Building Cyberlaw Capacity for eGovernance: Technology Perspectives Rogers W'O Okot-Uma

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Building Cyberlaw Capacity for eGovernance: Technology Perspectives1

Rogers W’O Okot-Uma Independent eGovernance Adviser

London, United Kingdom eMail: [email protected]

Introduction

An abridged definitive conceptual framework is presented for Electronic Governance (eGovernance). The framework relies on the time-proven principle of introducing a concept by progressing from the ‘known’ to the ‘unknown’. It takes note of the need to define Electronic Governance from the more well-known concept of Good Governance that predates it. The framework is informed by the author’s several years of experience in an advisory role in the concepts, planning and implementation of eGovernance in Commonwealth member countries. eGovernance is presented as a natural progression from Good Governance and as contextually inclusive of Electronic Democracy (eDemocracy), Electronic Government (eGovernment) and Government Electronic Business (eBusiness). Making the transition to eGovernance is presented in terms of a taxonomy of levels of evolution of eGovernance, with selected examples of distinct service delivery clusters. Trustworthy computing is introduced as the convergence between computing, the legal and the psycho-technical within the context of the processes and structures of the deployment of eGovernance systems and related technology systems. This gives provenance to the imperative for the need for a trusted business environment, a legal framework and valid laws of evidence, thus linking technology perspectives to building cyberlaw capacity for eGovernance.

PART I: Electronic Governance - From Conceptual Framework to Application

Good Governance: A New Paradigm in Public Administration Good Governance is a concept that has recently come into regular use in political science, public administration and development management. In the last decade, it

1 Support for this work was provided under the auspices of Victoria University of Wellington New Zealand jointly collaborating with Commonwealth Secretariat,London, United Kingdom. Presented at a Commonwealth Regional Pacific Workshop on Law and Technology, 1 – 5 November 2004, Wellington, New Zealand.

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has been closely associated with public sector reform. The Commonwealth has shown its commitment to Good Governance through declarations made by Heads of Governments and State at their biennial meetings. The Bretton Woods Systems and the Development Agencies have shown their commitment through re-defining their roles and responsibilities in global governance. Good Governance: The Commonwealth Perspective The 1991 Harare Commonwealth Declaration committed member governments to the democratic process and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government, fundamental human rights, including equal rights and opportunities for all citizens, regardless of race, colour, creed or political belief. As a goal and vision to be achieved in time, these intentions remain a fundamental milestone in the development agenda of member countries Good Governance: The Public Management Discipline Perspective Within the public management discipline or profession Good Governance has been regarded as an aspect of the New Paradigm in Public Administration which emphasises the role of public managers in providing high quality services that citizens and diverse communities of interest, communities of expertise and communities of inter-dependence value; advocates increasing managerial autonomy, particularly by reducing central agency controls, demands, measures and rewards, in relation to both organisational and individual performance; recognises the importance of providing the human and technological resources that managers require to meet their performance targets; and is receptive to competition and is open-minded about which public purposes should be performed by public servants as opposed to the private sector Good Governance: Inter- and Intra– Governmental Interfaces Perspectives Within the context of inter- and intra- governmental interfaces and transactions, Good Governance strives to effectuate collaboration as partners in business and alliances in the sharing of knowledge across institutions for comparative advantage within a trusted environment.

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Towards Reinventing Good Governance Discretionary Space and the Opportunity for a Generic Definitional Format From the foregoing, it is clear that there continues to exist some discretionary space left by the lack of a unique, well-defined scope for what Good Governance encompasses. This allows practitioners to choose and set their own parameters. Whatever definitional format Good Governance may assume, however, there is general consensus amongst practitioners that Good Governance should, among other things, be participatory, transparent and accountable in characteristic. In conformity with these three attributes, the following definition is advanced for Good Governance:

Good Governance may be defined as comprising the processes and structures that guide political and socio-economic relationships, with particular reference to “commitment to democratic values, norms and practices; trusted services; and to just and honest business”.

This definitional format is not inconsistent with the participatory, transparent and accountable in characteristics inherent in Good Governance as a mode of practice. Good Governance: Towards a 3-Tier Characteristic Inherent in the generic definition of Good Governance given above are three aspects that are fundamental to the following relationships, between Government and the citizen; Government and the public at large, and Government and business, namely: a democracy aspect, a service aspect , and a business aspect, all three manifesting within the context of Good Governance. As a corollary, Good Governance can thus be perceived to provide a framework within which political, social and economic priorities can be based on a broad consensus in society, and that the voices of the poorest and most vulnerable are heard in the decision-making processes regarding, among others, the allocation of resources or the way in which the citizens are governed. In addition, Good Governance has major implications for equity, poverty and quality of life.

