Journal of Information, Law and Technology s1

Journal of Information, Law and Technology

Basic Aspects of the Regulation of E-Government

Professor Fernando Galindo Faculty of Law, University of Zaragoza [email protected]

This is a revised conference paper published on: 30 January 2006. Citation: Galindo, ' Basic Aspects of the Regulation of E-Government’, 2005 (2) The Journal of Information, Law and Technology (JILT). < http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_2/galindo/> Abstract

The Paper puts forward some proposals on the basic lines that democratic regulation of the phenomenon called electronic government should have, considering: 1) some expressions and regulations of the same produced both in the United States and in Europe, and, 2), the basic legal principles for the functioning of the State of Law.

Keywords: E-government, e-Commerce, regulation, information and telecommunication technologies (ITT).

1. Introduction

We can no longer talk about the beginning of electronic Government; as it will be seen, it is already a fact. It exists and works, to a lesser or to a greater degree 1, in practically all countries. As will be seen further on, this is the same as to acknowledge that the Organisms of the Public Administration can have relationships between each other in their usual work using the Information and Telecommunication Technologies (ITT) as an auxiliary instrument, and even the communication between the citizens or companies with the public organisms; this by the former requiring compliance with their rights, as well as the citizens and companies meeting their obligations with the latter, that are produced, or can be produced, with the ITT.

As occurs in the case of electronic Commerce, we could believe that in a greater or lesser extension, the implementation of the electronic Government depends on the degree of use of the ITT by the population in the specific countries to be considered. But this is not so, because in the case of the electronic Government the extension does not depend on the degree of use of the ITT by the citizens, as commented below.

The unavoidability of the electronic Government depends on the fact that even though the expansion in the use of the technologies is relevant for the so-called electronic Government, or what is the same, for the carrying out of commercial transactions with the aid of the ITT, as regards that the degree of implementation of electronic Commerce in a specific country has the limitations of the economic development features of that specific country: the number and type of companies implemented in the same, the technological development of the same, and the number of people that knows how to, and can, access by means of the ITT the products offered by these companies. On the other hand, the electronic Government, in the wide characterisation mentioned before, is real in any country, whatever the degree of economic development reached. This is so because nowadays the carrying out of any management, administrative or commercial task without the aid of the ITT at one point does not seem possible. This is so both in government and private organisations, as we all know.

In any event, what we are going to deal with here is the situation in the countries where the electronic government as phenomenon exists, in spite of the fact that the access to the ITT by the citizens is different between them.

The countries to be considered, specifically, are various of the European Union and the United States that have even developed pages served as introduction to their electronic government applications carried out by the Public Administrations2, thus making it unnecessary for the users to have to look for the administrative service needed in Internet without an appropriate reference frame.

In the context described by these experiences, the present Paper attempts to ponder upon what type of regulation of the electronic Government would be in compliance with the basic legal regulation principles, referred to the fact that the action frame of the State of Law is characterised, as it is well-known, by the guarantee of the participation of all in the government, the application of the separation of powers principle, and a respect for human rights.

To deal with the issue the following will be tackled: firstly, some basic definitions that will enable us to know what we are talking about when we use expressions that are colloquially used nowadays, such as electronic Commerce, electronic Government, and electronic Democracy, the latter expression being very frequently used and related with the first two. Secondly, the specific contents and characteristics of the various examples of electronic Government existing in Europe and in the United States. Thirdly, the basic content of the regulations that deal with the electronic Government in Europe and in the United States. Fourthly, which regulations seem to better fit the Government principles characteristic of the State of Law, basically characterised by the safeguarding of the right to participate in the selection of political representatives, the separation of powers (legislative, executive and legal) and respect for human rights. And then the conclusion.

2. Definitions

It is advisable to differentiate between the three expressions constantly used when talking about the ITT, which have certain social relevance. The most characteristic expressions are: electronic Commerce, electronic Government and electronic Democracy. Given the fre- quent confusion on the same which occurs in practice, their definition is advisable in order to be able to know what we are referring to when talking about electronic Government.

