intrusion into a person’s home and the disturbance caused to him thereby, would constitute a violation of a common law right of a man. The right to privacy is also an essential ingredient of personal liberty. While the right to privacy has been enumerated by the courts as one of the rights available to persons under Article 21 of the Constitution, the courts have held that it is not absolute. Article 21 of the Constitution is to be interpreted in conformity with international law, since India is a signatory to the International Covenant on Civil and Political Rights. (Article 17 refers to the right to privacy)

Interoperability :

The overall integration and harmonization of public transactions and data is particularly relevant to the processes that must be established to manage the data flow and exchange of services among different agencies, both for back and front office activities. The adoption of a common general model to ensure cooperation between architectural applications enables a smooth interaction between citizens and the various agencies, independently of the specific platforms and solutions adopted by each agency.

In this way citizens who needs to interact concurrently with several agencies can rely on a single seamless interface that will allow them to navigate through different services, provided by different sources, with as little inconvenience as possible. Similarly, when two different agencies need to interact to establish common back office procedures, the presence of a standard exchange interface ensures that the data and service flows are set up correctly.

The presence of a common, standard exchange interface ensures technological heterogeneity, which is intrinsic to the growing “pathway” of ICT infrastructures within each agency, and ensures that local technical solutions are independent. Through the adoption of a common exchange interface that acts as a standard plug-in for any application, a common cooperative process is established to automatically exchange information and services between ICT applications.[18] And ways to be able to identify the various steps involved in achieving these integrations[19]

E-Crimes :

It is needless to say, e-crime (often known as cyber crimes) is a global phenomenon and is engulfing the world at an alarming rate. Bangladesh is not immune from it1. Nonetheless, e-crime is a unique threat that can be carried out from anywhere against any computer system or user in the world. It is a global menace and is becoming increasingly difficult to control. As a result, governments, businesses and individuals all over the world are facing the new challenge of combating e-crimes (Serabian, 2000). A survey in the US shows that 85% of companies at least once experienced attacks on their networks and in 2003 alone, 22,000 attempts of unauthorised intrusion were made into the Pentagon network systems. According to another estimate, computer viruses annually cause $12b of losses for companies worldwide (Sabadash, 2004)..[20]

Access to information :

One of the areas in which e-government offers clear advantages and improvements is the citizen’s access to administrative information. It has already been shown in detail that the requirement of transparency in the public administration is based on the democratic principle, the rule of law principle and objective legal aspects of freedom of information, and is also firmly rooted in European Community law. This potential of the new information and communication technology is not yet sufficiently used.[21]

Data protection :

It is plain that the increasing use of electronic media for administrative tasks, with new possibilities for data links in networks or with multi-functional chip cards, involves increased risks for data security. More and more data are entered electronically and stored in central databases, and an increasing amount of information can be called up at computer workplaces. It can therefore not be emphasised enough that the constitutional right of self-determination of information sets boundaries which are not always sufficiently observed in the practical, efficiency-oriented work of the administration – as is shown in many reports by commissioners for data protection.[22]

Legislative Initiatives :

Frenetic activity in the past few years has ensured that lawyers and policy makers specializing in information technology law are kept busy monitoring developments that are taking place in many parts of Asia, as well as in other parts of the world. Examples of legislation passed or sought to be passed in Asia include Australia’s Electronic Transactions Act 1999, Broadcasting Services Amendment (On-Line Services) Act 1999, Privacy (Private Sector) Bill and the Copyright Amendment (Digital Agenda) Bill 1999 Many governments and regulatory bodies in Asia are beginning to recognize the economic potential of e-commerce and are considering a number of policy initiatives designed to encourage its development. These initiatives include attempts to overhaul or effect amendments to existing laws to deal with the emerging legal issues that e-commerce raises. In India, there have been feverish attempts to update the Indian legal and regulatory framework to make it more relevant in the face of rapid developments in ICTs. The ISP and gateway markets have been liberalized and the national long-distance sector has been opened up. In addition, discussions are ongoing for the liberalization of the international long-distance sector and India’s up linking policies are slated to become more liberal .A closer examination of the legislative activity in this area ,however, leaves one with the uncomfortable feeling, that what is taking place across a large part of Asia (with the possible exception of the ASEAN member countries in so far as current and future collaborative plans are concerned), is probably more a knee-jerk reaction to perceived legal problems presented by e-commerce rather than a careful and considered response to the actual issues that this new method of doing business raises. As is clarified in the ensuing discussion, the primary focus of most of these laws and regulations, is to update the substantive territorial laws of the jurisdictions concerned. This, as we will see shortly, will prove to be ineffective, unless concurrent steps are also taken to harmonize the laws among the different countries.[23]

Regulatory issues

The rules and regulations necessary for e-Government programs differ greatly from country to country, depending on the current social, constitutional and regulatory situation in the implementing country.

