Suggestions for the EU declaration on e-government

For Europe's digital self determination

2017-07-11

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Acting on behalf of the Estonian presidency of the EU, the Lisbon Council has opened up a feedback process on e-government in order to gather the input of citizens. The suggestions are collected and will be presented to the EU Member States. The deadline for submissions is July 14, 2017. Chances are that some ideas will make it into the final text, expected to be signed on October 6, 2017.

Below are my extended contributions to the original text. A short notice on methodology is in order. The original is first quoted verbatim and then what follows is either the paragraph written anew or with my additions inline. The latter use strong emphasis (bold typeface). The § section sign is used to reference the number of the paragraph in question. Every amendment of mine starts with either of the two notices, to signify its extent: full or partial.

For digital self determination

§1 Many things have changed since the Malmö declaration on e-government. The financial crisis has evolved into a prolonged period of high unemployment and sluggish growth. Populist parties are on the rise. And there has been a palpable and trackable decrease in the level of trust that citizens place in national and European institutions

full Many things have changed since the Malmö declaration on e-government. The financial crisis brought into question the integrity of private actors and the capacity of public authorities to regulate them effectively. It also exposed weaknesses in the design of the Economic and Monetary Union, calling for an overall rethink of economic governance. Sustained economic recovery remains elusive, while citizens have yet to regain full confidence in national and European institutions.

§2 This decline in trust is important. It is seriously threatening free trade, the foundations of democracy, the unity of Europe and possibly world peace.

full The resulting decline in trust is a potential threat to the stability of unity in Europe. It can reduce the overall legitimacy and sense of ownership over the policies of public authorities. Disillusionment and an overall feeling of negation can work to the detriment of democratic voices and in the favour of demagogues with racist or authoritarian agendas.

§3 Thus the fundamental question that arises in this distinctly modern climate is: How can we re-build a climate of trust? And how can digital government help?

full Part of restoring trust with citizens lies in bringing decisions closer to them, while increasing the transparency of policy-making. Officials should act in the open and should be responsive to popular feedback and public scrutiny. To that end, digital means, including in areas of governance, provide a unique opportunity to achieve two goals at once: (i) meet the needs of an ever interconnected world, and (ii) restore the virtuous cycle of legitimation and accountability between public institutions and citizens.

§4 To be fair, European countries have progressed strongly on e-government. They are providing more online services, not by simply substituting paper processes with online forms but by driving deep changes in both front office and back office. New fundamental legislation such as eIDas Regulation, PSI Directive and the New Interoperability Framework provide the legal framework for the cross-border recognition of eID, for open data and for interoperability, respectively. A set of dynamic, composable building blocks are in place for delivering cross-border services: eInvoicing, eDelivery, eSignature, eID, and eTranslation.

partial To be fair, European countries have progressed strongly on e-government. They are providing more online services, not by simply substituting paper processes with online forms but by driving deep changes in both front office and back office. Nevertheless, progress is slow on the adoption of free and open source software for regular office tasks such as drafting documents or preparing spreadsheets and presentations. New fundamental legislation such as eIDas Regulation, PSI Directive and the New Interoperability Framework provide the legal framework for the cross-border recognition of eID, for open data and for interoperability, respectively. A set of dynamic, composable building blocks are in place for delivering cross-border services: eInvoicing, eDelivery, eSignature, eID, and eTranslation. Parallel to action on the legislative front, more effort must be put in minimising the expose to proprietary, closed source software offerings, so that public institutions and citizens can gain greater digital sovereignty and, thus, minimise the influence of a handful of multinational ‘software giants’ over the direction of policy.

§5 But this progress is not enough to match the speed and size of the challenge. Citizens have not experienced the radical change that the Malmö Declaration committed to achieve by 2015. Just as an example, from 2009, citizens have become accustomed to purchasing online (grown from 36 to 55%) but much less to using online public services (from 18 to 28%). We need a new declaration to ensure strong and renewed political commitment towards an end-to-end digital government experience for all citizens.

partial But this progress is not enough to match the speed and size of the challenge. Citizens have not experienced the radical change that the Malmö Declaration committed to achieve by 2015. Just as an example, from 2009, citizens have become accustomed to purchasing online (grown from 36 to 55%) but much less to using online public services (from 18 to 28%). Meanwhile, exposure to legacy operating systems and/or tools with universal backdoors provide vectors for cyber attacks, even putting lives at risk. Security patches for proprietary, closed source software, can only be provided legally by the issuing private entity itself, thus preventing citizens from monitoring and evaluating the digital instruments used by the authorities. We need a new declaration to ensure strong and renewed political commitment towards an end-to-end digital government experience for all citizens. A new declaration that will, among others, provide for the principle that all publicly financed software should be free for study, reuse, modification, and redistribution under the terms of a free software license (such as the GNU General Public License).

§6 The declaration should be ambitious but also realistic, rooted in the startup culture, built around the notion that the key to innovation is implementation (and not just new ideas), and focused on a limited set of key principles that can improve citizens’ experience, lead to a better citizen/state relationship and generate change. We therefore propose to focus on three fundamental principles: once only, open government, identity and security, accompanied by a set of implementation measures.

full The overarching ambition of the declaration should be to embed democratic norms and practices in the development and use of software. Digital governance should be rooted in free-libre software culture, in the genuinely sharing economies it fosters, and the cross-pollination of innovation and implementation offered by collaborating on software with an open source and a free license. The principles guiding the declaration should be both utilitarian and normative. On the one hand, digital governance should improve the lives of citizens and make public entities more efficient at their task. On the other, citizens should have tangible power over the software used by the authorities, be able to send bug fixes, security patches, and even write new features to be merged or considered upstream. Hence the need for free software, rather than proprietary, closed source offerings. The declaration must, therefore, envisage four fundamental principles: (i) once only, (ii) open government, (iii) identity and security, and (iv) digital self determination. Implementation measures should be included as well.