The electronic Commerce is the carrying out of commercial transactions using the ITT as an auxiliary instrument. It is not, therefore, the simple carrying out of commercial transactions using Internet, as the truth is that transactions can be carried out using EDI, Electronic Data Interchange, and a communications protocol different from Internet, which has been used for many years by companies. It is also possible to carry out such transactions using the fax or mobile telephones...

This is why we here take as generic reference for the reference of electronic Commerce, the carrying out of commercial transactions. This expression that seems to be fully defined it is not so: we have to take into account that in manuals, treatise and papers on the matter there are differences between the electronic Commerce between companies, between companies and users, between companies and Public Administrations, between users (peer to peer) or even between mobile telephones (m-commerce3). The traditional differences, acknow- ledged by the Law, that differentiated the mercantile relationships by the fact that, in the same, the commerce professionals taking part seem not to be taken into account in the definition of the various phenomena integrating the electronic Commerce since, as we have seen, those talking about them tend to focus on the subjects of the transactions, or even on the tool used, when talking about the Commerce carried out by means of the mobile telephone. It would seem that the economic transactions are the characteristics of the activities called electronic Commerce, if we wish to include this in all the types of electronic Com- merce mentioned before.

The electronic Government would be the carrying out of communications between the Pub- lic Administrations between themselves, or between users and companies and the Public Administrations with the aid of the ITT. As occurs in the case of the Commerce, it is better to generically use ITT rather than Internet: communications are carried out in the public sector using a multitude of possibilities that nowadays the ITT offer. Let us consider, for example, the communications between the police services existing in a specific country: for many years said services have been using communication instruments between themselves when Internet did not exist. Additionally, as occurred in the case of the electronic Com- merce, the ITT are not that important here, but the relations or transactions of the ‘electronic government’ itself, or what is the same: the Government.

In fact, the expression electronic Government indicates that we are not talking about economic transactions, but of communications or transactions of a public character, whose interest is not the exchange of goods, but the satisfaction of needs by the Administration with the citizens at their usual workplace, or the requirement of these to the Administrations of the Rights that the legislations recognise. The meeting of the obligations of the citizens with the rest of them by paying taxes, for example, should also be considered to be included within the expression of electronic Government. The generic expression expressed here is logical due to the fact that the Governments, or Public Administrations, carry out more processes following business character behaviour lines cannot make us forget that the objective of the governmental ‘actions’ is made up by the achievement of the public or common well being.

Some think that the so-called electronic Democracy has some relationship with the electronic Government. This is, in fact, the carrying out of elections with the aid of the ITT. We can also include the carrying out of queries or referendums in the expression for those cases or countries where the legislation contemplates that the opinion of the citizens is to be expressed with regards to the enactment of new legislations, or the change of the previous ones by means of direct intervention of the same.

These appreciations imply that said relationship between electronic Government and electronic Democracy does not seem correct: we need to differentiate both expressions as we know that the election of political representatives, or the approval of a referendum of a rule do not have a governmental or administrative character: they have a specific political character, consisting the exercising of the Right to chose, and be chosen, as political representatives that the citizens of democratic countries, or the starting of the ability of directly participating in the creation of the rules, in the case of the referendum.

The confusion can be due to the fact that the communication that is produced between the citizens and the Public Administrations, is an activity which could be considered as electronic Government, as it has a governmental character, can have as its object, for example, the expression of the citizens’ opinion of the creation of a rule, put forward by the governmental institutions: the executive power of an Autonomous Region, or even of a Town Hall. In the legal field it is known that this possibility is of the Administration of the State of Law, and of the principle of participation of the citizens in the decisions, which is a basic principle of the same. In many of the opinions expressed on this phenomena, coming from the technical field, it is erroneously believed that this participation of an administrative character can be considered as an activity of a ‘democratic’ character, transferring to an in- appropriate field statements on democracy as a general will, permanently updated by authors such as Rousseau. But this is not, as we have said, the scheme of the functioning of the current democracies.

