(Un-)Sustainability of e-Government: Hazards and Questions for Future Research
Alois Paulin, 2014
CEEeGov Days 2014, Budapest,
In this paper we analyse the jural, technical and political sustainability of modern e-government artefacts and define three hazards which endanger the long-term sustainability of modern e-government: the hazard of obsoleteness, the hazard of monopolization, and the hazard of breach of legal certainty, which we shall ground in existing governmental systems from Austria and Slovenia and the EU. We conclude that e-government systemically lacks sustainability and hence is not capable to deliver institutional change; we outline new research challenges and call for the elaboration of a novel research domain that would research towards the theoretical foundations for sustainable future government enabled by means of ICT.
e-government, sustainability, legal certainty, useful illegality, future government
The modern system of public administration and its dependent stakeholders relies on an ever-increasing influx of capital (through e.g. taxes or public resources) to sustain itself, which it does by constantly increasing its legitimacy that bases on an increasing self-imposed handling of new regulations, responsibilities, and taxes cf. [1, p. 616]. Within such bureaucratic ecosystem, informal networks take control, which Banfield  terms machines. These machines are communities, which exist based on a system of exchanges of favors (such as jobs, opportunities to make money by legal or other means, perks, etc.) amongst officials or external interest groups. Such hierarchies, which “arise from extra-legal, if not illegal, arrangements, are ad hoc, and must be continually renewed by ‘deals’ in order to prevent them from collapsing” (ibid.).
Increasingly demanding state machineries are an everlasting issue in any civilization – limits of bearable growth of government requirements (manifested through taxation) however are easily reached and, as Adams  argues, have caused the dusk of many once strong civilizations, including Ancient Egypt, Greece, Rome, the Aztec Empire, and the European Empires.
E-government was a promising attempt to change the way political societies are governed – it can hardly be denied that proper automation significantly improves efficiency in terms of costs, time and quality of the automated process and its result. Also self-service – an integral part of the e-government vision, is another undeniable step in the evolution towards satisfying the expectations of emerging generations, with self-service check-outs in shops, ATMs, e-banking, self-service posting of letters, self-service hotels, (and not to forget the easily overlookable wide range of self-service provided by ubiquitous ICT devices), all being living proofs of the success of this paradigm.
But can e-government at all sustain? In his study on the computability of legal relations Paulin  touched upon the concept of e-government (un-)sustainability, which we shall here further elaborate and discuss. The discussion on e-government (un-)sustainability is essential to understand the entanglement of the bureaucracy and e-government artefacts, which results in a situation where the latter assumes a supportive role to the former, which further strengthens the dependency of the bureaucracy by the state.
The aim of this paper is to raise awareness for the pioneering topic of e-government sustainability research. In section 2 we shall elaborate the three hazards of e-government which render screen-/system-level bureaucracies unsustainable; then, in section 3 we shall deliberate the requirements for sustainable government by means of ICT systems and draw our conclusions.
Hazards of e-Government
Paulin  introduced three hazards that influence the sustainability of e-government as it has been deployed during the last two decades: (I) e-government systems have an implied expiration date, (II) e-government introduces technical monopolization and exclusion, and (III) e-government systems do not adhere to the principle of legal certainty. Due to this hazards, which we shall elaborate further below, e-government cannot act as a sustainable system-of-systems, but can be regarded only as a pioneering attempt before a sustainable solution is found.
Hazard I - the expiration date
At the design-time of an e-government system, only then-valid law can be taken into consideration (needless to say, it is impossible to predict which regulations will be in force in the future) and hence, changes in law will require a change of such system. Here are a few examples:
Bezeljak  describes the development of a novel e-justice system for handling insolvency proceedings according to the then-valid law, the Slovenian Financial Operations, Insolvency Proceedings and Compulsory Dissolution Act (ZFPIPP). The ZFPIPP was enacted in 2007 and underwent approximately ten changes between 2009 and 2013, a few of them caused by decisions of the Slovenian supreme court. All of these changes occurred after Bezeljak’s publication. (We have no information on how severely later changes affected the developed solution.)