§11 Gradually develop EU level standards for data interchange, possibly including unique identifiers at EU levels for basic data, in line with the European Interoperability framework 2.0.

partial Gradually develop EU-wide standards for data interchange, which will be used by all public entities at every level of government, possibly including unique identifiers at EU levels for basic data, in line with the European Interoperability framework 2.0.

§12 Allow citizens and enterprises to access, edit and port their data owned by public administration, and EU institutions should do the same for all EU-level databases. Citizens should also have a right to algorithmic accountability and transparency, such that citizens can understand and challenge decisions based on algorithms.

partial Allow citizens and enterprises to access, edit and port their data owned by public administration, and EU institutions should do the same for all EU-level databases. Citizens should also have a right to algorithmic accountability and transparency, such that citizens can understand and challenge decisions based on algorithms. The source code of the programs must be open and the license must be that of a free piece of software, so that any person or group thereof can study the algorithm in its fullness, propose amendments where necessary, and share those modifications with the public also as a means of digital mass demonstration.

§16 Introduce a “collaboration by design” approach in e-government. Software component should be developed with clear indications on how third parties (public and private) can reuse and integrate their services, while relying on open source solutions and open standards whenever appropriate, following the principles of “reuse, publish and aggregate” mentioned in the European Interoperability Framework and by adopting co-design practices. At EU level, this approach should be pursued thoroughly in the context of digital service infrastructures, building blocks and cross-border services.

partial Introduce a “collaboration by design” approach in e-government , complemented with the ethics of free software for development, use, distribution, and adaptation. Software component should be developed as free software, while, in principle, relying on free and open source solutions and open standards whenever appropriate, following the principles of “reuse, publish and aggregate” mentioned in the European Interoperability Framework and by adopting co-design practices. At EU level, this approach should be pursued thoroughly in the context of digital service infrastructures, building blocks and cross-border services. It should also go hand-in-hand with a concerted effort at insulating and protecting public institutions from the growing influence of a handful of ‘software giants’, in the interest of reinforcing Europe’s digital self determination and restoring the trust of citizens in the moral integrity of decision-makers and the bodies that oversee the economy.

The new section on the fourth principle of digital self determination

To be included under the “additional ideas” section of the original document. Though its actual place is prior to the “implementation measures” section. Everything in this section is a full addition.

The declaration comes at a time when Europe needs to cope with rising challenges to its economy, social cohesion, and security. Underlying all those issues is digital technology. To meet the needs of its citizens, the European Union must broaden its understanding of cyber space as a domain of public interest and initiative, similar to traditional domains of statehood such as territoriality. To this end, we propose the following:

• Establish a specialised unit within the European Commission specifically for handling the digital transition at the supranational level. The unit should be tasked with producing or adapting free software tools for the administrative tasks of all EU institutions, as well as developing policy initiatives that would incentivise public and private stakeholders to contribute to free software for public policies or causes, such as in education and healthcare. Member States would be encouraged to create their own national units or ministerial departments in an effort to amplify, improve, and transpose into national context the work done by the Commission.
• Enshrine software accountability in law. European institutions and public entities in general should explain in detail the reasons behind any potential choice of theirs to use proprietary, closed source software in the pursuit of their tasks. Authorities should further be held accountable for the concomitant exposure to the agenda of a corporate actor and the extent to which the use of proprietary software hampers the collective self determination of citizens in digital space.
• Earmark a portion of the European budget (Multi-annual Financial Framework) to the financing of existing free software solutions that already serve the needs of digital governance. By shepherding and streamlining such projects, the EU can be a catalyst in liberating public and private entities from their dependency on proprietary, closed source offerings whose business model hinges on artificial scarcity. Furthermore, the channeling of European funds will boost the profile of those projects, bring in more contributions, and potentially have positive externalities in other pieces of free software.
• Commit additional resources to free software projects, such as by hiring programmers to spearhead the development of bespoke features that serve the needs of the EU, its Member States, and European citizens. Major candidates are the Operating System (such as a GNU/Linux distribution, like Debian), the office suite (such as LibreOffice), task management solutions, as well as communication tools for email, encrypted messages, and video-conferencing.
• Disclose in a responsible manner any security vulnerabilities in free software and provide the necessary patches. Any innovation achieved in-house by public entities should eventually be shared with the wider free software community, in an attempt to invigorate the virtuous cycle of using, studying, adapting, and redistributing free software.
• Expand the European Charter of Fundamental Rights with a comprehensive set of individual and collective digital freedoms, such as software accountability, the right to petition algorithmic decision-making, net neutrality, the right to be forgotten, the right to appeal the use of proprietary software by public entities, and others. Furthermore, any trade agreement with third countries should have a “fundamental and digital rights clause” which should render explicit that the pact is only valid for as long as the rights of citizens are safeguarded.

Concluding remarks

It is encouraging that citizens can offer their own ideas on such a text. Europe is in a position to be a global leader in this area. Free software is key to collaboration and openness. Digital self determination is the single most important new normative issue revealed by advances in communication technology.

Understandably, most of my amendments are more ambitious than what some decision-makers would be prepared to accept. Still, having the chance to share those views is of intrinsic value. Even if none of this makes it into the final text, an open feedback process is a step in the right direction. For that alone, the Estonian Presidency is to be congratulated.

This article has been sent to the Lisbon Council via email, as described in the website.