Due to the foregoing, our opinion is to maintain the distinction between electronic ‘Govern- ment’ and ‘Democracy’ in order to know that when we talk about electronic Democracy, the exclusive reference is to the political election of a periodical character in order to ap- point the citizens’ representatives (in a Town Hall, in a regional Government, in the national or European Parliament) or to the creation of rules by means of a referendum, carried out with the aid of the ITT.

In any event, below we will concentrate on the study of electronic Government and its regulation.

3. Electronic Government Expressions

The Governments are using, as much as they are able, the ITT as an auxiliary instrument in order to carry out their obligations with the citizens. The unavoidability of the cultural change to the society of information or the society of knowledge is admitted, and for the same reason the dynamic role of the same that the Governments and Public Administrations have to comply with, without waiting for the number of the ITT users of the respective countries to be larger or smaller. These have been decisions adopted as an action policy of various Governments of the European Union4, being implemented by the state, national, regional or local Public Administrations in compliance with their various possibilities and re- sponsibilities.

The objective of the present Paper is not to express the ‘state of the art’ regarding the degree of implementation of the electronic Government in a specific country: this would need studies and work of the kind that are called ‘Observation points of the information society’. Here we are going to limit the expression of the contents of some of the significant cases of electronic Government that can be found in various countries of the European Union and in the United States. This is coherent with the circumstances, as already mentioned, that the objective of the brief presentation that will be mentioned below is restricted to the inclusion of significant data on what an electronic Government is considered, in order to consider, in a following section, the essential objective of this Paper: to refer to the regulation ordering the expressions or contents of the electronic Government.

Based on the above, web pages will be analysed, implemented and updated by the Govern- ments of various countries, that pretend to be, apparently, something similar to a single counter by means which the citizens, using their computers, or sometimes their mobile telephones, can contact the Public Administrations or claim from them the compliance with their Rights or to comply with their obligations. In this way, surfing the Internet is made available to the citizens, which, as it is known, has difficulties for those who are not used to the same5.

Below we will consider the contents of the first ‘web’ pages of the Governments or Public Administrations of Germany, Austria, Spain, France, Italy, United Kingdom and United States, which have as their objective the introduction to the citizens of the services rendered by their respective Public Administrations. We will differentiate between the cases of those who take into account various user profiles, as it is the case of Spain, France and the United States, and the cases of those who make offers of electronic services addressed to all the population: this is the case of the United Kingdom, Germany, Italy and Austria.

Profiles

The most common generic approximation is that referred to show various ways of accessing the Administration depending on the various user types or profiles.

The Spanish page, titled ‘Administración.es: el portal del ciudadano’ (Administration.es: The citizens site’), declares to be ‘the virtual meeting place between the citizen and the Ad- ministration’. The link is the following: http://www.administracion.es/. The Ministry for the Public Administrations is the institution responsible for the same. Its contents, organisation and selection of links of the pages have been selected and/or coordinated by the Gener- al Sub-management for Administrative Simplification and Programmes of Attention to the Citizen, and by the General Sub management for Technological Programmes of the State Secretariat or Public Administration6.

The page is prepared for three types of users to access its contents: Citizens, Companies: that is, business people (especially new business people) and public organisations: that is, civil servants integrated in organisms and entities of the Public Administrations. Depending on the profile selected the information offered and the links to the various services is different.

As it is common is this type of page, the ‘web site’ is an instrument for accessing the pages created by the national, autonomic or local Administration, where the services rendered with the aid of the ITT to each of the mentioned user ‘profiles’ are included. Generically summarised: these profiles refer to services rendered by the Public Administrations to the citizens and companies (Citizen and Company profiles) and the Public Administrations to other Administrations (Public Administrations profile).

The specific content of the profile referred to the citizens refers to the queries made by workers, students and families, and includes general information, grants, usual processes, public employment, life episodes, for example. The content referred to companies mentions procedures such as the creation of companies, single counter for companies, tenders and other information. The content referred to Public Administrations refers to organisation, training, projects...

