Prof. Lessig correctly says that “code is law”, as software controls who can do what, without exceptions.
There has been growing discontent around the world towards the control of code by the multinational giants GAFAM, and many states are introducing “digital sovereignty” rules to assert their right to determine how software should be managed.
In fact, limiting oneself to the sole consideration that they don’t like GAFAM-controlled code, is short-sighted. By putting more focus on it, before making missteps, one should ask, “and so, who should control it ?”
Control of the public administration software/data is a major power as enables control on people’s lives.
In the end, if the State (executive or judiciary branches) say you are not entitled to a service/you are not trustworthy, your life can become a nightmare, and it will be increasingly so over the coming decades.
eGovernment software is another type of State’s power, alongside the executive, judiciary and legislative branches.
eGovernment software operation, in a democracy, requires checks and balances.
Under which branch would Montesquieu position the control over State’s eGovernment software ? Who should decide its features, functions, permitted or vetoed users ? Who should run it ? Who should control it ? What type of control, accountability, transparency, oversight ?
Can we trust, over the long period, the executive branch alone to build and run egovernment software, considering potential whims and prejudices of the pro-tempore minister/secretary and the opacity of vertically integrated structures in the executive power?
Or should we put its control under the judiciary branch, with their checks and balances, by envolving private entities in the provision of public services; audit them and impose them transparency obligations ?
Or should we give the legislative branch inspective and prescriptive powers over the development and provision of software ?
Democracy is a fragile construction; oversight on egovernment software’s power is fundamental, as we must remember that States can enter an authoritarian regime simply by voting, whilst it’s not that easy to exit from an authoritarian regime.
We should deeply think about these issues and put in place, during the sunny days, the structural safeguards that help prevent dark days.
Otherwise, after Shoshana Zuboff awoke us after a dozen years of “social torpor” revealing the “surveillance capitalism” that was in front of ours eyes, in a couple of years we could wake to a “surveillance egovernment”, with the major difference that states, as opposed to companies, have the monopoly of force.
We need to think and build now safeguards to mitigate the risk of waking up one day in a condition of “Error 404 – Democracy not found”.