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DIGITAL DEMOCRACY
Why changing our clocks won't necessarily bring us faster to e-democracy
The European Parliament backed on the 26th of March the Commission’s proposal to end the time arrangements while each Member State may still decide on the time zone in national effect. In this last part of the series, four key issues regarding e-democracy will be discussed that are independent from whether we continue switching our clocks or not.
By Konstantinos Tsakiliotis
June 25, 2019
Issue of representativeness
It is evident that a sample which consists at 70% of German citizens is not representative for the EU. The problem here is not only the overrepresentation of a member state but rather the overrepresentation of those who respond against those who choose not to. Kies explains this: “you only get stakeholders or interest groups that are well organised so you are not able to tackle the ‘lay citizens’, meaning the citizens who are not interested in Europe, not aware about Europe or that are sceptical about Europe”. [1] This applies also to citizens with limited access to ICTs. This is a characteristic deficit of online public consultations that is not widely noticeable regarding questions of rather trivial nature such as the summertime arrangements.
But what if a public consultation comes into play about a divisive issue and the Commission publishes results that are surely not representative? In its actual rather primitive form of enabling citizens’ direct participation, an OCT certainly wouldn’t address such an issue. But why shouldn’t it? One could argue that the legitimacy effect is otherwise absent in favour of political tokeanism and simple PR policy,[2] if citizens are solely asked about issues of secondary importance. However, this is a question of wide historic constitutional debate which will not be addressed here.
Issue of digital divide
While we use ICTs for various forms of economic and social interaction, there is skepticism towards implementing these technologies to enhance the democratic process. However, one must not forget the inherent disparities in the other interactions mentioned that a functionable democratic process cannot afford to ignore. In other words, whereas it is an autonomous decision to rely on Amazon or the retailer across the street weighing the advantages and disadvantages, in a democracy, where a digital divide exists even at a certain degree, the introduction of voting machines, e-voting or other means other than the traditional analogue one may exclude parts of the population not familiar with these systems. The German Federal Constitutional Court asserts that control of the electoral process must be a matter and a task for the citizens.
Accordingly, every citizen must be able to reliably understand the central steps of the election without any special technical knowledge. “Only if the electorate can reliably convince itself of the lawfulness of the act of transmission, ie if the election is carried out "in the public eye", the confidence of the sovereign -which is necessary for the functioning of democracy and the democratic legitimacy of state decisions- can be guaranteed in the election of the parliament corresponding to the electoral will.”[3] It is only hard conceivable that an average citizen can understand the interna of an e-voting system, let alone the random sample voting. Of course, these arguments do not monopolize the political discussion. In Switzerland, reasons such as the possible increase of the voter turnout, the cybersecurity against traditional voter coercion and the general idea of keeping pace with the information society plead for introducing e-voting.[4]
Issue of binding force
Regarding the results of the summertime OPC[5], Commission’s President Jean-Claude Juncker told the German broadcaster ZDF “I will recommend to the commission that, if you ask the citizens, then you have to do what the citizens say”.[6] He further added, “we will decide on this today, and then it will be the turn of the Member States and the European Parliament”. Another official clarified, "it is not a referendum", saying the commission will take into account a variety of aspects, and not only the result of the consultation.[7] These statements may contradict each other but both give a glimpse into the potential effect of online public consultations onto EU’s formal political process.
In the last years, referenda were held in a trending frequency in the European continent. As recently as the 30th of last September, the people of the Former Yugoslav Republic of Macedonia voted in a referendum for renaming their country to “Republic of Northern Macedonia” ending a bitter 27-year long dispute with Greece.[8] In the latter, the Greek government called one in July of 2015 regarding the bailout conditions as proposed by its creditors. Only a year after, the majority of the British voted to leave the EU. All of these referenda were legally non-binding.[9]
Still, the dogma of not going against “the will of the people” prevailed as governments wouldn’t act contrary to the results and even when they did so,[10] they would by no means publicly admit it. While the different circumstances and interests involved in each case must be taken into account, referenda do exert some kind of force. The UK Supreme Court acknowledges in its Brexit judgement that referenda do have a political force, while citing the House of Lords Select Committee on the Constitution: “[B]ecause of the sovereignty of Parliament, referenda cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion”.[11]
A similar position comes from the other side of the Isle. The German Federal Constitutional overruled in 1958 the referenda state laws of Hamburg and Bremen. While one has to bear in mind that Germany is a country which has decided against referenda as a top-down means issued by the government addressing the citizens, the Court nonetheless takes a considerable stance: It ascribes to de jure non-binding referenda a de facto binding force, as the citizens use their sovereign powers pro-actively according to their role as constitutional subjects, even if they do not produce immediately binding effects.[12]
This line of argumentation is rather echoed by President Juncker’s statement who sees himself bound only by “ask[ing] the citizens…“. One could argue that public consultations exert a similar political impact which is strengthened by factors such as the participation rate and the public reception, whereas its exact nature is of course debatable. However, the main issue here is not that citizens are able to exert a basically political impact on the formal political process that goes beyond its de jure force, but rather that this de facto impact is not representative.