Towards Informediating Good Governance: New Role for the New Information and Communication Technologies The emergence of the new information and communication technologies (ICTs) has all the attributes of imparting added value to the structures and processes that give identity, form and relationships that characterise Good Governance. In this context, it has

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become imperative to perceive the role of the new information and communications technologies in development in a new, pragmatic perspective, namely, as an enabler of people-centred development across the ‘development triad’ comprising Government, Civil Society and Private Sector (or Business): ● as enabler in the internal processes of government and in the government

delivery of services to the public ● as enabler in the processes of government-citizen interaction, consultation and

decision-making on how citizens are governed and ● as enabler in the process of government transaction with its “supply chain” and

the market, and collaboration with its partners and other governments. This new perspective of the new information and communication technologies (ICTs) can be deployed in a an equally pragmatic definition of the concept Electronic Governance (eGovernance).

Electronic Governance (eGovernance): A 3-Tier Definition

Figure 1: A Broad Definitional Schematic for eGovernance

Electronic Governance: The New Paradigm in Public Sector Reform

CITIZENS

CentralGovernment

LocalGovernment

WithinGovernments

BetweenGovernments

Fore

ign

Gov

ernm

ents

MARKETSeDEMOCRACY

eBU

SINE

SS

eGOVERNMENT

eGov

ernm

ent eBusiness

A DEFINITIONAL SCHEMATIC

PUBLIC

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Electronic Governance (eGovernance) may be defined as incorporating all those processes and structures by means which the new information and communication technologies (ICTs) can be deployed by Government to enable the following: ● Internal administration of the processes of government (eAdministration) and the

delivery of services to the public (eServices). This generically constitutes Electronic Government (abbreviated eGovernment);

● Informing, vote-enabling, representation-enabling, consulting and involving the

citizenry in, among others, broad consensus making in society in matters pertinent to decision making in political, social and economic priorities of government. This constitutes Electronic Democracy (abbreviated eDemocracy);

● Transacting business with its “supply chain”, namely, partners, clients and the

markets. This constitutes Government Electronic Business (abbreviated simply eBusiness).

The route to eGovernance is only now emerging, as governments and citizens around the world experiment with, and learn to exploit, new media and the new information technologies. Electronic Governance inherently involves new styles of leadership, new ways of debating and deciding strategies, new ways of accessing services, new ways of transacting business, new ways of accessing education, new ways of listening to citizens and communities of practice and new ways of organising and delivering information. As a concept, eGovernance can be perceived to be contextually inclusive of Electronic Democracy (eDemocracy), Electronic Government (eGovernment) and Electronic Business (eBusiness). Electronic Governance is easily the new paradigm in public sector reform. It offers opportunity for governments to re-invent themselves, get closer to the citizenry and the public at large, as well as to forge closer alliances and partnerships with partners, clients and the markets. As an initiative at a national, governmental, or community level, eGovernance can be perceived within the context of a country’s national information infrastructure (NII) which, in turn, can be perceived to be part of the emerging Global Information Infrastructure (GII). At the core of the Global Information Infrastructure lies the essence of the concept of flexible regulation, which holds the premise that at each level or phase of the communication process, the aim of regulation, in its broadest sense, should be bring about a set of goals or basic democratic values for society, including: Liberty, Equity, Community, Efficiency, Participatory Access and Universal Access.

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Electronic Democracy (eDemocracy)

Broadly, Electronic Democracy (eDemocracy) refers to the processes and structures that encompass all forms of electronic communication between Government and the Citizen. In a narrower perspective, eDemocracy refers principally to the processes and structures that encompass all forms of electronic communication between the Electorate and the Elected. Citizens the world over demand that governments be more open in their interaction with the civil society. Access to information and knowledge about the political process, about services and about choices available, is a characteristic requirement in all good governance systems. A more informed citizenry is in a better position to exercise its rights, play its roles, carry out its responsibilities and define its relationships to others; and citizens as consumers expect to be involved in the process of securing services to suit their needs, and to receive a higher standard of ‘customer care’ from government. Access to information is both a consequence, and a driver of, the digital revolution. Governments can respond to the need to be a more open government by adopting a number of principles of information management, using a ‘mix’ of technologies. This is reflected in Figure 2 below. Figure 2: Information Management Principles for Open Government Adoption

Pertinent Principles

Definition

Access Making information widely available to citizens,

consumers of services, voluntary and private-sector organisations, staff and elected members and to diverse communities of interest, practice, expertise, conviction and interdependence.

Process Providing information about how to gain access to government information systems (GiS), and participatory access to the political process of good governance.

Awareness Providing information about the political process, about services and about choices available, the time horizons for the decision-making process and about the exponents of the decision-making process.

Communication Developing means for exchanging learning experiences, views, information and knowledge of mutual interest.

Involvement Facilitating opportunities for involvement in the discursive development of information and knowledge for good governance.