We should mention that the page can be accessed, apart from in Spanish, in Catalan, Basque and Valencian language. There is, additionally, an international website that can be accessed in English, French and German. This site is an access page to certain Spanish webs of interest for those using any of the mentioned languages7.

France

The French page is called Public Service: the French Administration Site. The page is: http://www.service-public.fr/. The Ministry of Public Functions and Reforms in the Estate is responsible for the same, coordinated and updated by the Government General Secretari- at by means of the Agency for the Development of the Electronic Administration and the Government Information Service.

It offers three ‘profiles’: private, professionals and citizens. The first profile provides forms, processes and useful addresses to exercise the rights relative to: employment, teaching, training, Europe, family, Justice, Health... the profile referred to professionals accesses information of a business character on the creation of companies, fiscal matters, international issues, aid, human resources... the profile called citizens refers to the exercise of the politic and institutional life.

The profile destined to private has menus in Spanish, German and English. The other two are only in French.

United States

The United States page offers services to Citizens, Companies and Non-profit organisations, federal civil servants and relationships between the various Administrations. The title of the page is ‘FirstGo.gov. The U.S. Government’s Official Web Portal’. This is in: http://www.firstgov.gov/. The General Services Administration of the United States is responsible for this page, updating it and managing it through the Citizens Services and Com- munications Office and the Citizen Information Federal Centre.

The services provided to Citizens are referred to: subsidies and grants, consumer protection, visas, National Defence (provision of military services), education, employment, health, taxes, science and technology, electoral procedures...

The services for Companies and non-profit organisations refer to: contracting with the Pub- lic Administrations, tax payment, salaries paid to employees and workers, administrative li- censes, social security files, mercantile registers...

The services for Federal civil servants refer to: purchase of products and services, calculation of retirement pensions, calculation of expenses, health plans, training courses life in- surance, employment offers in Public Administrations, personal information, savings plans...

The services relative to the relationships between Public Administrations have two different parts: on the one hand is the offer of generic services and on the other the offer for specific groups.

Specifically, the generic services refer to: geographical information, disaster management, police network, firemen, public health and recovery of disasters, civil register (births and deaths of citizens), offering of on-line grants by the Public Administrations, electronic identification for on-line transactions, state subsidies, recreational activities...

The offers for specific groups refer to: inter-governmental cooperation, offers for employees of the state and local Public Administrations, possibilities for tribal governments and offers to federal employees.

There is also a web site in Spanish: the one called ‘FirstGov en Español. Información y Ser- vicios del Gobierno de los Estados Unidos’. The page is: http://www.firstgov.gov/Espanol . The information included is different from that of the website in English. The four main categories to access information are: general resources, recently arrived, business and for- eign visitors. There are other pages in other languages.

Pages Addressed to All the Population

The following pages do not have profiles as the previous pages: United Kingdom, Ger- many, Austria and Italia. In spite of this, the content is very similar to the one of the above, as it will be shown.

United Kingdom

The United Kingdom page is http://www.direct.gov.uk/. It is under the responsibility of the ‘Cabinet Office’ Electronic Government Unit, a Ministry dedicated to support the functioning of the Government and the changes in the Administration, amongst other functions.

The name of the page is different from those above. This is: “Directgov. The place to turn to for the latest and widest range of public service information”.

The way to access the information is not with profiles, this and its contents are addressed to the entire population.

The initial page is divided in the following sections: Info for…, Info about.., Quickfind and Newsroom.

The contents are very similar to those included in the pages mentioned before, anyway the style is different.

Briefly: the page on Info for…is: “Information for...Information, advice and support for different groups of people”. Info about… is: “Information about... Find the information you need, listed by topic”. Quickfind gives access to… “Tools to find what you need to know on this website and over 2000 other public sector sites”. Newsroom gives “News, statements, publications and announcements from across the UK government”

Germany

In Germany, the page http://www.modernerstaat.de/ ‘Modern State, Modern Administra- tion’ is not for profile users: it is common to all type of users. Responsibility of the Home Secretary.