Issue of security
Talking about online public consultations one must not forget the security risks lurking to such endeavors. Amidst data privacy scandals such as Facebook’s involvement with Cambridge Analytica and the recent revelations[13] regarding similar security breaches in Alphabet’s Google+ and the implications of these on the democratic process, the awareness in the society about data protection has grown. Trust on systems security is vital to modern democracies since ICT enable a great part of the democratic process.
The European Commission informs in its privacy statement regarding OPCs that “all data in electronic format are stored either on its own servers or of its contractors, operation of which must abide by the European Commission’s security decision of 16 August 2006 [C(2006) 3602] concerning the security of information systems used by the European Commission”.[14] The degree at which this may sound reassuring regarding the measures taken to protect the data in question is open to interpretation. It is broadly shared in the tech circles that the integrity of such systems can never be 100% secure. A look at the analysis on the security system of Estonia’s i-voting system by Springall et. al. published in 2014 raises some concerns.[15] Switzerland offers $150.000 to hackers who find critical security gaps.[16]
It is evident that a sample which consists at 70% of German citizens is not representative for the EU. The problem here is not only the overrepresentation of a member state but rather the overrepresentation of those who respond against those who choose not to. Kies explains this: “you only get stakeholders or interest groups that are well organised so you are not able to tackle the ‘lay citizens’, meaning the citizens who are not interested in Europe, not aware about Europe or that are sceptical about Europe”. [1] This applies also to citizens with limited access to ICTs. This is a characteristic deficit of online public consultations that is not widely noticeable regarding questions of rather trivial nature such as the summertime arrangements.
But what if a public consultation comes into play about a divisive issue and the Commission publishes results that are surely not representative? In its actual rather primitive form of enabling citizens’ direct participation, an OCT certainly wouldn’t address such an issue. But why shouldn’t it? One could argue that the legitimacy effect is otherwise absent in favour of political tokeanism and simple PR policy,[2] if citizens are solely asked about issues of secondary importance. However, this is a question of wide historic constitutional debate which will not be addressed here.
Issue of digital divide
While we use ICTs for various forms of economic and social interaction, there is skepticism towards implementing these technologies to enhance the democratic process. However, one must not forget the inherent disparities in the other interactions mentioned that a functionable democratic process cannot afford to ignore. In other words, whereas it is an autonomous decision to rely on Amazon or the retailer across the street weighing the advantages and disadvantages, in a democracy, where a digital divide exists even at a certain degree, the introduction of voting machines, e-voting or other means other than the traditional analogue one may exclude parts of the population not familiar with these systems. The German Federal Constitutional Court asserts that control of the electoral process must be a matter and a task for the citizens.
Accordingly, every citizen must be able to reliably understand the central steps of the election without any special technical knowledge. “Only if the electorate can reliably convince itself of the lawfulness of the act of transmission, ie if the election is carried out "in the public eye", the confidence of the sovereign -which is necessary for the functioning of democracy and the democratic legitimacy of state decisions- can be guaranteed in the election of the parliament corresponding to the electoral will.”[3] It is only hard conceivable that an average citizen can understand the interna of an e-voting system, let alone the random sample voting. Of course, these arguments do not monopolize the political discussion. In Switzerland, reasons such as the possible increase of the voter turnout, the cybersecurity against traditional voter coercion and the general idea of keeping pace with the information society plead for introducing e-voting.[4]
Issue of binding force
Regarding the results of the summertime OPC[5], Commission’s President Jean-Claude Juncker told the German broadcaster ZDF “I will recommend to the commission that, if you ask the citizens, then you have to do what the citizens say”.[6] He further added, “we will decide on this today, and then it will be the turn of the Member States and the European Parliament”. Another official clarified, "it is not a referendum", saying the commission will take into account a variety of aspects, and not only the result of the consultation.[7] These statements may contradict each other but both give a glimpse into the potential effect of online public consultations onto EU’s formal political process.