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From Passive Information Access to Active Citizen Participation The emergence of Electronic Democracy (eDemocracy) is characterised by the transition from passive information access through to active citizen participation: Informing the Citizen, aiming to provide the citizen, electronically, with access to information, thus helping to effect the following: ● participatory access of the citizenry to Government information ● equality of access of the citizenry to Government information, and ● universality of access to public information. Representing the citizen, aiming to realise, electronically, the following, among others: ● enhancing the representative role of the elected politicians ● improving accessibility of the citizenry to their elected members, and ● developing the capacity of elected representatives to engage in eDemocracy. Encouraging the citizen to vote, aiming, among others, to involve citizens electronically in the following activities: ● The voting process (eVoting) ● Stimulating debate and exchanging views and information on matters pertaining

to voting (eVoices) ● Sharing experiences on the pros and cons of election monitoring for good

governance, with the aim to encouraging the citizen to vote. Consulting the citizen, aiming to carry out electronically-enabled tasks involving, among others, the following:

Government-initiated consultation process involving two-way communication and interaction with the citizenry

Consultation between the Elected and the Electorate aiming to increase citizen-participation in decision-making.

Involving the citizen, aiming to realise electronically, relative to specific issues to shape policy, the following: ● A vision for Government-Citizen partnership and/or Elected-Electorate alliance

for conjoint ownership of the decision making process ● Engaging communities of practice, expertise, interest, inter-dependence and

conviction in matters of Good Governance ● Developing individual and group skills and competencies for active participation

in matters of Good Governance ● Creating the conditions for information and knowledge relevant to civil society,

voluntary organisations and businesses to be generated and communicated more expeditiously and freely.

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Electronic Government (eGovernment) Electronic Government (eGovernment) refers to all those processes and structures by means which the new information and communication technologies (ICTs) can be deployed by government to enable two important functions, namely, (i) internal administration of government (eAdministration); and (ii) delivery of services to the public (eServices) (see Figure 3)

Figure 3: A Broad Schematic for eGovernment

GOVERNMENT Within Governments (eAdministration)

GOVERNMENT (eServices) (G2G) (G2C) (G2B)

Electronic Government (eGovernment) must acknowledge that Government is functionally differentiated, ie, it “has branches” (that is, Administration and Civil Service, Parliament, Judiciary and the Political and Executive functions; and Government, “has levels” (that is, a Central, Federal, Provincial, State, County or Local Government functionality); and Government "is sectoral" (namely, comprising developmental functional lines which can be perceived to fall under the Primary, Secondary and Tertiary sectors of economic development). To this end, eGovernment can be effectuated within and between Governments (spanning the branches, levels and sectors) as well between Government and the citizens and the public at large, which can be perceived to include human communities and organisational entities, both governmental and private as well as non-profit making. The topics of eGovernment as a concept will thus transcend purely governmental

LOCAL GOVERNMENT

THE CITIZENRY

ORGANISATIONAL ENTITIES (BUSINESS, & NGOs,)

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boundaries to include government public service delivery, where the public can be perceived to be contextually inclusive of citizens, human communities, and organisational entities (inclusive of busness or private sector organizational entities, governmental entities and non-governmental not-for-profit organisational entities. Government Electronic Business (eBusiness) The benefits of eGovernment will continue to depend on the realisation of technical advances in Electronic Business (eBusiness) in the broadest sense. Electronic Business (eBusiness) refers to the broader concept of not just buying and selling but also servicing customers and collaborating with business partners, and conducting electronic transactions within an organisational entity through the deployment of the new information and communications technologies. This perception of eBusiness contrasts sharply with the somewhat labyrinthine definition advanced by Lou Gerstner, IBM’s CEO, namely, that “eBusiness is all about time cycle, speed, globalisation, enhanced productivity, reaching new customers and sharing knowledge across institutions for competitive advantage.” Organisational entities will be taken to encompass central governments, local governments, public sector organisations, small and medium enterprises (SMEs), businesses and other commercial entities, and civil society organisations. It is important to note in particular that eBusiness (and hence eCommerce) is not a technology in itself, rather, eBusiness (eCommerce) is a consolidation of diverse resources, namely, telecommunications networks, computer software, harmonisation of business practices, standardisation of business data, all of which, put together, make electronic business and electronic commerce possible. Within the context of Government transaction and collaboration with partners, businesses and the markets, Government eBusiness, or simply Electronic Business (eBusiness) will comprise the following categories (Figure 4): ● Government to Government (G2G) exchange of information and commodities; ● Government to Business/Private (G2B) exchange of information and

commodities; and ● Business/Private to Government (B2G) sale of goods and services. The topics of Government eBusiness as a concept will thus transcend purely governmental boundaries to include government-government alliances and partnerships, government-private sector partnerships, government-business transactions (banking transactions and taxation; etc) justice and legal affairs, intellectual property rights, consumer safety, and marketplace protection; and even national security and import and export controls

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Figure 4 : A Broad Schematic for Government eBusiness

GOVERNMENT

Within Governments (G2G)

GOVERNMENT Between Governments (G2G) (G2B) (G2B)

PART II: Electronic Governance – Selected Perspectives Making Ingress to eGovernance – A Taxonomy of Levels of Evolution of eGovernance Ingress to eGovernance is considered to be evolutionary. At the datum level is the Internalisation level. The most important aspect of Internalisation is, perhaps, when Government begins to deploy ICTs in the enablement of internal processes of administration of government, namely, eAdministration. This is soon to be followed by Informing, when Government begins to deploy ICTs to inform the citizenry and the public at large. Then Interacting and Transacting, followed by Integrating and Transforming. The attributes of these levels in the taxonomy of evolution of eGovernance are listed under eGovernment, eDemocracy and eBusiness (Figure 5).