It specially supplies information on the start-up of the German Government of the ‘Modern Administration’. It cannot be considered, as in the rest of examples, as a kind of single counter where other Public Administration pages can be accessed, depending on various matters or contents. The only thing that can be accessed is some generic pages on “Mod- ern Administration Management”, “Reform of the Bureaucracy”, “E-Government”, “Inter- national activities”, “Departments”, “Presse” and “Services”. The information included in the page presents the political will of the German Government in order to implement and develop the modernisation of the Administration.

Austria

The Austrian page accessing the Public Administrations is http://www.help.gv.at/. It is responsibility of the Federal Chancellery.

It is called: ‘your official aid’. Includes access to the Public Administrations bearing in mind various concepts included in its offers. The concepts are varied: life situation (births, marriage, deaths, lost and found objects...), legal denominations (laws, authorities, taxes, elections...), institutions (Universities, learning...). All the concepts are considered by the page designers as life situations.

We should mention that there are pages drafted in Czech, Slovakian, Hungarian, Slovenian and Italian.

The Italian site is called: ‘The citizen’s site’. The web page is: http://www.italia.gov.it/. It is under the responsibility of the Italian Ministry of Innovation and Technology.

The main options of the site are: ‘Life events’ and ‘The A to Z of the Administration’.

The last option is a list of the main institutions of the Italian Public Administrations alpha- betically listed.

The ‘Life Events’ option provides access to the following: having a baby, study, work, use transport means, military service, have a house, have a family, pay taxes, travel abroad, live healthily, practise sports, live life, claims, live free time and culture, help others, have a pension.

The ‘Your Guide’ option provides information on: food, life, art and culture, military ca- reer, house, know the law, be a citizen, Justice, physical disability, Italian institutions, education, employment, civil service, social policies, prevision, health and welfare, citizens safety, sports and free time, taxes, State titles, transports.

Summary

As it can be seen, these are very ambitious pages: they pretend to be the introductory pages to all the Public Administrations accessible via Internet. In fact, the information included in each one of them in the shape of links to other pages is abundant in all the cases: all these are countries where the so-called electronic Government has an outstanding development.

As the names of its administrative responsible entities indicate, they are text pages: they an- ticipate an administrative change which is in its initial stage; such is the society of knowledge or information.

The information that the indicated pages offer you is not updated, and even it does not exist: in this transitional stage where the paper and digital support are together, the mainten- ance costs claimed by the digital society are not yet covered by the pages responsible. Gen- erally, the institutional transformation that the service provision via digital means is not covered by the institutions that have developed the corresponding pages. What we refer to is that, as shall be seen later, there is the corresponding regulation: the Public Administra- tions in the State of Law are forced to satisfy the principle of legality, but have not produced the structural and management change that the same are requested by the functioning based on digital means, or, what is the same, the change requested by the fact that the citizens do not address them from the Administration offices but from their own computers, or sometimes from their mobile telephones.

In our opinion, at this moment of time what is more important is to have verified with the mentioned examples is that the electronic Government exists, with which we cannot tackle its regulation.

4. Regulations

We have seen in the previous section that the use of the ITT by the Public Administrations in their usual tasks is real. Also that the citizens can carry out processes, send requests and meet their Public Administration obligations by using the ITT.

We should ask ourselves: are there regulations? In order to reply to this question we see that effectively there are various regulations, which will be seen in this section. In order to present these regulations we are going to deal with two examples: the Spanish case and that of the United States. This selection has been carried out as both cases are exemplary: the first one of the European regulation, the second one as it started a regulation expressly referred to the electronic Government. Spanish Regulation

The Spanish regulation, as is the European, is not specifically addressed to regulate the electronic Government, That existing is addressed to regulate the various procedures allow- ing the Public Administration and the citizens to carry out communications in defence or satisfaction of its Rights regarding various matters. Thus, for example, the tax declarations that can be carried out with the aid of the ITT are regulated by a regulation establishing the way of carrying out said activity, whether personal tax or taxes to be paid by companies, for example.