In the last years, referenda were held in a trending frequency in the European continent. As recently as the 30th of last September, the people of the Former Yugoslav Republic of Macedonia voted in a referendum for renaming their country to “Republic of Northern Macedonia” ending a bitter 27-year long dispute with Greece.[8] In the latter, the Greek government called one in July of 2015 regarding the bailout conditions as proposed by its creditors. Only a year after, the majority of the British voted to leave the EU. All of these referenda were legally non-binding.[9]
Still, the dogma of not going against “the will of the people” prevailed as governments wouldn’t act contrary to the results and even when they did so,[10] they would by no means publicly admit it. While the different circumstances and interests involved in each case must be taken into account, referenda do exert some kind of force. The UK Supreme Court acknowledges in its Brexit judgement that referenda do have a political force, while citing the House of Lords Select Committee on the Constitution: “[B]ecause of the sovereignty of Parliament, referenda cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion”.[11]
A similar position comes from the other side of the Isle. The German Federal Constitutional overruled in 1958 the referenda state laws of Hamburg and Bremen. While one has to bear in mind that Germany is a country which has decided against referenda as a top-down means issued by the government addressing the citizens, the Court nonetheless takes a considerable stance: It ascribes to de jure non-binding referenda a de facto binding force, as the citizens use their sovereign powers pro-actively according to their role as constitutional subjects, even if they do not produce immediately binding effects.[12]
This line of argumentation is rather echoed by President Juncker’s statement who sees himself bound only by “ask[ing] the citizens…“. One could argue that public consultations exert a similar political impact which is strengthened by factors such as the participation rate and the public reception, whereas its exact nature is of course debatable. However, the main issue here is not that citizens are able to exert a basically political impact on the formal political process that goes beyond its de jure force, but rather that this de facto impact is not representative.
Issue of security
Talking about online public consultations one must not forget the security risks lurking to such endeavors. Amidst data privacy scandals such as Facebook’s involvement with Cambridge Analytica and the recent revelations[13] regarding similar security breaches in Alphabet’s Google+ and the implications of these on the democratic process, the awareness in the society about data protection has grown. Trust on systems security is vital to modern democracies since ICT enable a great part of the democratic process.
The European Commission informs in its privacy statement regarding OPCs that “all data in electronic format are stored either on its own servers or of its contractors, operation of which must abide by the European Commission’s security decision of 16 August 2006 [C(2006) 3602] concerning the security of information systems used by the European Commission”.[14] The degree at which this may sound reassuring regarding the measures taken to protect the data in question is open to interpretation. It is broadly shared in the tech circles that the integrity of such systems can never be 100% secure. A look at the analysis on the security system of Estonia’s i-voting system by Springall et. al. published in 2014 raises some concerns.[15] Switzerland offers $150.000 to hackers who find critical security gaps.[16]
REFERENCES
[1] Study of the European Economic and Social Committee: EU public consultations in the digital age-Enhancing the role of the EESC and civil society organisations, 20.11.2017, https://publications.europa.eu/en/publication-detail/-/publication/a3e564c1-cf37-11e7-a7df-01aa75ed71a1/language-en, doi: 10.2864/464177.
[2] Tomkova, J, 2009. E-consultations: New tools for civic engagement or facades for political correctness?. European Journal of ePractice,Vol.7 pg.51.
[3] BVerfGE 123, 39, Wahlcomputer.
[4] E-Voting: Switzerland's Projects and their Legal Framework – in a European Context
[5] OPC: Online public consultations.
[6] ZDF, Kommissionschef im ZDF - Juncker: Dauerhafte Sommerzeit wird kommen, 31.08.2018, https://www.zdf.de/nachrichten/heute/sommerzeit-juncker-zuversichtlich-100.html.
[7] Euobserver, EU gets record response on 'summertime' consultation, 17.08.2018 https://euobserver.com/economic/142614.
[8] The turnout was as low as 36% though: the Guardian, Macedonia facing crisis after name change referendum hit by low turnout, 1.10.2018, https://www.theguardian.com/world/2018/sep/30/macedonia-to-vote-on-name-change-and-ending-greek-dispute
[9]https://www.theguardian.com/politics/2016/jun/23/eu-referendum-legally-binding-brexit-lisbon-cameron-sovereign-parliament
[10] In the aftermath of the bailout-referendum which rejected the proposed conditions, the Greek prime minister negotiated a program based pretty much on similar conditions
[11] 12th Report of Session 2009-10 of the House of Lords Select Committee on the Constitution (Referendums in the United Kingdom) para. 197 cited in: R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, paras 124-126.
[12] BVerfG, Beschluss vom 30.07.1958 – 2 BvF 3/58, 2 BvF 6/58.
[13] Wall Street Journal, Google Exposed User Data, Feared Repercussions of Disclosing to Public, 8.10.2018, https://www.wsj.com/articles/google-exposed-user-data-feared-repercussions-of-disclosing-to-public-1539017194.
[14] https://ec.europa.eu/info/law/better-regulation/specific-privacy-statement_en.
[15] Springall, D, Finkenauer, T., Durumeric, Z., Kitcat, J., Hursti, H., MacAlpine, M., Halderman, J.A. 2014. Security Analysis of the Estonian Internet Voting System. doi:10.1145/2660267.2660315.
[16] The Verge, Swiss e-voting trial offers $150,000 in bug bounties to hackers, 12.02.2019, https://www.theverge.com/2019/2/12/18221570/swiss-e-electronic-voting-public-intrusion-test-hacking-white-hack-bug-bounties.
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