It is therefore necessary to define only the guiding principles that the regulatory system needs to follow. In fact, regulatory reform is one of the critical issues that has often been overlooked. Yet, experience has shown that it is crucial for e-Government success, both in terms of affordability and long-term sustainability. Regulatory reform is a “must do” to guide most e-Government applications. In cases where these applications were developed outside the appropriate regulatory framework, the chances of their completion are greatly reduced.

E-Government requires the establishment of a range of suitable legal and regulatory measures that are aimed at:

• Integrating and sharing data systems within and among administrations
• The use of this public information by third parties, especially the private sector, safeguarding privacy and security issues
• Enabling the digital exchange of information and transactions between government agencies, citizens and businesses.
• Recognizing the digital exchange of information and allowing electronic transactions and record keeping
• Reaching citizens affordably and enabling citizens to reach government affordably by facilitating availability of and access to information and communication services

Countries should be ready to adapt their legislative framework to apply “electronic equivalents” of traditional paper procedures, such as personal identification, signing and filing. Legislation should therefore identify types and standards for electronic signatures and authentication and allow and regulate electronic record keeping.

Other reforms may prove to be necessary in order to regulate the internal organization of government, with the objective of facilitating the adoption of e-Government. In particular, the process of streamlining administrative procedures could eliminate barriers to its deployment.[24]

E-Readiness issues :

The objective of this phase is to support the preparation of a pre-feasibility assessment. A country level of “e-Government readiness” is the degree to which each country is prepared for the introduction of e-Government. By assessing the relative state of advancement in the areas that are most critical for the adoption of e-Government for different key factors, countries will be in a better position to evaluate opportunities and challenges, as well as their own strengths and weaknesses. However, as uniformity across the broad is impossible, the objective of the e-readiness analysis is to identify specific actions for improvements and potential niches for the initial start up of e-Government programs, rather than a positive or negative answer to e-Government as a whole.[25]

Key Challenges in Regulating E-Government

• Lack of IT literacy and awareness regarding benefits of E-Governance
• Underutilisation of existing ICT infrastructure
• Attitude of government departments
• Lack of coordination between government department and solution developers
• Resistance to re-engineering of departmental processes
• Lack of infrastructure for sustaining E-Governance projects at national level

Interconnecting Government Agencies :

This is usually seen as one of the major advantages of E-Government – connection between the various parts of government to provide flows of information between what currently is partitioned by cultural and legal barriers (that is, departmental and institutional responsibilities). Pubic lawyers are particularly keen to note that it is legally problematical to provide a government which is as seamless as this (as well as difficult to believe it is achievable). Information is not always available to government departments easily, nor should it be: why should the department of agriculture be allowed easy access to records from the prison service? Why should a privatised supplier of hospital services have access to DSS information when a potential supplier (competing for this business) is not? There are many positive reasons why government should not be interconnected, and most of these are legal reasons. If we approach E-Government in a purely technically oriented manner then we are certainly asking for trouble.[30]

Legal and Regulatory Initiatives in Indian Legal system

The legal scenario in India plays a major role in supporting an environment, conducive for stakeholders of e-health. Legal framework being the important infrastructure element needs to be user-friendly and implementable at all levels for the purpose of compliance.[31] The Indian legal system though robust and based on a strong historical tradition is proving somewhat ineffective for the growth and development of advancing technologies. There is no legal framework in India that specifies the health services, capture, use, and storage of health information, their exchange for all modes of health services delivery, etc. [32]