In the event of checking the personal files by means of Internet in order to know the history of payments to the Social Security of an employee carried out by the companies where the employee has worked, in order to carry out the calculations of the pensions to be received after having worked an entire lifetime, it is also the legislation on pensions that specifies the procedure.

If we think of the possibility that the Notary Public and Property Registrars exchange information regarding the purchase of a property carried out by two individuals in order to provide safety to the business and reflect, in a certain Register, the existence of the same, the regulation referred to allows the action of some professionals with the aid of the ITT is included in the regulation referred to in the general activity of the Notary Publics and Re- gistrars.

When we think about the possibility that the ITT are used as auxiliary instruments in the Courts the procedural law deals with it at the same time as establishing the rules for the carrying out of the processes to meet the essential rights. In Spain, the General Council of the Judicial Power is very important regarding this matter.

The possibility of using web pages in order to provide publicity to resolutions of any type or start processes is also included in the corresponding administrative regulation. In the Spanish case, the reference is the Royal Decree 208/1996, of the 9th of February, by which administrative information and citizen attention services are regulated.

Apart from these specific provisions there are others specifically addressed to regulate the use of the ITT regarding the recognised Rights, such as the so-called right to the protection of personal data, or those addressed to recognise the Right to use ciphering in communications: specifically the electronic signature. Other regulations govern the intellectual and industrial property of computer products to be used as auxiliary instruments by the Public Administrations with the citizens, or of these with the Administrations.

What does not exist is a regulation on electronic Government. The statements we saw in the previous section about the ‘single counters’ are either regulated buy administrative rules or there are agreements or projects in development in a more or less experimental way by the respective Governments, being regulated by the simple habit developed with its creation.

On the other hand, something different occurs in the United States, where they have their own Electronic Government regulation. USA Regulation

There is, in the United States, as in Europe, a set of regulations establishing the possibility of using the ITT by the Federal Administration, state or local, regarding the specific matter informed by the web pages. There is not, as it is known, generic regulation on the protection of personal data, but it does exist for specific sectors of life: data on teaching, for example. There is a specific regulation on electronic signatures of a state character.

The most interesting particularity of the USA electronic Government is that, differently from what has happened in the electronic Commerce, ruled by conduct codes and standards drafted by the companies, there is, in this country, a regulation precisely addressed to the regulation of the electronic government, that, as we will see, establishes a full organisation addressed to the promotion of the implementation and development of the applications that allow communication between citizens and the Public Administration with the aid of the ITT.

In fact, in the United States, the President enacted on the 17th of December 2002, the 2002 E-Government Act, approved by the Legislative power. In this regulation, the electronic government is defined in the following way: ‘(3) ‘electronic Government’ means the use by the Government of web-based Internet applications and other information technologies, combined with processes that implement these technologies, to —(A) enhance the access to and delivery of Government information and services to the public, other agencies, and other Government entities; or (B) bring about improvements in Government operations that may include effectiveness, efficiency, service quality, or transformation;’ 8

A well-intentioned rule: destined to provide information to the public, as indicated by paragraph 3 (A), in compliance with the objectives of the Government itself as the representa- tion and participation of the citizens. From the moment of the enactment emphasis was made on the use of the electronic Government expressed in paragraph 3 (B), that is, in expressions appropriate to an economic discourse: effectiveness, efficiency, service quality, or transformation. The President’s speech made the day when the regulation was enacted verified this, when he said: ‘Today I have signed into law H.R. 2458, the ‘E-Government Act of 2002.’ This legislation builds upon my Administration's expanding E-Government initiative by ensuring strong leadership of the information technology activities of Federal agencies, a comprehensive framework for information security standards and programs, and uniform safeguards to protect the confidentiality of information provided by the public for statistical purposes. The Act will also assist in expanding the use of the Internet and computer resources in order to deliver Government services, consistent with the reform principles I outlined on July 10, 2002, for a citizen-centered, results-oriented, and market- based Government” (underlining and cursive highlighted by the author)

The President’s will, consists, therefore, of the following:

 Ensuring strong leadership of the information technology activities of Federal agencies  A comprehensive framework for information security standards and programs, and  Uniform safeguards to protect the confidentiality of information provided by the public for statistical purposes

In order to put into effect the President’s political will, the rule establishes these three organisations:

 Management and Promotion of Electronic Government Services  The Office of E-Gov  Chief Information Council

The Management and Promotion of Electronic Government Services, executive organism of an economic character, will be carried forward by the Administrator of the new office of the Electronic Government: the Office of Management and Budget (OMB) that will have, as objective: ‘to provide overall leadership and direction to the executive branch on Elec- tronic Government (E-Gov) initiatives’. The Administrator will report to the OMB Director on: ‘resources needed for Federal Information Systems and recommend changes in E-Gov strategies and priorities’

The E- Gov office, executive organism of an administrative and technical character, will have the following functions:

 Promote innovative uses of information technology by agencies, particularly initiatives involving multi-agency collaboration, through support of pilot projects, research, experimentation and use of innovative technologies  Oversee the development of an integrated Internet-based information system by agencies and assist in overseeing that agency E-Gov activities have adequate security  Establish policies to support Information Technology (IT) standards, including standards for interconnectivity and interoperability, for categorizing Federal electronic information, and for computer system efficiency and security

The functions of the E-Gov office should be highlighted, as the public institution will be in charge of solving the Internet weaknesses regarding communication safety. The proposal is new regarding to what happened with the electronic Commerce: the safety is solved with the establishment of public key of a private nature infrastructures. In the scope of the electronic Government, the function is given to a public institution, which seems correct.

The tasks given to the E-Gov Office regarding the standards should also be highlighted. Up to now, the standards are drafted from proposals from the technological development made by the ITT industry. The participation of the public powers that the rule can counter weigh the industry interests.

The last organisms created has a consultative and policy drafting character. This is the Chief Information Council (CIO). It is integrated by representatives of the offices previ- ously mentioned and of other United States administrative organisations of a federal, state and local character. Its competences are the following:  Develop recommendations on Government information resources management policies and requirements  Share experiences, ideas, best practices and innovative approaches related to information resources management  Assist in identification, development, and coordination of multi-agency projects to improve Government performance through use of IT

The regulation and institutional scheme is already under development and its achievements and advances are included in the web page ‘ E-GOV. Powering America’s future with technology’. The page is managed by the OMB. The page is: http://www.whitehouse.gov/omb/egov/

The page has four main sections: Federal Enterprise Architecture, Information Policy, Pres- idential Initiatives and CIO Council. In each one of the sections the projects developed on Electronic Government and its respective advances are highlighted.

European or American model? Let’s revise its proposals taking into account their greater or lesser agreement with the principles of the democracies in the following section.

5. Democratic Regulation

The essential principles of the State of Law from its origins at the end of the eighteenth century are the following: the democratic participation of its representatives in the Parlia- ment and the practice of the principle of power separation: legislative, executive and judicial. Only the Parliament has the capacity to create laws. Parliaments and Governments have to respect, in the enactment of laws and in the application in governmental regulations, the declaration of rights included in the Constitution and the procedures established in the same. Amongst the essential principles of the system the respect of the private property is one of the essential ones, as it is the safeguarding of the market. But there are many others: the principle of legality in the action of the Public Administrations.

In this respect, the policy adopted by the United States regarding a phenomenon of the im- portance of the Electronic Government, cantered on the approval of a rule by the legislative power dealing with the matter is coherent with the principles of the State of Law. This principle, as mentioned before, is also followed in Europe with specific applications, but a regulation on electronic Government is missed, establishing each country’s general rules: a specific plan and organisation, adequate to develop the matter. If this is not done, applications destined to the public following business or technical criteria, (adapted to industrial standards), can be carried out, practically in exclusive, with which there is a risk that the public funds are not invested so much in the electronic Government as in the electronic Commerce, applications with different objectives, as it is known: the public welfare, the former, and the economic transactions, the latter.

