ICTlogy

Chairs: Marc Vilalta Reixach, Lecturer, School of Law and Political Science (UOC).

The implementation of ICTs in public administration at Girona (Spain)
Núria Galera (independent lawyer), Mariona López Ortiz (independent lawyer).

Most city councils in the province of Girona have websites. Though a little bit outdated in formal matters, many of them feature an electronic office through which administrative procedures can be performed.

Usually, the bigger the city, the bigger the investment in e-government.

Other initiatives besides e-administration:

• e-Rutes [e-routes], on supporting tourism through mobile apps.
• SIMSAP, for the management of the public health system, especially strengthening the management of inner communications and procedures.
• Girona, territori cardioprotegit [Girona, a cardioprotected Girona], a service that geolocalizes automated external defibrillators (AED).

10 years of recognised electronic signature. Did it have any significant impact in e-administration?
Ignacio Alamillo Domingo, researcher at GRISC, Universitat Autònoma de Barcelona, Nuria Cuenca León, laywer at the Universitat Oberta de Catalunya.

The legislating bodies recognize the electronic signature as valid as the handwritten one, opening the potential of being able to sign without physical presence. Notwithstanding, it does not seem that the electronic signature is juridically as valid as the handwritten one. This is both happening in e-administration procedures and in the field of electronic invoicing.

Spain initially was very ambitious in its plans on digital signature, but they were later loosened and the situation now is that digital signature is decreasing use and heads toward extinction.

Maybe other kinds of signature, more open or more broadly accepted or more fit to the needs of the procedure would be a good bet for future policies and regulation.

Effects of the implementation of a public procurement by electronic means and its incidence in the Spanish landscape: beyond a change of format
Jordi Romeu Granados, Doctorando en Gobierno y Administración Pública UCM – IUIOG, Carmen Pineda Nebot, Consultora de Administraciones Públicas, Gregorio Juárez Rodríguez Doctorando en Gobierno y Administración Pública UCM – IUIOG

e-Procurement have different effects.

Technical and administrative effects:

• Publicity and transparency.
• Accessibility and interoperability.
• Objectivity and limitations to arbitrary decisions.
• Efficacy and efficiency.
• Security and traceability of information.

Political and social effects:

• Open government.
• Limits to corruption.
• Social control.
• Collective intelligence.

Economic effects:

• concurrence and competitiveness.
• Economic savings.

Pioneer experiences in Spain: electronic public procurement model of the Basque Government (2002); electronic procurement system of the University of Almería; electronic public procurement of the City of Gijón (2013).

There are many benefits of e-procurement, and, presumably, no major inconveniences. It does require a change of culture with strong leadership.

Transparency in electronic public administration in the digital era
Belén Andrés Segovia. Doctoranda en Derecho Administrativo en la Universidad de Valencia

Citizens demand more of their governments than some services, or that these services are provided efficiently and with efficacy, but also that these services are provided ethically, objectively, and with transparency.

Thus, transparency can contribute to foster e-government, as they feed back each other positively.

But the Spanish Law 19/2013 of Transparency does not seem to be providing tools for that. It seems that the law is turning the walls of the Government into glass through which the citizen can look through, but all the information is stored on wooden or metal boxes, which you cannot inspect.

Chairs: Agustí Cerrillo Martínez, Chair professor of Administrative Law, School of Law and Political Science (UOC)

eGovernment as an instrument for the protection of the environment. Electronic services of environmental information (2003-2013)
Francisco Javier Sanz Larruga. Catedrático de Derecho Administrativo de la Universidad de A Coruña

GPS, LBS, SIGs, WMS, aerial photography systems… there are now plenty of ways to geolocalize information.

And we want all this information to be public so that citizens can use it for environmental purposes. Where’s the limit? How does it relate with privacy and other rights? In Spain, the Law 14/2010 deals with these issues, plus other laws that deal, for instance, with interoperability of databases.

This public information is increasingly useful for territory planning, for trials as evidence, etc.

Drones now are on a legal void, but can be very helpful in providing geographical information (especially through photography) and should thus be regulated.

On the administrative simplification and the perversion of electronic requests that neutralize the reduction of administrative burdens
Mª Dolores Rego Blanco. Profesora Titular de Derecho Administrativo. Universidad Pablo de Olavide.

How can we reduce non-justified, unnecessary or excessive requests to the government sent electronically?

First of all, what is an administrative burden? The issue is, that despite the fact that electronic requests have much lower costs than face-to-face (or traditional mail) requests, we may end up having so much electronic requests that the total cost could be higher than by traditional means.