As Bezeljak (ibid.) reports, the system provides users pre-prepared PDF templates of documents that represent particular action-steps in legal proceedings together with user interfaces and functionality for entering data, electronically signing the documents and verifying such signatures, as well as functionality for retrieving data from web services offered by other e-government systems. It is likely that certain parts of this highly complex e-government system became meanwhile legally obsolete and that they had to be re-engineered.
Horvat  describes the design of a population registry in Montenegro, which integrated various administrative proceedings as individual workflows according to the then-valid law. During the requirements-analysis phase the team found discrepancies in law, which caused that the latter had to be changed first by the parliament in order for the system to fit its purpose. Needless to say, future lawmakers will face a system too big to be changed that will limit their freedom in drafting new legislation.
Naraks & Golob , Kolar , and Kos & Zorman  report of various e-government systems that required massive re-engineering due to changes in law: Thus, Naraks & Golob  describe the re-engineering of a system for the requirements of Slovenian market inspectorate, which was required due to the “high number of changes in different acts” (ibid., own translation). (Doesn’t this imply that redesign was delayed until the system became unbearable?) The resulting new system is a fully-fledged document management system with more than two hundred predefined templates that either fully or partly automatize different administrative workflows. The system is designed to be extendable so that future workflows can be added at runtime. The authors however note that updates and adaptations in future will be required to keep the system fit for use when law will change.
Kolar , who reports on the design of an e-government system for public procurements, reports of severe challenges with a “continually changing legislation” (ibid., own translation) during the process of development, as well as with an opposing bureaucracy that was not particularly fond to deal with a new system and thus was searching “for excuses of all kind” (ibid., own translation). The system was at the time of reporting in an advanced stage of use which allowed Kolar (ibid.) himself to conclude that the system already needed renovations, updates, and readjustments due to changed law. Two years later Korač , writing on the same topic, found that finding e-government systems for managing public procurements of adequate quality is not easy – meanwhile obviously private providers have flooded the market with their own tools and own flaws.
Kos & Zorman  describe the reengineering of the Central Dog Registry at Slovenia’s veterinary agency, which was first established in 2000. Due to “changes in national and EU legislation” (ibid., own translation) during the first eight years of operation, a new registry had to be engineered. Amongst the key reasons for the development of a new system Kos & Zorman (ibid.) note obsolete technology of both back- and frontend, an inefficient data model, missing connectivity to other vital registries, and unfitness to respond to changes in veterinary practice and regulations. Furthermore, several new workflows were introduced.
Also Levstek  reports of a massive reengineering of the existing solution for managing the treasury of Slovenia. Before the reengineering, a multitude of heterogeneous e-government systems managed public finances, which however failed to provide sustainable functionality. Thus in 2007-2010 a unified system was developed and engineered, whose development (in terms of functional adaptations and updates) shall continue into the future.
A further, far simpler and probably more common vulnerability of e-government systems was reported by Burton , who describes how the US Department of Defense run into a situation when in 2005 the Federal Republic of Yugoslavia changed its name to Serbia and Montenegro. As the system’s development and maintenance has been outsourced to a company whose contract did not enable them to make changes to entries in the database, the name-change in official communication had to be postponed.
The implied expiration date of e-government systems is a crucial factor for their unsustainability and unlike the other factors which we discuss below, this one is by far the most comprehensible as users of such systems can themselves experience changes. The reason for this type of vulnerability lies in the separation between the law, agencies and contractors who finally engineer massive black-box systems with functionality tailored to the wishes of agencies.
Another example of an unsustainable governance system was one we personally were able to observe from 2012 on, in the higher-education domain. The system we observed has been developed by technical staff to cater the needs of administering a university course. The functionality encompassed monitoring the progress of several hundred students, scheduling of exercises, lessons and examinations, assessment of students and providing insight into students’ past achievements, etc. The system has been developed several years ago and at that time was tailored to fit the needs of one single staff member. The functionality of the system was thus fixed to a defined workflow of how to manage students throughout their participation in the course.