LOCAL, OR FOREIGN GOVERNMENT

THE MARKET

PARTNER ORGANISATIONS

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A consequence of this classification is the practical application of the taxonomy of evolution of eGovernance. This manifests itself in the implementation of Informations Provision (One-Way), Interaction (Two-Way) and Transaction (Pay-For/Revenue) Service Delivery Cluster initiatives put in place by various Governments, depending on their level of ePreparedness. Figure 6 A, B and C provides typical examples of these service delivery modes by Government. Figure 7 gives insight on the expectations for a Fully Integrated Service Delivery Cluster.

Web-based services will continue to take new shape and form as technologies become increasingly integrated in society. The Fully Integrated Service Delivery Cluster will hav the following characteristics: ● One-stop Service Delivery, namely, comprising a seamlessness in which the

information systems of all departments & agencies can be linked to deliver integrated services in such a way that avoids citizens having to understand the complicated internal organisational structures of Government;

● Non-stop Service Delivery, that is, aiming for a 24 x 7 service delivery

efficiency; and ● Anytime Anywhere availability and accessibility of Government service

through diverse delivery channels (counters, call centres, community access centers (CACs), kiosks, InteractiveDigitalTV, Web, etc)

Figure 5: Making Ingress to eGovernance – A Taxonomy of Levels of Evolution of eGovernance eGovernance eGovernment eDemocracy eBusiness Level 0: Internalisation

eAdministration _ _

Level 1: Information

Service Delivery Information

Informing Representing

Marketing

Level 2: Interaction

Service Delivery Interaction

Encouraging Voting; Voting

Interacting

Level 3: Transaction

Service Delivery Transaction

Consultation + Doc Exchange

Business Transaction

Level 4: Integration

Integrated Service Delivery

Integrated Empowerment

Integrated Biz Transaction

Level 5: Transformation

The Rise of Digital Government

Involving: Consensus Building/ Decision Making

Transforming and Reinventing Government Business

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Figure 6 A, B, C & D: Examples of Seamless Services Delivery Around Service Clusters

dddgRNMENT EXAMPLES

SeSse dd

VERNMENT

EXAMPLES

INFORMATION PROVISION SERVICE DELIVERY CLUSTER

● Announcements ● Coming Events ● Commodity Prices ● Legal Advice or Legal Aid ● School/College Institutions ● Public Transport Timetables ● Hospital Services ● Government Job Opportunities and Job

Advertisements ● Self Help or Counselling ● Emergency Medical & Accident Advise ● Seek Opportunities (Business, Export,

Training, Employment) ● Road Traffic Conditions ● Weather Bulletin ● Overseas/Foreign Travel Advice and

Guidelines.

FIGURE 6 A: Examples of a One-Way Informational Service Delivery Cluster

INTERACTIONAL SERVICE DELIVERY CLUSTER

Submission or Registration of the following: ● Birth, Marriage, or Death; ● Police or File Reports; ● Voters Roll; ● Tax Returns.

Application for the following: ● School, College, University or other

Government institution ● Learners Driver Licence ● Passport and/or Visa ● Government Housing ● Social Welfare Grants ● Pension Benefits ● Government Subsidies.

FIGURE 6 B: Examples of a One-Way Interactional Service Delivery Cluster

TRANSACTION (PAY-FOR/REVENUE) SERVICE DELIVERY CLUSTER

● Payment of Utility Bills ● Payment of School or College Fees ● Payment of Government Housing Rent ● Payment of TV Licence ● Payment of Driver’s Licence ● Payment of Passports ● Payment of Traffic Offences ● Payment of Government Bonds ● Payment of Government Auction Items ● Payments of Community, Property or PollTax FIGURE 6 C: Examples of a Pay-For/Revenue Service Delivery Cluster

FULLY INTEGRATED SERVICE DELIVERY CLUSTER

Combines Transactional, Interactional and

Informatiuonal modes of service delivery cluster in a seamless manner.The Singapore Citizen Portal is such an example in the real world.

FIGURE 6 D: Examples of a Fully Integrated Service Delivery Cluster

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Figure 8a and Figure 8b give an illustration of an integrated service delivery of another kind, one based on Key Life Cycle Events for a Citizen’s Life and an Organiosation’s Life, respectively.