Some criticism on the United States approximation. The matter is: is it not, in the policy of the United States on electronic Government, the political discourse getting closer to economic discourse, transforming it into one, as more emphasis on the economy and the tech- nique more than on the particularity and participation of all the citizens? The changes in the discourse of the President regarding the objectives of the rule on electronic Government mentioned in the previous section are significant: The practice of the law is more due to economic criteria than to the promotion of the participation of the citizens. This can be cri- ticised: would it be desirable that in the ‘electronic Government’ Government organisms, non-governmental associations, or institutions have a degree of participation that they may a voice (and vote) on the drafting of policies and their practice? This would allow a development of the electronic Government more in accordance with: ‘enhance the access to and delivery of Government information and services to the public, other agencies, and other Government entities’, the first objective of the law on electronic Government.

The participation of the Governments in the standardisation process was mentioned to be interesting. The problem arises when the governmental organisms, as foreseen in the Amer- ican regulation, are the only ones participating in this process. The emphasis on the standardisation orders the problems in accordance to industrial and public interests, but also brings unification and elimination of the particularity and individuality: it is advisable that the people, by means of the organisations that represent them, can give their point of view on the matter9.

It is true that the American law on electronic Government promotes the union of laws and standards, recognising the differences between both types of rules: the first ones are drafted from the application of the principle of power division and the second ones are drafted by instances integrated by the pressure groups: either technical, or more frequently, business or industrial groups10. The non-governmental organisations of a citizenship character or those of the consumers can influence in the processes. This is not contemplated in the American law.

6. Conclusion

As studied until now, the electronic Government exists and needs regulation. This is so because the democracy and the principle of separation of powers also require compliance in the world aided by the ITT. In another way, institutions and resources are introduced that are against basic essential principles of the democratic societies and State of the Law. The problem is more important if we analyse that, at this moment of time, the possibility of using the ITT by means of mobile telephones allows us carry out electronic Government applications accessible to practically all the citizens, who are not forced to know how to use non-friendly tools such as computers in order to use the virtuality offered by the ITT. We all know about the possibility of voting via mobile telephone, for example, in order to vote for a participant in a TV programme. But the regulation has to include the participation of all the citizens in its practice: nothing is achieved if independent figures are established for the electronic Government, in this case of the Administration, which regulates the applications of computer programmes without counting on the final justification the public service to all the citizens. Notes and References 1 There are various degrees of applications: the simple web page of an informative nature, the possibility for requesting information, the possibility for the Administration to reply and the possibility of a real interaction carrying out actions or procedures.

2 The selected countries are not the only ones that have developed these systems: the selection has been random: to il- lustrate the various possibilities to carry out common accesses to applications.

3 With the expression we want to highlight that the economic transactions are carried out using the mobile telephones.

4 The Commission has made numerous political declarations. See a good abstract of the consequences of these declarations in: ALABAU, A., La Unión Europea y su política para el desarrollo de la Administración Electrónica. Tras los objetivos de la Estrategia de Lisboa, Fundación Vodafone, Madrid, 2004.

5 Electronic Government is not the same as electronic Commerce: Governments are forced to rule all citizens, regardless of their technological culture.

6 Thus is included in the legal notice of the page.

8 H.R. 2458, E-Government Act of 2002, § 3601. Definitions. Signed into law, Public Law No: 107-347, by the U.S. President on December 17, 2002.

9 Those occupied in establishing new systems do not seem very democratic; they are apart from the division of powers as they establish organisms far from the citizens, characterised by their technical knowledge. See on this, for example: LESSIG. L., The future of ideas, Vintage Books, New York, 2002, p. 239.

10 There is much confusion in the practice in spite of the different sense of both types of rules: those approved by the Parliament have an infrastructure requiring its compliance. The standards, on the other hand are approved and put into practice as they work, and companies accept this practice. The election procedure of the authors of the laws is clearly different from the election of those who draft standards: the first process is democratic; the second one is not so strictly formal: depends on the will of the companies and the research centres, and after, their approval or the consent of the companies.