Through time new staff joined the team, which brought-in new views and experiences how to deal with students. As their approach differed from the pre-defined workflow, soon demands for modifications of the system’s functionality reached the developers, which were met with objections and resulted in a conflicting situation. The new staff requested access to the code itself and the underlying databases in order to take development into their own hands, which however was rejected by the developers, who thus strengthened their influence in how the course was performed.
Although that system was only subject to individual requirements rather than mandatory regulations, a severe discrepancy between what is required by the teaching staff and what is finally produced could be observed. In e-government scenarios a further juncture implies risk for conflicts and faults, namely the juncture between the legislator and the agency responsible for the execution of the particular law. Thus, inaccurate functional requirements have led to chaos in Slovenia’s electronic cadaster system, where common functionality has been simply forgotten at design-time , .
Hazard II - monopolization and exclusion
In the above-described university course the relation between the formally appointed academic staff and the formally subordinate developers was reversed by the latter, who used their de-facto control over the modalities of the course to keep them in a position where they were indispensable. After all, would they be still required if the academic staff would gain control over the system or transfer that to somebody else?
In the case of the university course the academic staff lacked resources and motivation to meddle with the existing workflow. The lack of motivation was caused by the fact that that arrangement helped in efficiently coping with a huge workload that could not be managed otherwise. This modus operandi corresponds to what the German sociologist Luhmann termed brauchbare Illegalität (useful illegality) [15, p. 44], i.e. a situation in which an organization deliberately does not operate by the book, as it is beneficial to go against formal rules and regulations.
Such kind of useful illegality, as Walter points out, plays a vital role in stabilizing state bureaucracies by e.g. filling gaps in legislation in order to allow agencies to operate in accordance to their core mission. Filling these gaps, which yawn between what the legislator defined and what state agencies need to deliver, is a frequent task when it comes to e-government systems, where legislators merely define the gross functionality, while the fine details of the concrete implementation are delegated to system designers and developers.
Bovens & Zouridis  pointed out at the matter of useful illegality in e-government systems, which they quite appropriately call system-level-bureaucracies. They emphasize that a new class of politically unauthorized people, such as system designers, legal policy staff, and IT experts, gain “discretionary power to convert legal frameworks into concrete algorithms, decision trees, and modules” (ibid.). While this new class of informal bureaucrats can play a beneficiary role similar in effect as beneficial corruption in general, they do contribute their fair share in making e-government unsustainable.
Let us have a look at two e-government systems in which discretionary power of system designers and technical staff played a crucial role in bringing the system into life: the European electronic identity framework, and the Slovenian secure electronic delivery system, which makes up the backbone of electronic delivery in legal proceedings.
Electronic identity (e-ID) technologies have received significant worldwide attention between the fin-de-millenaire and the first few years of the 21
Directive 1999/93/EC was deliberately designed to be technology- and vendor-neutral in order to protect the European single market from national regulative tendencies . Further, a temporary electronic equivalence to the legal concept of the handwritten signature, the qualified electronic signature (technology neutral as well), was defined in order to serve as a translator for already existing, not e-conscious legislation (ibid.).
Strong emphasis on this very same neutrality however has resulted in excessive absentness of clear definitions on which technology (envelopes, keys, cryptographic algorithms, etc.) to use for creating and verifying electronic signatures. Progressive governments, aiming to provide e-ID enabled e-government to their citizens, fostered the emergence of privileged national technical solutions . Such government-sponsored de-facto monopolists however, although reasonably satisfying ad-hoc national needs (useful illegality!), introduced barriers for cross-border interoperability (a significant breach of foundational ideas behind the EU) and any further technology providers who would be potentially interested in introducing their own technologies to the market (ibid.).
Slovenian secure electronic delivery framework
We do not know how many technology-providers buried their aims to enrich the market with their own e-ID solutions for dealing with national e-government systems, but there is evidence at least of one technology provider who had no success with the Slovenian electronic delivery framework .