The Information Technology Act, 2001

India is only the 12th country in the world to have a legal framework for e-commerce promulgated as the ‘Information Technology Act, 2001’. This Act effects consequential amendments in the Indian Penal Code, The Evidence Act, 1872, and The RBI Act, 1934, bringing all of them in line to the requirements of the digital transactions. This Act is also likely to affect the Companies Act, 1956 for the purpose of facilitating e-governance and e-commerce in the country. The Act seeks to address three areas:

• enabling e-commerce (b2b and b2c)
• enabling e-governance (g2c and c2g)
• curbing cyber crime and regulating the online environment .[33]

Inadequacy of Existing Indian Law

While the courts have evolved certain principles using which it may be possible to attach liability to Healthcare Providers, these are clearly inadequate to address the range of issues connected with the creation and use of Health Information, inter alia, for the following reasons:

• The existent principles address (to a limited extent) liability after misuse of the Health Information, and do not lay down standards for use of that information.
• The right to privacy has primarily been articulated in terms of the fundamental rights of persons under the Constitution, which are available against the State. While the Supreme Court has not squarely addressed the issue of whether the actions of private individuals (Healthcare Providers) can be subject to the right to privacy, it may be necessary to provide specifically for the right to privacy in respect of Health Information.[34] Provisions need to be made for administrative procedures implementing the regulation of Health Information.
• Liability is largely restricted to doctors, since existing principles do not take into account the wide range of other Healthcare Providers.
• The issue, type, and degree of penalties to be levied need to be specifically addressed.[35]

Legislative and regulatory barriers

The success of e-government initiatives and processes are highly dependent on government’s role in ensuring a proper legal framework for their operation. The introduction and uptake of e-government services and processes will remain minimal without a legal equivalence between digital and paper processes. OECD governments are aware of the need for a framework to provide for enforceable electronic transactions, both in the e-government sphere and for electronic commerce, and have taken action. [36] Clearly, e-government will affect the existing legal framework. But to what extent, and does it necessarily imply that applicable rules have to be changed because they are not fi t for the new technological developments in the public sector? A glance at the country reports shows that the most persistent legal issues that arise in relation to e-government are: privacy, the absence of paper-based documents and signatures, confidentiality and reliability and, finally, access to and the reuse of public sector information. Several of these issues resemble those faced in the e-commerce domain (e.g. security, e-signatures, authentication). It could thus be argued that in dealing with them, an approach from one single ‘online’ perspective would be the obvious route to take. The German country report however warns that some legal challenges for e-government are unquestionably distinct and more demanding than those for e-commerce. [37]

Need for Regulatory Change

In looking for available examples of specific legal and regulatory initiatives in the light of e-government developments, one is faced with the methodological problem that it is often not clear whether these initiatives are part of the e-government domain, or must be seen in a broader setting. Legislation in the area of personal data protection or the use of public sector information, for example, cannot be regarded as the core of e-government developments: legislative initiative does not make electronic data handling mandatory as such. Aside from the methodological problem of qualifying regulatory chance as ‘e-government legislation’, at a more conceptual level, it cannot be denied that e-government has a clear impact on the legal and regulatory framework. First, the various country reports testify that the effect that e-government gives rise to in the law is in the ways of seeing and conceiving law and traditionallegal concepts in an online society. [38]

Conclusion

The draft National Policy on Open Standards initiated by the Department of Information Technology (DIT) in June 2008 aims to augment e-governance solutions across India by ensuring seamless interoperability of various solutions developed by multiple agencies in this field. The policy requires all new e-government infrastructure and government to public systems to conform to open standards that are freely implementable, that conform to domestic laws, and that support localization. Thus the draft policy targets reliable long-term accessibility of public documents and information. [39] At a global level, access to health services has substantially increased on account of new developments in technology. These developments, including the use of the Internet and other modes of communication for the purpose of providing healthcare services have had an effect in India as well, though not to the extent seen in developed countries.[40] that we should look primarily at the lack of understanding between technical and legal people who have been involved in these projects. At the heart of this may be the lack of understanding of the difference between a citizen and a customer.[41]

REFERENCES

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WEBSITIES:

www.whoindia.org/LinkFiles/Trade_Agreement_09-41.pdf

lri.jur.uva.nl/~winkels/eGov2002/Leith.pdf

www.parliaments.info/…/17%20Carlo%20Batini%20Annex%205%20-%20%20Application%20architecture,