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One-Stop Service

Non-StopService

Anytime Anywhere

eCRM

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Figure 8a: Examples of Key Life-Cycle Events with Implications for eGovernment in a Citizen’s Life Birth Health Tax Land Utility Investment Vehicle Voter Elderly … … & Medicare Registration (Water, Power, etc) Registration Registration Care Education Employment Social Property Marriage National Licences Pensions … Death Security Insurance (TV, Vehicle, etc)

Figure 8b: Examples of Key Life-Cycle Events with Implications for eGovernment in an Organisation Incorporation Funding Imports/ Sales Utility Investment Vehicle Accreditation Public-Private … … Subsidy Exports (Water, Power, etc) Registration Partnership (PPP) Finance Human Purchases/ Administration Corporate Statutory Licences Pensions … Liquidation Resources Procurement Citizenship Requirements (TV, Vehicle, etc)

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One practical mode of effecting Government WebPresence is to invoke the Scattered Portal Scenario for Public Service Delivery (Figure 8)

Figure 9: Public Service Delivery Model : The Scattered Portal Scenario Public Services Directory: Electronic Front End Government Portals | Education | Commerce & Industry | Health | … | Social Services | Justice | Defence | Education Commerce & Industry Local Govt Justice Public Social Services Services Inland Revenue Delivery Health Employment Transport Power Utility Defence Environment Government Departments

Public Services Support: Traditional Back End A recent study of eGovernment initiatives worldwide, as perceived at their conception or initial formative stage shows, that : ● eGovernment is at an early stage of development ● common approaches in the use of trusted services within the context of

eGovernment are not yet visible; and ● the market, through public private partnerships (PPP), need to develop

solutions that could be adopted in future.

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Part III: Trustworthy Computing - eSecurity, eLaws and eTrust

Technology Perspectives The context of evolving cyberlaw capacity for eGovernance has its provenance in the following three 2-tier taxonomy of levels of evolution of eGovernance: ● Internalising and Informing, which represent, respectively, the level of

internal administration of the processes of government and the level of process of Government delivery of services to the public, for example;

● Interacting and Transacting, which represent, respectively, the level of

exchange between citizens and government (eg electronic forms), and the level of “exchange value” communication such as purchase of a product or service, for example;

● Integrating and Transforming, which comprise combinations of

internalisation, informing, interacting, and interacting and much more. Internalising and Informing comprise entry-level eGovernance processes, structures, and systems. They are characterised by information-sharing applications, which can be used by Government as a means of disseminating or publishing information on government activities, strategies and policies. At this functional entry-level level of eGovernance, the issue of privacy or that of security does not arise. For example, confidentiality is not an issue, nor is there need for users to establish their identity. However both the integrity and availability of information is important. Interacting and Transacting comprise next-level eGovernance processes and structures. They are characterised by “one-way” communication and “exchange value” communication applications, which are perceived to allow limited client access. In particular, one-way interaction activities are possible, such as the following: ● clients are able to lodge, register, or submit electronically to Government

certain personal information ● clients are able to apply electronically for specific Government services ● simple eBusiness/eCommerce Systems.

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Significant to note in “one-way” communication as perceived here would require the need for protection of privacy of identity, data and communication. In addition, the need remains to ensure the confidentiality, integrity and availability of data. “Exchange value” communication allows full client access, namely, two-way interaction and transactional activities are possible, involving, for example, eGovernment Pay-for/Revenue service delivery clusters. There are new issues introduced in transaction-based systems, which include the need for authentication and non-repudiation as applied to messages. Furthermore, the introduction of electronic signature (eSignature) and associated technologies become crucial to the success of electronic transactions. Trust and Confidence in Full eGovernance Systems Trustworthy Computing (twc) is an evolving discipline that may be perceived to represent the convergence between computing, the legal and the psycho-technical in the processes and structures of deployment of eGovernance systems and related technology systems, as humanity continues making rapid transitions to working, living and learning in the wired world. There is need for the citizen, the consumer and/or the supply chain entity to have Trust and Confidence in eGovernance systems (Figure 10 and Figure 11) as a vehicle for promoting Trustworthy Computing. Three basic elements are essential for the purpose of promoting Trustworthy Computing, namely: ● a trusted business environment, which provides an essential basis for the

psycho-technical component of rustworth computing (twc), by virtue of an imperative to exercise duty of care for (i) security of data, networks and communication (eSecurity), (ii) trust in eGovernance systems related technology systems (eTrust);

● a suitable legal framework, which provides a primary basis for the legal

component of trustworthy computing (twc), by virtue of playing the role of (i) articulating an axiom of existence for eRecords, eDocuments, eMessages, eSignature, etc in the legal context, and (ii) effecting admissibility and recognition of eRecords, eDocuments, eMessages, etc in the legal context; and

● valid laws of evidence, which serve to provide legal definitions and

interpretations of core electronic ‘entities’ and ‘processes’ and provide a suite of laws for deployment within the context of working, living and learning in the wired world (eLaws). The suite of eLaws for building

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cyberlaw capacity for eGovernance include eEvidence law for, among others, according legal validity, effect and force to eRecords etc; and laws for protection of eTransactions, ePrivacy, eProperty; and laws for the addressing of eCrimes and eCompetition; as well as laws for the addressing of Fiscal Incentives and Freedom of Information.