We have to be careful, though, that when trying to add some requisites to avoid overwhelming requests, we do not harm the rights of the petitioners.

Digital administration and transparency in the Italian legal system
Enrico Carloni. Associate professor of administrative law at the University of the Studies of Perugia

Where is the balance between government transparency and the privacy, personal data protection, etc. of MPs and other elected representatives?

Digitization of most G2B relationships is bringing more traceability and thus transparency. But it is also putting some struggle to SMEs which are having difficult times to catch up with the evolution of technology, be it because of lack of infrastructure be it because of lack of skills.

There is a conflict between open data — gathering all the information and putting it together — and privacy — avoiding the collection of personal data in order to identify someone.

Chairs: Miquel Peguera. Professor, School of Law and Political Science (UOC).

Gerald Spindler. Professor of Civil Law, Commercial and Economic Law, Comparative Law, Multimedia- and Telecommunication Law at the University of Göettingen (Germany).
Liability of ISP providers – recent developments in the EU

Liability Privileges and injunctions:

• Art. 12 E-Commerce-Directive – Access Provider.
• Art. 13: Caching.
• Art. 14: Host-Provider.
• Art. 15: monitoring duties.

Strong debate whether injunctions, or client monitoring is or is not covered by the law. There are some monitoring obligations, subject to specific content and specific infringements. But the role of freedom of speech has to be preserved, including commercial speech.

Host providing and Neutrality: more than file sharing, the problem now is file hosting. Related to neutrality, e.g. the German High Federal Court forces to distinct between third party content and own content, being liability conditioned to whether the content is a third party’s or not, or if the hosting provider does know whether the content is legal or not.

Host providing and knowledge: obligation to contact the rightholder/injunction claimant in case of doubts. Still not clear, though.

Monitoring duties of the access provider: there is none, the access provider does not need to monitor the uses. Indeed, users have their privacy protected. But law has been evolving and granting some access providers the right (or the obligation…) to block some content (e.g. websites) guaranteeing that a proper balance of constitutional rights (provider, rightholders, users) is regarded.

Injunctions and social networking sites and blogs: the provider is obliged to notify the blogger of a claim, and if the blogger does not react, the provider has to take down the message; if the blogger reacts, it is up to the claimant if she pursues her claim, and to the provider to decide if the message will be taken down. So far, there are no monitoring obligations of the provider for the future.

Perspectives: anonymity and identification. Enforcement needs identity data of the infringer: how can you claim liability if you do not know the identity of the infringer? There is a conflict between disclosure of identity data of users and data protection, between anonymity and liability of intermediaries. On the other hand, should anonymizers be liable for enabling the anonymity and thus makes liability more difficult?

Hadopi Law is (clearly) against many constitutional rights, but the other option, a notice-and-take-down approach may not be a solution for many issues (is definitely not a solution for repeated infringements, as it always acts ex-post).

Conflicts of laws: intellectual property rights and trademarks; unfair competition; personality rights and privacy; how can the level of protection of jurisdictions be compared…

Discussion

Q: what about the case of Google and the right to be forgotten? Spindler: there has always been a conflict between media to inform and the protection of privacy. And this conflict has now extended to social networking sites and Google itself. It seems fair to hold back this extension of “the right to inform” so that it does not steps too much upon the right to privacy.

Miquel Peguera: now, the cost of defending intellectual property rights falls upon the rightholders. But access providers benefit, indirectly, from the exploitation of these rights. Should they contribute to detect infringement (and thus contribute in supporting the burden of the costs)? Spindler: They maybe should, but it is not straightforward.

Chairs: Raquel Xalabarder. Professor, School of Law and Political Science (UOC).

Ramon Casas Vallès. Professor of Intellectual Property at University of Barcelona.
Ten years of intellectual property on the Internet law reforms

The ancient Spanish Law of Intellectual Property (1979) was technologically neutral and thus could be applied in reality despite the many evolutions of technology.

But the new Law of 1987 had to face many issues: new technologies, European law, and the particularities of Spain.

The frontiers between what is public and private and between what is usage and what is delivering have blurred. What is now usage? What is now exploitation? Now, using can mean exploitation of affect those who are trying to benefit from exploitation.

On the other hand, the concept of reproduction has also changed. We now reproduce everytime we browse the Internet. Which does not mean it goes against intellectual property rights. But is there exploitation every time we distribute and/or communicate? Google Books is a good example of distribution without the aim of exploiting, as it is the information about the book what is exploited, despite the fact that the whole content is communicated.

The concept of distribution and public broadcasting are different in Europe and Spain.