The background of the Slovenian case is similar to the faith of the European e-ID. Legal provisions for submitting applications electronically were first enacted for administrative proceedings in 2006 and later for civil legal proceedings in 2007. Both almost identically regulate that applications in electronic form are sent electronically to the information system of the addressee, which automatically confirms the receipt of the message. However, detailed definition of such information system has been omitted. To make matters worse, both laws contain provisions that allow subjects to actually demand delivery in electronic form, whereby specialized electronic delivery providers should deliver messages into the addressees’ secure electronic mail box, which however is neither defined in detail by law nor by bylaws .
In both the Slovenian electronic delivery framework, as well as the European e-ID, informal clans are the drivers behind local legislative activities, which enable privileged technical solutions to assume monopolistic roles in domestic markets, through which those clans secure the development and maintenance of their own technical solutions to the disadvantage of outsiders .
Hazard III: legal certainty
Legal theory distinguishes between public law and private law, whereby public law regulates the relations between the state and its citizens – ergo relations between the sovereign and its subjects, while private law regulates relations amid the subjects based on their will , [23, p. 23]. A major difference between public and private law is that private law restricts the freedom of the subjects, while public law empowers the sovereign.
In societies that adhere to the rule of law, the sovereign (ergo the state through its bodies) operates in accordance to the principle of legality, which means that every action and every decision made by the state must be explicitly defined by law. This applies both to stated decisions, as well as the procedures that lead to them [24, pp. 28–29]. This fundamental legal principle allows subjects not only to exercise control over the sovereign, but guarantees also legal certainty, which makes the sovereign’s actions transparent and foreseeable. Legal certainty prevents the state’s bodies (e.g. government, police, judges, etc.) to act or decide arbitrarily, which is crucial, as state arbitrariness would break crucial legal principles, such as the equality before law [25, p. 31].
E-government challenges the principle of legality, as it delegates government behavior to machines. Bovens & Zouridis  argued that from the perspective of equality before law, e-government (there: system-level-bureaucracy) “may be regarded as the zenith of legal rational authority [as] thanks to ICT, implementation of the law has been almost wholly disciplined” (ibid., p.181), if it was not for the issue regarding the delegation of discretionary power, which we summarized above (ibid., p.181).
But can e-government really perfectly implement law? From a technical perspective, functionality offered through e-government contains often procedures which subjects can trigger (and communicate with) remotely, whereby such procedures are executed on the server of the particular state agency. The communication between the subject and the sovereign (represented by the agency) is thus channeled through technical communication between the technical equipment of the subject and the serving terminal of the sovereign. Unlike human-to-human communication, which is based on the interpretation of analogue messages, the digital communication is discrete, exact and unambiguous. Human communication for example does not rely on strict grammar or correct pronunciation of words – two foreigners will be able to perfectly communicate in English despite their ignorance of its grammatical rules. Also general human perception is based on the interpretation of analogue, ambiguous information – we can visually recognize e.g. a car even though we have never seen it in the exactly same environment, angle, shape, etc. However, it is impossible for two computers to communicate without adhering to strict protocols that regulate the exact semantics of the transmitted signals and information. We can say that human interaction is analogue and computer interaction is digital – the former is ambiguous and therefore must be interpreted while the latter is unambiguous by nature.
Also e-government should adhere to this digital nature of machine interaction, which brings us back to the problem of legal certainty: In the real/analogue world the interactions are subject to interpretation, and thus legal certainty can be achieved by defining spaces of discretion within which interaction takes place. Thus, an administrative proceeding is initiated by submitting a written and signed application to the responsible government agency, whereby there are no legal provisions defining the material on which the application must be written on, the font that must be used, or the exact wording. Because the interaction takes place in the analogue dimension, it can be reasonably expected from the addressee to be able to understand the request. If the application however is an electronic document sent to an endpoint of an IT system, then in such case the structure and semantics of the transmitted message need to be rigorously defined.
