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4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal Panel IPSA-RC48 – Session 1 or 2 Transparency and E-governance (administrative culture) Mayors in cyberspace: Lessons from the Netherlands regarding the role of local government in the event of digital disturbance of the public order Author(s) Dr. Willem Bantema NHL Stenden Hogeschool [email protected] Date of presentation June 28, 2019 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal Introduction Four youths were injured in the panic resulting from a threatened shooting at a secondary school in Curacao. Soon it became clear that the episode was only a prank, based on false information disseminated over social media. The hoax was fuelled by a video clip on Facebook, which showed armed boys in a driving car, swinging their weapons. The clear relationship in this case between social media and public order is not new. Consider, for instance, the police shooting in Ferguson; the London riots of 2011; and the social unrest, social media hoaxes, and false news regarding the fire in Notre Dame Cathedral in Paris. Recent advances in digitization have resulted in an increasing number of parties involved in security and safety issues. Security and digitization often intersect in the domain of cybercrime, but their intersection also includes issues of surveillance and maintaining law and order. This paper focusses on the role of mayors in the Netherlands in the preservation of public order and safety when the internet and social media are involved. Dutch mayors have several administrative powers that can be used in the prevention of disorder in local public life. The local perspective taken in this paper may be surprising, for several reasons. Firstly, because the internet and social media are neither purely public or nor purely private, it is unclear who is responsible for their regulation. Secondly, if the internet and social media are worldwide in their scope, what is the advantage of adopting a local perspective on the regulation of public order? Thirdly, regulation of citizens’ online behavior is typically seen as the domain of criminal law, given the criminal character of some of this behavior and given the laws protecting freedom of speech that frustrate the possible use of administrative powers to regulate such behavior. In other words, the relevance of local governance and mayors is not obvious. However, there are certain reasons why the perspective of mayors in the Netherlands has been chosen for this paper and why this perspective could be fruitful in relation to the regulation of social media. First of all, the Dutch criminal justice system is heavily overcharged, and exploration of the use of administrative powers may support or strengthen 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal criminal justice. Secondly, most behaviors of online agitators are not criminal offences and not a domain for prosecutors. Thirdly, a growing proportion of societal and human interaction occurs online, and thus public order is increasingly related to the internet and social media, in which the offline and online worlds are heavily entwined. Fourthly, Dutch mayors have particular administrative powers that they can use to preserve public order and safety, and there are cases in which they might be able to use these powers in a digital environment. In addition, the legal basis for the administrative powers of mayors is formulated openly and broadly, so that cyberspace and social media could likely be included within the definition of these without controversy. Fifthly, and related, criminal law is applied after the fact, and so is often too late to prevent public order problems and related societal costs, while administrative law is faster and thus potentially more useful in preventing disturbances of public order. For instance, when a social media agitator calls for a great event in the centre of a city, a mayor likely possesses the power to prevent this through early intervention, before a public order problem arises. A sixth and final motivation for this paper is the fact that no other scholars have taken this local perspective on social media and local public order. How is a local Facebook page different from a physical square? Research question Can the administrative powers of mayors in the Netherlands be used online to prevent local public order problems related to the internet or social media? And what are the views and experiences of practitioners about using these powers online? Structure The paper is divided into six sections. In the first section, the legal framework and context of Dutch mayordom is briefly described, followed by a short section describing the methods used in this study. Next, some examples of digital disturbances of public order are reviewed. The last three sections offer a legal analysis of the application of mayoral administrative powers over public order in an online world and reflect upon definitions and the views of mayors regarding their role in cyberspace. This paper ends with lessons learned from this study. 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal 1. Dutch mayors, their administrative powers, and their legal framework, in brief As of 1 January 2019, the Netherlands has 355 municipal authorities1. Municipal authorities perform many different tasks, including registering residents, building roads and footpaths, providing social services, and maintaining law and order. Mayors are generally responsible for maintaining law and order, crisis management, and representing their councils at the national and international levels. Mayors decide how to deploy police forces to ensure public security. For example, they have powers to close illegal cannabis plantations, evict people from their homes if they commit acts of domestic violence, and take emergency action to counter threats to public security and order. In the event of an emergency, the mayor leads the crisis team. In the Netherlands, a mayor is a non-elected administrative authority appointed by the national government. The mayor chairs both the executive board and the legislative council of the municipality and is responsible for safety and public order. A short description of public order and safety is needed to understand the exploration of the ‘law in action’ in this study. The term ‘public order’ is broadly defined, and its meaning is often debated by lawyers and scholars. The Dutch government (1988) explains it as the ‘desired level of order and rest in public life.’2 In the Dutch academic literature, it is defined as ‘the regular course of events in public spaces’.3 Article 172 of the Municipality Law determines that the mayor is in control of the enforcement of public order and safety and has administrative powers to support him in this task. According to Article 172 of the Municipality Law, enforcement includes ‘maintaining and re-establishing of the local public order and ensuring compliance in the case of non- compliance, when order and rest in the local public life are disordered’. Thus, the administrative powers of mayors can be used in the prevention of disorder in local public life. 1 At 1 of January 2018 (during our study) the Netherlands has 380 municipal authorities. 2 Kamerstukken 11, 1988/1989, nr. 10, p. 89. 3 De jong e.a. 2016. P.10-11. 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal Also important to mention is the definition of ‘public space’. Public space can be divided into public spaces (1) and publicly accessible spaces (2). Public spaces are accessible to everyone without such restrictions as tickets, membership, or other permissions or conditions formulated by the owner of the space. Examples of public spaces are streets, public squares, and terminals. Publicly accessible spaces are also open to the public, but access is related to specific goals and the owners of these spaces can formulate conditions for or restrictions upon access. Examples of publicly accessible spaces are restaurants and hospitals. Besides public spaces and publicly accessible spaces, there are also private spaces, such as residences and other fully restricted spaces. These sorts of spaces are not the domain of mayors in their role as guardians of public order and safety unless public order is disturbed from such a place. Examples of administrative powers to regulate public order and safety are a preventive payment penalty (to prevent an actual offense from happening), an area ban (the creator of a nuisance is banned from a specific area for a set period of time), and an administrative power to close houses used for criminal activities such as drug trafficking. 2. Methods This explorative study is based on a legal analysis and interviews with 25 experts and 14 mayors to investigate their views on the potential role of mayors in administrative law enforcement in cyberspace. The interviews took place between 1 July 2017 and 20 May 2018, and the duration the interviews varied from 30 minutes to 1 hour. The study was funded by Police & Science. 3. Experiences and examples of digital disturbances of public order 3.1 Examples from the Netherlands Before embarking upon a legal analysis, we first present some examples of digital disturbances of the public order in the Netherlands mentioned by our respondents. These concern, for instance, online calls (over social media) for a water fight with water guns, online calls for demonstrations (without permission), hypes and influencers on social media, 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal soccer hooligans, and announced fights. In some cases “sexting” and social media (based on criminal law in the Netherlands) even leads to suicide and societal unrest in municipalities. Other examples include calls for events like Project X (mobilization), online blaming of administrators or other authorities like the police, and threatening tweets about a potential school shooting (fake news).