Figure 9: Building Trust and Confidence in eGovernance Systems

A Trusted Business Environment …

Availability (of data) Integrity (of data) Confidentiality Identity Privacy of identity,

data, communication Non-repudiation Authentication

A Suitable Legal Framework Recognition of electronic

documents, electronic records, electronic (digital) signatures [generically electronic data messages] as having legal effect, force & and validity;

Admissibility of electronic data messages in court.

Valid Laws Of Evidence

▼Electronic Evidence ▼Freedom of Information Law (eEvidence) Law ▼Cybercrime & Computer Misuse

(eCrimes) Law ▼Electronic Transaction ▼Intellectual Property (eProperty ) Law

(eTransaction) Law ▼Fiscal Incentive Law ▼Privacy (ePrivacy) Law ▼Competition (eCompetition) Law

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Figure 11: Building Trust and Confidence in eGovernance Systems in the context of Trusworthy Computing (twc)

Security of data, networks, communication (eSecurity)

Trust in (eGoverance) systems (eTrust)

Figure 12 depicts a “Technology and Cyberlaw for eGovernance Framework”2 The framework comprises a categorisation of information systems, electronic networks and data communications into a hierarchy of functionalities defined by the following attributes: ● information provision only ● limited interaction only ● transaction processing The framework has implications for the derivation of a number of attributes that may be perceived as necessary ‘socio-technical’ ingredients for building cyberlaw capacity for eGovernance: 2Okot-Uma,Rogers WO, eGovernance: A Definitive Treatise, forthcoming 2004, Nov/Dec 2004 , Commonwealth Secretariat and SFI Publishing

Trusted Business Environment

Valid Laws of Evidence Suitable Legal Framework

Trustworthy Computing

(Basis for Trust

& Confidence)

● Axiom of existence of eRecords, eDocuments, eMessages, eSignature, etc (computing) in the legal context

● Admissibility and Recognition of , eRecords, eDocuments, eMessages, etc in the legal context

● Legal definitions and interpretations of core electronic ‘entities’ and ‘processes’

● A suite of laws for deployment I the wired space (eLaws)

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● integrity and availability of data ● confidentiality of data ● privacy of identity, data and communication.

On Trusted Services and Public Key Infrastructure Common approaches in the use of trusted services within the context of eGovernance are only now becoming widely visible. Current approaches are to date supported by the concern that technical and usage standards are not yet fully mature, which may present possible interoperability issues, particularly in the areas of : ● certifications compatibility ● certification use by applications ● structure of certification ● consistency approach in structuring how certificates are handled by

directories. From the standpoint of the ICT infrastructure for eGovernance, a trusted business environment is habitually designed to be based on the use of the Public Key Infrastructure (PKI). PKI is, in turn, is based on the use of electronic certificates. Electronic certificates have the functionality of binding the identity of a person or organisation and the ownership of a public key. The central component of a PKI is the Certification Authority (CA). The Certifification Authority is a trusted third party charged with the issuance and management of electronic certificates. It is important that the trusted environment can operate on a large scale and this can be achieved by CAs mutually recognising each other’s electronic certificates through some accreditation mechanism, process or other. Electronic (digital) Signatures refer to signatures that use public key technology and result in a user’s identity being cryptographically bound to the document or entity being signed. This interpretation is broadly equivalent to the term “advanced electronic signature” defined in the EU Directive on Electronic Signature and the US Government use of the term “digital signature” defined under the Government Paper Elimination Act.

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Information Network Systems Information Provision Only …

Announcements (General) Bulletin of Coming Events Commodity Prices Daily Weather Bulletin Emergency Medical & Accident Advise Frequently Asked Questions on Government

Issues Government Legal Aid/Advice Information Hospital Services Overseas/Foreign Travel Advice and Guidelines Public Transport Timetables Road Traffic Conditions Seek Opportunities (Business, Export, etc)

Significant: Integrity and Availability of Data

Client Access Systems Limited Interaction only …

Submission or Registration of the following: o Birth, Marriage, or Death; o Police or File Reports; o Voters Roll; o Tax Returns.

Application for the following: o School, College, University or other Government

institution; o Learners Driver Licence; o Passport and/or Visa; o Government Housing; o Social Welfare Grants; o Pension Benefits; o Government Subsidies

Significant: Privacy of Identity, Data and Communication. Confidentiality, Integrity and Availability of Data

Full eGovernance Systems Transaction Processinhg … Essential: Promotion of Confidence & Trust in eGovernance Systems ( as well as eGovernment, eCommerce, or eBusiness Systems) comprise three elements:

A Trusted Business Environment o A Suitable Legal Framework (which

recognises electronic (digital) signatures as having legal effect and validity); and

Valid laws of evidence (providing for the admissibility of electronic documents and electronic signatures in legal proceedings).

A Trusted Business Environment …

Identity Confidentiality Non-repudiation Integrity Authentication

A Suitable Legal Framework Recognition of electronic

documents, electronic records, electronic (digital) signatures [generically electronic data messages] as having legal effect, force & and validity;

Admissibility of electronic data messages in court.