If a user (the client) interacts with an e-government service, then this interaction is an exchange of electronic messages, which accords to a particular schema that the serving endpoint (the server) understands. An example interaction with a Web-based e-government system would be as follows: the user first sends a HTTP (the de-facto standard for communication with Web servers cf. ) request to the Web server of the e-government system; the system then responds with e.g. an HTML Web page, which the user’s terminal equipment may (or may not!) visualize and present as a user interface for further interaction. Over a series of such requests, the user consumes the e-government service, whereby the server has neither influence on how the client treats the response, nor does it know whether the response was received at all.
This exchange of messages – the user’s requests and the server’s responses, in the e-government interaction is an essential part of an administrative proceeding initiated by the citizen with the goal to influence her legal statuses or rights, or to just receive information. With focus laid on this perspective, it becomes evident that legal principles must be applied also to this dimension in order to assure legitimated, non-discriminative access to e-government systems.
The interaction between citizens and governments over the Internet is a novel experience for both the legislative, executive, and judicative branch, which all severely lack technical knowledge required to cope with the challenge of structured data exchange. As an increasing part of the population is acquiring skills required to create IT artefacts and to interact with digital structures on a low level, new issues will have to be resolved, such as: Is the government allowed to prevent citizens from interacting with governmental services in an automated manner – e.g. through bots ? Or: is it legal to make web sites render properly only in a limited set of web clients and system configurations?
Alas, whoever would be courageous to start documenting and properly legitimizing each and every technical endpoint, each communicational protocol, each piece of code used in existing e-government applications, would be about to fall down the rabbit hole, ending up punished by the gods as Sisyphus, facing a nightmare of endless recursion so to speak.
Conclusion & outlook - sustainability beyond e-Gov
In this paper we set out to explore the flaws of e-government (section 2) and argued that e-government is a concept that is a-priori unsustainable for three reasons: (I) e-government systems are bespoke systems tailored to fit a particular (jural) context, and hence they expire as soon as this context changes unfavourably, (II) e-government systems due to a strong gap between legislation and technology rely crucially on useful illegality and benevolent corruption, which gives rise to new discrimination and exclusion, and (III) e-government is breaching the principle of legality by shifting governmental discretionary power out of the politically controllable sphere to system designers and –developers.
This systemic unsustainability of e-government artefacts renders conceptually unfeasible the vision of e-government as an enabler of a reinvented, new and better government serving a new generation of omnirational, tech-savvy citizens . Rather than improving government performance by reducing administrative costs and creating added value through new approaches to government, e-government bases on conceptually unsustainable black-box IT systems with constrained functionality, which introduce new forms of administrative corruption and bureaucratic arbitrariness into government.
In order to utilize the digital dimension’s ability to reinvent government for generations to come, future research should focus on the foundational principles of juropolitical systems, and take a blank-slate approach to design, validate and deploy novel holistic systems for describing, storing, communicating and enacting digitally structureable concepts based on which juropolitical governance would take place. A pioneering model towards a holistic and sustainable approach to structuring jural relations was proposed by Paulin , alas, further exploration and research is required to advance that vision.
Therefore, we call for the emergence of a novel interdisciplinary research domain that would focus on fundamental questions on how societies can be sustainably governed through information & communication technologies. Only once a common understanding has been reached on how jural relations can be sustainably (!) structured and communicated, humanity will be able to reach beyond the fragmented approach that was applied in e-government and strive towards bringing government to a level that was never ever possible in human history so far.
Several research questions then would form the new frontier towards forging the theoretical foundations for future government. Thus, a priority would be to define how jural relations and jural statuses  can be sustainably defined in the digital structure; next, a proper approach towards sustainably representing identity in the digital realm must be found that would surpass the implied vulnerabilities of the modern approach . Further, a system for describing and enacting jural rules / regulations must be forged that would provide law-making entities a mechanism for seamless enactment of law without the need for manual translations between the proposed law and the enacted systems for its governance. Finally, appropriate communication protocols must be engineered, that would provide non-repudiable interaction with such holistic information system that would govern individual jural relations based on law.