ICT and Environmental Regulationin the Developing World:Inequalities inInstitutional Information Infrastructures

Rónán KennedySchool of Law, NUI Galway

ronan.m.kennedy@nuigalway.ie

Image: European Space Agency

Overview• Background: ICT and environmental

regulation• ICT in Regulation: Rule of Law issues• IS as a means of dependency and values

transfer• Conclusions and recommendations

Millennium Development Goal Target 8F

• In co-operation with the private sector, make available the benefits of new technologies, especially information and communications

WSIS Action PlanTarget C7.20.a

• Governments, in cooperation with other stakeholders are encouraged to use and promote ICTs as an instrument for environmental protection and the sustainable use of natural resources.

Benefits of ICT for ERNew modes of regulationImproved resource efficiencyIncreased effectivenessPotential significant contribution to SD

ICT in Developing World

• Use and availability varies significantly• Technology proportionately quite expensive• Greater use of centralised/shared services• Greater use of mobile and wireless• Adaptation a greater priority than mitigation

Applications of ICT

Environmental observationRemote sensing and satellite imagingWaste managementLand-use change

Applications of ICTAnalysis and modellingEnvironmental planning (especially agriculture)Environmental management and protectionMitigating effects of ICT utilisation (e-waste)Environmental capacity building

Practical Challenges• Capacity, skills, political will?• Power and control lies with developers• Little evidence that ICT is a better

investment than e.g. education or health• Developed world system lack mētis (local

knowledge, meanings, and understandings)

Power and Control• Whose needs are prioritised?• What assumptions does ICT carry with it?• Can DCs engage fully with technology

creation and standard-setting?• Can ICT create further dependencies?• Can e-government/e-governance help the

poor?

Law and ICT: Unpacking the Relationships

• What are the consequences of the widespread use of ICT by regulators?

• The computer as an invisible and unstudied tool

• ICT as ‘frozen institutional discourse’• Example: Tamil Nadu land registry

E-Regulation

Cannot simply re-use private sector experiencesNew research topic: “The use of ICT within regulators and those who deal with them, such as NGOs, as an integral part of the process of measurement, assessment and feedback which is central to regulation.”

Benefits of E-RegulationBenefits: cheaper, more, quicker, better, newImprovements:

Better informedMore targetedMore iterativeMore transparent and democratic

Difficulties with E-RegulationICT not neutral or deterministicImpact on existing imbalances?Disempowering external actorsBrake on change:

InstitutionalOrganisationalProcedural

ICT and Legal ProcessesLegal processes neither simple nor linearNot easily modelled by logic or expert systemsRisk of destructive feedback cycleICT as embedded and entrenched infrastructure

Rule of Law ‘all persons and authorities within the state, whether

public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’ (Lord Bingham)

Essential elements (Venice Commission): Legality Legal certainty Prohibition of arbitrariness Access to justice before independent and impartial courts Respect for human rights Non-discrimination and equality before the law

ICT and the Rule of Law

Preserving regulatory discretion while ensuring fairness

‘Ambient Law’ Dangers of digital decision-making

Closed, inflexible, unaccountable systems Containing assumptions, biases, mistakes

Querying the Myths of E-Government

Formalising practices and knowledge is difficult

ICT can be a brake on reform People can resist ICT-driven change Need to ‘Get It Right First Time’

“Get It Right First Time”Awareness of ICT and power relationshipsDesign principles:

FlexibilityRule of lawHuman rightsOpen, re-usable data

Configuring the Networked State

Open source code Increasing digital literacy ‘Governance on the Inside’