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e-Governance in the Information Society. Erich Schweighofer University of Vienna Centre for Computers and Law. Outline. Particularities of e-governance Governance, cyberspace, applicable law, jurisdiction Competition of governance providers E-persons E-transactions E-government

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E governance in the information society

e-Governance in the Information Society

Erich Schweighofer

University of Vienna

Centre for Computers and Law


Outline
Outline

  • Particularities of e-governance

    • Governance, cyberspace, applicable law, jurisdiction

    • Competition of governance providers

  • E-persons

  • E-transactions

    • E-government

    • E-commerce

    • E-democracy

    • E-documents

      • E-signatures

  • Conclusions


Definition of governance
Definition of Governance

UN Commission on Global Governance, Our Global Neighbourhood

The Report of the Commission on Global Governance (1995) chapter 1

„Governance is the sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and co-operative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest.“

Aim: rule of law as a efficient way of risk reduction by providing legal security

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Definitions of cyberspace 1
Definitions of Cyberspace (1)

Gibson (1991): metaphor for a new space in which through communication and data transfer certain actions are set

New space for human activities where distance does not matter, e.g. communications, leisure (games, pornography), trading (e-commerce), participation (e-democracy), administration (e-government), working (?)

US Supreme Court, United States et al v American Civil Liberties Union et al (1997)

“ […] a unique and wholly new medium of worldwide communication. […] Taken together, these tools [email, mailing list servers, newsgroups, chat rooms, World Wide Web] constitute a unique new medium - known to its users as "cyberspace" - located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.”

Council of Europe, Cybercrime Convention (2001)

[…] By connecting to communication and information services users create a kind of COMMON SPACE, called "cyber-space", which is used for legitimate purposes but may also be the subject of misuse […]”.

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Definitions of cyberspace 2
Definitions of Cyberspace (2)

Invisible, intangible, non-territorial (but: IPv6 geographic-based unicast addresses), worldwide space (Grewlich 1999)

Strong interaction with real world (people still live in real space; are always subject to enforcement of state of residence), but territorial approach is not sufficient any more

No new territory (e.g. declaration of Barlow, cyberspace jurisdiction à la Johnson/Post)

Too strong interaction with real world

Persons may be very often in this space for some time, but they still live in a real physical world.

They are not away (concept: conflict of laws) and have no relation any more with a particular country!

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Multilevel regulation in cyberspace
Multilevel regulation in cyberspace

Multilevel regulation (Engel): competition of different regulation providers on activities in cyberspace

Territorial

Topical

Sometimes a chaos resulting from various regulation endeavours

Data protection

(Child) pornography

Lotteries

Spam

Nazi propaganda

New challenge for risk reduction (e.g. providing legal security) as main aim of legal systems

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Cyberspace regulation 1
Cyberspace regulation (1)

Options of multilevel regulation

Cyberspace jurisdiction (Johnson/Post)

No acceptance

Territorial jurisdiction

Westphalian system; realist approach

Problem of limited reach of powers of state authorities

Personal jurisdiction

Liberal system (Slaughter): citizens have sovereignty; can give it to various organisations like state, NGO, or transnational corporations

Option for states, sometimes used; but in general limited because of interference with territorial jurisdiction

New “personal communities” with self-regulation (e.g. IETF, W3C, ICANN, information cities [ACM Feb04] etc.)

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Cyberspace regulation 2
Cyberspace regulation (2)

Developing, but: quite limited, focused on technical issues (IETF), ICANN in this respect quite unsuccessful

Requires some support by territorial state

Technical regulation (software code = law [Lessig])

Fascination option with quite high efficiency

Lack of regulatory control

Requires some support (and correction) by territorial state

Extraterritorial (unilateral) regulation of the territorial state (or supranational organisation)

Best option for uniform application of laws (e.g. USA, EU)

International law

Public international law

Limited use, mostly co-operation

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Cyberspace regulation 3
Cyberspace regulation (3)

Conflict of laws (private international law, international penal law, international administrative law)

In the very end in case of lack of good rules: dispute settlement provider

Tentative solution for unsolved balancing of realist vs. liberal approaches of regulation

Present status

States in (close) co-operation with International Organisations, NGOs, transnational corporations, citizens etc.