Valid Laws Of Evidence ▼Electronic Evidence ▼Freedom of Information Law (eEvidence) Law ▼Cybercrime & Computer Misuse

(eCrimes) Law ▼Electronic Transaction ▼Intellectual Property (eProperty) Law (eTransaction) Law ▼Fiscal Incentive Law ▼Privacy (ePrivacy) Law ▼Competition (eCompetition) Law

Figure 11: Technology and Cyberlaw– 4 - eGovernance Framework

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The result is the derivation of a suite of laws that may be described as Valid Laws of Evidence. Valid Laws of Evidence have been instrumental in the provision of a checklist for Generic Model Laws (Figure 13) for eGovernance is an example of a practical framework for valid laws of evidence. Commonwealth Secretariat’s set of Model Laws had its provenance in the 2002 Commonwealth Law Ministers Meeting in St Vincent & The Grenadines, which commended a number of Model Laws dealing with technology, and asked the Secretariat to continue to work with senior officials in the area of Law and Technology to ensure that the laws remained current and reflective of the interests of Member Countries, particularly small and developing states.

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Figure 13: A Checklist for Generic Model Laws for Building Cyberlaw Capacity for eGovernance (Source: Adapted from Okot-Uma, Rogers W’O, eGovernance: A Definitive Treatise, forthcoming 2004, Nov/Dec 2004 , Commonwealth Secretariat and SFI Publishing) Generic Model Legislation Functionality 1 Electronic

Evidence (eEvidence)

Electronic Evidence (eEvidence) Law is an Act with the object to make provision for the legal recognition of, or according legal effect, force and validity to the following:

Electronic data messages Electronic records (eRecords); Transactions conducted entirely electronically

(eTransactions); and Electronic signatures (eSignatures);

and to facilitate the admission of such records, transactions or signatures into evidence.

2 Electronic Transactions (eTransactions)

Electronic Transactions (eTransaction) Act is an Act with objects aimed to realise following:

Eliminate legal barriers to the effective use of electronic communications in transactions;

Promote the harmonisation of legal rules on electronic transactions across national boundaries;

Facilitate the appropriate use of electronic transactions; Promote business and consumer confidence in

electronic transactions; and Enable business and the consumer to use electronic

communications in their transactions with government.

3 Privacy (ePrivacy)

Privacy Act is an Act with the object to do the following: Make provision for the collection, holding, use, correction

and disclosure of personal information in a manner that recognises the right of privacy of individuals with respect to personal information.

4 Cybercrime

and Computer Misuse Act (eCrimes)

Cybercrime Law is an Act with objects to address the following:

Unauthorised alteration of, destruction of, or interference with, the use of computer data (hacking);

Unauthorised access to, or use of, a computer system; Unlawful use of a computer system; Unauthorised interception of computer communications; Telecommunications fraud (“phreaking”); and Deliberate transmission of a computer virus.

5 Intellectual

Property (eProperty)

Intellectual Property Law is an Act with main object to protect electronic property rights. Includes trade and transactions(eTrade and eTransactions) of content (digital content) or intellectual property in cyberspace (eProperty), namely:

Offerings and sales in cyberspace of securities, insurance and real estate (including such rules relating to licensing and disclosure requirements, as well as limitations on where such companies might do business);

Liabilities for Intemet service providers ??. Patents, trademarks, and copyright as applicable to the

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digital environment; IP Rights to include the new intellectual products

candidates of the digial age, including: domain names (eg ccTLD) and databases, software designs, and software applications.

6 Freedom of

Information Freedom of Information Act is an Act with the object to give members of the public rights of access to information or official documents in the possession of the Government and public authorities by:

Making available to the public information about the operations of public authorities and, in particular, ensuring that the rules and practices affecting members of the public in their dealings with public authorities are readily available to persons affected by those rules and regulations;

Creating a general right of access to information in

documentary form in the possession of public authorities limited only by exceptions necessary for the protection of essential public interests ad the private and business affairs of persons in respect of whom information is collected and held by public authorities; and

Creating a right to bring about the amendment of

records containing personal information that is incomplete , incorrect or misleading.

7 Fiscal Incentive Fiscal Incentive Laws are Acts with objects to provide

incentives (or remove disincentives) for the purpose of promoting the development of national capacity to produce, deploy or apply the new information and communication technologies or to for the purpose of promoting competititveness in eCommerce/eBusiness. Includes the following:

Customs Laws. These are Acts enacted with the objects to remove onerous, dilatory procedures with respect to the importation of equipment to be used in the IT sector, and to minimise the use of often duplicative and unnecessary forms;

Tax Laws: Tax Laws are enacted to explore the development of income tax concessions for IT/eCommerce workers and companies alike, GCT, equivalent, or similar VAT and sales taxes concessions on IT/eCommerce products and services, and concessions on foreign direct investment in IT-related equipment acquisitions. Such Tax Laws are also expected to explore the installation of tax credits to companies who provide IT training to their employees.