There are several issues that relate to Spanish institutions and uses, such as piracy or “piracy”. The issue of piracy was addressed with the right to private copy and the right to compensation to the right holders.

As circumventing the former law became quite easy — both technically, both legally — the new (coming) law what directly does is trimming many user rights. On the other hand, the costs of exploitation or loss of benefits of exploitation of some intellectual property rights do not fall upon the users or potential users, but upon the costs of the whole citizenry, as they are supported by the State budgets.

In the new project of law, vicarious cooperation of induction to illegal use will also be punished, such as creating software to enable P2P file sharing.

Discussion

Francisco Jurado: how can we punish coding a technology that may enable illegal file sharing but also legal file sharing? Casas: there are two logics here. The technological one: if it can be done, so be it. And the legal one: if it can be done, let us think whether we want this to be. And the legal thinking on P2P file sharing should be whether we want that. And we want that depending on the majority use of such technology. If the 99% of uses is illegal, maybe we should ban a certain technology, despite its “it’s-possible-so-let’s-do-it” nature.

Q: intellectual property law is still focused on protection, and it seems that creation has been left aside. Is that it? Casas: intellectual property is not the origin, but the consequence of creation. And property is about the right to decide what the creator can do with her work. Do we need to foster creation because it is in the public benefit that there is more creation, etc, etc, etc? Right, but always respecting the particular decisions of the individual upon her creation.

Q: how long can we keep the regulation of copyright on a national basis, or we have to have an international (common) copyright law? Casas: It is impossible to protect intellectual property rights without international standards. It has always been so (the Bern agreement, the OMPI treatments, etc.) and we will see more of that.

Q: what happens with streaming? what happens with ebooks and used software? how can we compute the damage to right holders? Casas: it is very difficult to compute what is the damage to right holders. In the case of Spain, the calculations have been “how much am I (as the Government) willing to pay?”. Used software: does not apply in Spain. Streaming is public communication.

Chairs: Joan Balcells. Lecturer, School of Law and Political Science (UOC).

Helen Margetts. Director of the Oxford Internet Institute. Professor of Society and the Internet at the OII, University of Oxford.
Chaotic pluralism. Politics after a decade of social media

How has changing use of social media affected politics over the last decade? And what model of democracy, if any, has encapsulated what is going on?

Pluralism has surely been the winner in the bets: more competing elements in democracy, diversity of political institutions and policy-making, the existence a group for every interest, counter-mobilization undermining monopolistic exercise of power, etc.

In the last 10 years, more people have gone online, in the whole world. There has been a rapid growth of Internet penetration almost everywhere. And not only more people is online, but people is spending more and more time online too: especially on social media.

Tiny acts of action or collaboration on the Internet have been possible: micro-donations of money and time. The aggregation of these micro-donations are very important, but are causing a strong debate on whether this is politics, or clicktivism, slacktivism or what. But the think is that many people that would never participate in politics, now do. And this tiny participation can scale up to massive participation and engagement.

But these mobilizations are unstable, unpredictable. There is a new ecology of participation which we still do not know how it works. We know that much or e-petitions fail, but that it is not about the issue (which is not important), but about other aspects. On the other hand, we see many small changes and few large changes. We can see tipping points that, when reached, they position the petition above the threshold of success.

The dynamics of political participation:

• Exposition to social information, about the participation of others. On social media, you know, in real-time, what other people are doing, what are they voting or supporting.
• Visibility vs. anonymity. This duality influences the way you and/or your peers participate.
• Network effects.

Leadership without leaders: social media platforms provide ‘zero-touch’ co-ordination; rather thnn institutions, organizations; political action needs starters and followers to mobilize, but no necessarily leaders.

We are heading to chaotic pluralism: a pluralist pattern of competing interests, more disorganized but also much more active.

But chaotic pluralism offers us the means to understand it: every single act takes place in a digital environment, it leaves a trace, it generates big data, with natural science models, with experiments, etc.

Chaothic pluralism payoffs: social media provide a continuous flow of information between governors and government; social media as a barometer of public services, means of self improvement; government seeing like a citizen, rather than a state.

Chaotic pluralism challenges: natural science and social science having to work together, in multi-disciplinary teams; education and training to understand big data; reputational challenges of this research; new ethical frameworks.

Discussion

Q: to what extent can you trust people that there are no leaders? aren’t there leaders, even if there are informal ones? To what extent is it just rethorics that there are no leaders? Margetts: It is true that there is people that are at the core of mobilizations, or at organizing and promoting something. And it is true that these headless organizations have the risk of some people “taking over”, but there is too much chaos for the concept of “taking over” even applying to this kind of organization. Organizations are qualitatively different.