Problems: chaos (e.g. no efficient regulation), dissens, extraterritorial regulation, self-regulation with lack of accountability

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Cyberspace governance providers 1
Cyberspace governance providers (1)

Regulation agents, governance providers, legal systems, jurisdictions

Regulation agents (Regulierungsagenten): (Kirchner, Lutterbeck)

Transnational order (Jessups) with new forms of regulation

International economic law (Georg Erler[1956])

“The Peer Production of Governance” (Johnson/Crawford/Palfrey Jr. [2004])

International Regimes (Young)

Governance

States are the most important governance providers in cyberspace; but:

End of strict hierarchies (governance by government)

Competition of different regulation systems(governance with government) and others

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Cyberspace governance providers 2
Cyberspace governance providers (2)

  • Characteristics

    • Exit option of citizens, companies and communities

    • Governance by recognition

    • Limited enforcement by territorial state and cyberspace


Cyberspace governance providers 3
Cyberspace governance providers (3)

States

Territorial and personal regulation

Extraterritorial (unilateral) regulation

International Governmental Organisation (IGO) [community of states]

International Non-Governmental Organisation (NGO) [community of citizens (economic or non-economic)]

Transnational Corporations

Civil Society, (cyber)citizens

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E person 1
e-person (1)

Same person as in real life but without the real life context and acting in a artificial ICT world called cyberspace (e.g. very limited wits level, in input as well as in output)

Problem: identity link, “biometric touch”

Cartoon by Peter Steiner (1993). Reproduced from page 61 of July 5, 1993 issue of The New Yorker, (Vol.69 (LXIX) no. 20.

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E person 2
e-person (2)

Human person has a physical identity

Alive, age, face, body, behaviour, speaking, life context

Can be easy checked; together with legal identity (identity card, passport) sufficient proof to do business

e-person: human (or also legal) person with an electronic identity

Data entry in a trustable register

Credit card number

Bancontact/ATM/Maestro

E-mail

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E person 3
e-person (3)

IP number

Domain name

Telephone number, Skype identity, E.NUM

Source identification number (Zentralmelderegister-Nummer, Stammzahl)

Personal data: CV, life context

Some link with a „biometric touch“

Secrete Information, private information

Possession: cards or dongles

User identity/password

PIN/TAN codes

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E person 4
e-person (4)

Electronic signatures

Secure electronic signatures

Finger prints

IRIS scan

Genetic data

RFID chip

Electronic expressions of will of person (that’s legally relevant)

Fulfilling certain access requirements to the proper interface (e.g. user identity/password, special cards, place of PC) + providing additional secrete information + ICT activity (e.g. mouse click)

Full substitute to paper signature

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E person 5
e-person (5)

Risk analysis required in order to achieve a balance between costs (more security) and benefits (higher dissemination)

IT security people have maybe gone too far

It may not be necessary for every business to go to the notary as it is now foreseen in the E-Signature Directive.

Dark site: new crime called „personality theft“

Another reasons to be very careful with personal data and data protection

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E person 6 robot
e-person (6) - robot

Robots

Intelligent machines with tool character

Machines for the enlargement of human movement capabilities

Mechatronics

„Embodyment“ of intelligence in a physical world

Internet agents  roboter

No robots in the narrow sense but many if its characteristics: plane, house, car etc

Replacement of humans?

Not yet, maybe in 20 years

Senses of robots not sufficiently developed

Robot = legal person? No!

Robot = intelligent machine

Human being determines behaviour of robots and rules over robots

Robot = messenger (Bote)

Human being is liable for robot like for a (special) thing

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E person 7 software agent i
e-person (7) - software agent I

Software agents: Software modules with intelligence enabling unsupervised activity and co-operation with other agents

Automation of web applications, independent services on the internet

Acts in cyberspace, no real difference between communications of a software agent and those of a human being

Characteristics

Interaction

Reactive behaviour

Proactive behaviour

Communication

Mobility on the internet

Learning capabilities

Programming and knowledge representation

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E person 7 software agent ii
e-person (7) - software agent II

Integrity and authenticity

Registration, responsibility

Types

User interface agents, network agents

Information agents

Multi-agent systems (co-operation with other agents)

Legal problems

Software agent = messenger?