Co-Investment Legislation: Co-investment Legislation is enacted to effect public sector stimulation in becoming involved in funding private sector IT activities, either through direct loan or grant participation on projects or through brokering such activities with development funding agencies and other sources of funding.

8 Competition

(eCompetition) Competition Law is an Act with the object to control and eliminate anti-competitive agreements and arrangements

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between enterprises or through mergers and acquisitions or by the abuse of dominant position of market power, which limit access to markets or otherwise prevent or lessen competition to establish a Competition Authority.

Last Word Building Cyberlaw Capacity for eGovernance: Technology Perspectives provides a pragmatic framework for eGovernance from concept to practice, deploys this framework to provide points of ingress to eGovernance as a mode of practice in a national jurisdiction, and introduces trustworthy computing as that perspective which links computing to the legal and the psycho-technical, as humanity progressively makes the transition to working and living and learning in the wired world. This in turn lends itself to the need for a trusted environment, a suitable legal framework and valid laws of evidence for deployment in human activities in cyberspace. References 1 Okot-Uma, Rogers W’O, Electronic Governance: Abridged Conceptual Framework,

http://www.commonwealthdigitalopportunities.com/gif/eGovernance.pdf, accessed 10 November 2004.

2 Okot-Uma, Rogers W’O, Electronic Governance:: A Conceptual Framework, Commonwealth

Public Administration Reform 2004, TSO in association with Commonwealth Secretariat 2004. 3 Okot-Uma, Rogers W’O, Critical Success Factors for National IT Strategies, Commonwealth

Public Administration Reform 2004, TSO in association with Commonwealth Secretariat 2004 4 A Compendium of Model Laws for eGovernance, Commonwealth Secretariat 2003. 5 Electronic Communications Act & Transactions Act 2002, Government of the Republic of South

Africa 2002 6 Report of Law and Technology Workshop for the Caribbean, Kingston, Jamaica, 3 – 7

November 2003, Commonwealth Secretariat 2003. 7 Report of Law and Technology Workshop for Asia, Colombo, Sri Lanka, 21 – 25 November

2003, Commonwealth Secretariat 2004 8 Okot-Uma, Rogers W’O, Commonwealth Strategy for the Digital Divide, Commonwealth

Yearbook 2003, TSO in association with Commonwealth Secretariat 2003. 9 Okot-Uma, Rogers W'O. Worlds Apart: The Challenge of the Digital Divide, Health in the

Commonwealth - Priorities and Perspectives 2001/2002, Kensington Publications and Commonwealth Secretariat (2002).

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10 Okot-Uma, Rogers W’O, National IT Strategies: Selected Perspectives for Good Practice in Public Sector Management, Speaker Papers, African Computing and Telecommunications Summit, South Africa, 30 July – 3 August 2001, Pretoria, South Africa.

11 Okot-Uma, Rogers W'O, Emerging Commonwealth Countries on the Road to Electronic

Business, The Commonwealth Ministers Reference Book 2001/2002, Kensington Publications, Ltd in association with Commonwealth Secretariat, 2001.

12 Law in Cyber Space, Commonwealth Secretariat 2001. 13 Okot-Uma, Rogers W'O. Promoting Confidence in Electronic eBusiness, Commonwealth

Business Council Publication on eCommerce, 2000. 14 Professor Thomas B Riley, Rogers W’O Okot-Uma (Ed), Electronic Governance and Electronic

Democracy: : Living and Working in the Wired World, Commonwealth Secretariat & SFI Publishing (December 2000).

15 Okot-Uma, Rogers W’O, Electronic Governance: Reinventing Good Governance, Proceedings

of African Computing and Telecommunications Summit, South Africa, 29 August – 1 September 2000, Sun City, South Africa.

16 Sam Agere (Ed), Promoting Good Governance: Principles, Practices and Perspectives,

Commonwealth Secretariat, London (2000). 17 Access, Empowerment and Governance in the Information Age, NITC Malaysia Publication,

Kuala Lumpur (2000). 18 Governance in an Internetworked World: Towards a Global Civilised Society, NITC Malaysia

Publication, Kuala Lumpur (2000). 19 Rogers W’O Okot-Uma and Larry Caffrey (Eds), Trusted Services and Public Key Infrastructure,

Commonwealth Secretariat, London (2000). 20 Larry Caffrey and Rogers W’O Okot-Uma (Editors), Government Secure Intranets,

Commonwealth Secretariat & SFI Publishing (December 1999). 21 Okot-Uma, Rogers W'O, and Kaul, Mohan, Promoting E-Commerce in Developing

Economies, in Information Technology and Globalisation: Implications for People-Centred Development,, SFI Publishing, November 1999, London.

22 Developments in Electronic Governance, British Council, Manchester (1999). 23 Larry Caffrey (Ed), Electronic Government in the Information Society, ICA – International Council

for Information Technology in Government Administration, London (1996). 24 Larry Caffrey (Ed), ICA Information: General Issue 1998, London(1998).

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