Jane S. Ley. Former Deputy Director of the United States Office of Government Ethics
Ethics Management in Government: Experience in American Government

The US Office of Government Ethics (OGE) was created after the Watergate scandal to prevent and investigate corruption and other unethical political practices. The office works at the Federal level, but some states and cities have similar bodies that deal with ethics, conflicts of interest and corruption.

The office creates written standards on what the citizen is expecting from a public officer: standards on payments, codes of conduct, etc.

Ethics or conduct is about everything that is not covered by the Law. But it is not about “general ethics” but about widely acknowledged standards and what is a correct (public) behavior and what is not.

For instance, a confidential financial disclosure procedure was created to avoid or to alert about conflicts of interest. This instrument is especially used as a counseling tool, to raise awareness on acts that can enter a conlifct of interest, more than a tool for ex-post enforcement or punishment.

Another project that the office runs is training for each and every new public officer.

There is, though, an enforcement part of the programme. This enforcement part consists in investigating people and practices that are suspicious of unethical behavior, or some information has been made public that raises questions about their behavior.

Discussion

Rogelio Rajala: who provides training? Ley: every agency is in charge of deploying their own training and it’s usually done in house.

Q: what happens when people lose trust in the government? Ley: when the citizen trusts not the government, it is a very difficult situation as anything the government does does not seem legitimate. Only regaining trust is a way forward. We have to raise awareness on people acting evilly and people just acting bad but without a bad intention. This is an important task to do and it helps in recovering trust.

Jordi Tres: does the office intervenes in the selection of the people recruited for the different agencies in charge of public ethics. Ley: OGE trains these officers.

Q: how do we deal with the ‘revolving door’ problem? Ley: the dilemma is that the government wants to recruit the best brains out there, but also to avoid that these best brains (who are working for top companies) use their government position and information to be able to help somebody they are going to work with/for in the future. The latter is the goal of the OGE. But once they’re out of office, there are also laws that prevent conflicts of interest about (not) using confidential information, access to top contacts, etc.

David Morella: how to prevent excessive lobbying power of corporations? Ley: there’s a lobbying law that deals about who talks to whom and about what, that regulates donations to parties and campaigns, etc.

Ismael Peña-López: what happens in the gray area between what is fair and what is illegal, i.e. what is unethical while being legal? Or what happens when the crime has expired (i.e. not guilty, but not innocent either) or when the process of judging a person takes very long? Ley: It depends. For public employeeds, there is a code of conduct and if their behavior is affecting or can affect their duties, they can be fired, or be given other administrative duties out of their actual responsibility. For members of the cabinet, it depends on how embarrassing they are to the president or to the one they are working for. The problem comes with elected members, who can resign but do not necessarily have to. Thus, it will depend on their voters’ outrage, what they did, etc.

Gabriel Capilla: how you deal with conflicts? Ley: our laws are not that much about conflicts of interest but more about incompatibilities. E.g. selling stock of specific companies they might own if they are in an office related with the Treasury.

Carme Olivé: what about local politics? In Spain, most political representation is based on political parties. But a mayor is somewhat similar to a mayor in the US. How can we raise awareness on transparency and ethics a the local level? Ley: the smaller the community, the more likely conflicts of interest will be avoided or found. Notwithstanding, the transparency of the whole process and the public perception of fairness is crucial.

Q: in Spain there is a good amount of people that are involved in trials and charged for different crimes, and the process is taking so long that the presumption of innocence seems not to be enough for the citizen. How can media help in bringing some light to the debate? What happens with the trade off freedom of speech (of media) vs. privacy (of elected representatives being tried)? Do we trust media? Do they help in creating an objective public opinion upon whether an elected representative should resign or be dismissed? Ley: the US do not control the press, and even if there are laws against libel, freedom of speech is very important and rarely is tampered with. And thus trust the public to make up their own decisions.

Óscar Rojas: the US have a law that deals with access to information since 1966, unlike Spain which just approved its own in 2013 and the Catalan Parliament that will very likely approve theirs in 2014. Do you think that the law should be restrictive to accessing information or very tolerant? Ley: the good thing of being a late comer is that you can benefit from what other countries have done in the field. My own principle is that the more information is out there, the better, even if one did not ask for it. And exceptions should be as narrow as possible. If the information is embarrassing to the government, that is not enough to withdraw that information. Only matters of national security, whether someone can be killed because of the disclosure of certain information, etc. would be exceptions to be taken into account.