Yes; no agent because the software agent has no acting power at all

Automatic will of software agent is attributed to responsible person.

Erich Schweighofer (2007)


E transactions
E-transactions

  • All human actions possible in cyberspace

    • Restricted by contraints of cyberspace

      • Information and communication

    • Full potential not yet explored

      • E-government

      • E-commerce

      • E-democracy

      • E-entertainment & e-live (second life)

  • Legal actions: no constraints any more from a technological or legal point of view (some exceptions!)


Legal acts in cyberspace 1
Legal acts in cyberspace (1)

Conclusion of legal transactions, notice of documents, electronic decisions etc. with electronic signatures or equivalent procedures

Private law

Electronic wills

Will by person with electronic means (private autonomy)

Will by computer

Computer = messenger; each declaration of will is covered by a general will of declaration and action of the responsible person.

Wills by software agent

Software agent = messenger

Wills by robot

Robot = messenger

Strict liability with insurance is desirable [Schweighofer in Christaller et al. 2001]

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Legal acts in cyberspace 2
Legal acts in cyberspace (2)

Public law (Austrian examples)

§ 1 para. 2 signature law: applies also for electronic communications with courts and other authorities

E-government law: contains further provisions (identity, public documents)

Electronic submissions

Considered as written notifications in case of use of citizen card (Bürgerkarte) (identification) with electronic signature (authentification)

Electronic files

Electronic decisions, minutes (§ 18 law on general procedures, e-government law)

E-signature or other suitable procedures

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Legal acts in cyberspace 3
Legal acts in cyberspace (3)

Electronic communications

In case of electronic address

Official signature, encryption

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E document 1
e-document (1)

Document: (lat) documentum = proving certificate

any discrete representation of meaning (in law in particular: will)

Usually: paper (hand-written, typed or printed)

Now: "virtual" document in electronic (digital) format

Prove is usually:

hand-written signature at the end of nicely structured document (maybe also paraphs)

context (paper, form, pen, finger prints, etc)

File does not provide any proof but only information

Problem: How do create similar proof of a signed written document?

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E document 2
e-document (2)

Authenticity function

proves that the document remains unchanged.

Hash values constitute the „finger print“ of file.

Identity function

Document origins from its producer.

Electronic signature

New form of declaration of will (key is known only to signer)

Biometric touch: signature card, password for signing (in the future maybe fingerprint)

Certificate: certification service providers establish identity of person with its e-signature

Providing secure information in a secure environment

Credit card transactions

Problem: transfer of information transfers signature rights

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E document 3
e-document (3)

Signing (pressing the sign button) in a secure procedural environment

Problem: prove lies in the ICT environment that can be modified by highly qualified ICT experts (highest level security checks required)

Editor problem

What you see is what you sign?

Not guaranteed in an electronic document

Dynamic text processors like Word for Windows may deceive you in small but important details

Thus: Word is considered as not appropriate

Eligible: PDF, simple text editors, XML editors

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E document 4
e-document (4)

Best practise

XML document

hash-code

encrypted with secure e-signature

encrypted (with different key) during transport

Examples

Austrian Official Gazette

Notaries in Austria: electronic notary acts

Problem

Directive 1999/93/EC on a Community framework for electronic signatures [OJ L 13/2000, 12]

Legal recognition of electronically signed documents in order to stimulate market for European signature products

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E document 5
e-document (5)

Establish a European wide secure environment

Transborder recognition of electronic signatures

Gives recognition of e-documents with same value as written documents

Maybe not sufficiently flexible in response to involved risks

Secure electronic signature too often required

Administrative signatures may be much more appropriate

FinanzOnline, e-Justiz, A1 Signatur

Combination of secure + administrative signatures: Beamtenausweis - Austrian Ministry of Finance

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Conclusions
Conclusions

  • Governance in cyberspace

    • Some particularities in comparison to traditional forms of legal governance

      • Broader view of governance; recognition quite important

      • State looses monopoly of regulation; some competition between regulation providers existing and emerging

    • E-persons

    • E-transactions

      • E-document

      • E-signatures

  • Legal framework exists; fine-tuning necessary

  • Still a lot of potential not yet used


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