Administrative Vulnerability and Digital Technology: A Novel Concept for Inclusive Administrative Law

—Sofia Ranchordas, University of Groningen

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

Over the past year, I had the pleasure to write a number of columns for ICONnect on digital exclusion and digital citizenship: how digital technology is reshaping public law by providing more opportunities to tech-savvy citizens, leaving the citizens that need government the most in the dark. My columns have discussed the problem of digital exclusion in the context of public services, showing that digital exclusion is a complex phenomenon which is closely connected to the so-called digital divide: the gap between those who are connected to the Internet and those who are not.

My previous columns have drawn on the literature that argues for a concept of digital inclusion as a spectrum rather than a mere gap between the “haves” and “the have nots.” In the past, there has been a perceived dichotomy between those who are ‘digitally included’ and those who are not. Today, it makes more sense to think of digital inclusion as a spectrum – or a series of spectrums – upon which we each have our own individual place. In other words, there is not one but multiple digital divides: digital inequalities can be explained by the lack of time or mental capacity (e.g., stress), material access in the sense of lack of access to computers, digital illiteracy, and a lack of meaningful opportunities to use and engage with technology. The digital divide caused by digital illiteracy is particularly important as it is associated with different factors such as the motivations underlying the refusal or inability to use digital technology and the lack of digital skills.

The new digital divide is particularly complex as several individuals with low literacy but with practical access to the Internet through a mobile device (and thus also access digital public services), may be overlooked by government initiatives that seek to increase connectivity. Also, these excluded individuals may be ashamed to admit their lack of digital skills and may be prone to make mistakes inadvertently or use digital technology in an insecure way. A legal understanding of digital exclusion cannot be reduced to a discussion of technological or digital literacy hurdles. Nowadays, modern digital exclusion differs from the original debate on the digital divide because billions of individuals have some form of access to Internet infrastructure but are still unable to exercise their rights on equal terms in the digital society. Indeed, only a fraction of citizens worldwide can use technology to develop themselves fully. The right to participate on equal terms in the digital society and have access to public services implicates stable access to the Internet, literacy, digital skills, digital capital, user-friendly systems, and digital systems that can be used by all citizens at any point in their lives. This last element deserves to be underlined: regardless of our education, tech-savviness, age, and socioeconomic background, we all have vulnerable moments when we are less able or willing to engage with complex and foreign technological systems. Drawing on existing scholarship on vulnerability, this last column introduces the concept of administrative vulnerability in the digital age and aims to offer some research questions for future research on public law and technology.

Administrative Vulnerability

Digital government promised to simplify public services and improve the communication between citizens and government. However, for many citizens, digital government has added a new layer of bureaucracy and complexity that is particularly challenging when they need government the most and feel the most vulnerable: the death of a loved one, unemployment, or a divorce may place any citizen in a position of vulnerability. This is particularly problematic for citizens who do not have a network that can help them fill in the required digital documents, apply online for benefits they are entitled to, and are not able to use technology in such a delicate moment of their lives. Under such circumstances, citizens experiencing a moment of vulnerability, may have limited time and mental capacity to fill in online administrative forms and get acquainted with digital identities. They may thus require additional assistance. As a result of this administrative vulnerability – that is, the full or partial inability to exercise rights before public authorities and participate in public life on equal terms – citizens may feel excluded and unfairly treated by government.

Administrative vulnerability may be caused either by exogenous (e.g., socioeconomic conditions) or endogenous factors (e.g., psychological conditions, time, illiteracy). This is a reality that does not only affect low-income or marginalized populations but, in the context of digital government, can affect anyone regardless of education or income. It occurs for a number of reasons: first, in recent years, the number of government officials providing assistance to citizens has been drastically reduced due to government cuts, leaving citizens alone with their requests and not always able to obtain assistance in filling in online forms. Second, the disappearance or attenuation of the human element in the context of public services has meant that there is less room to consider individual and exceptional circumstances. While this consideration would fit well with the principles of good administration, most citizens facing challenging circumstances may be unable to invoke them (for example, before the public ombudsman). The increasing automation of services may further dehumanize government decision-making, treating all citizens in a similar way, even though some may at some point deserve greater leeway. Third, the design of digital government overlooks this administrative vulnerability. Instead, existing systems consider access to technology by individuals with disabilities but do not account for one-time and exceptionally vulnerable moments that may limit one’s capacity to act as ‘the average citizen.’

Administrative Vulnerability as Inequality

The concept of administrative vulnerability is a reality that most of us know too well. Yet, it still does not exist in Western systems of public law that regard the citizen as an individual with the average ability to engage with government and its digital tools. In ongoing research projects, I argue that administrative vulnerability is a new form of inequality that deserves more attention from public lawyers, policymakers, and technology companies designing systems for digital government.

We know very little about the legal position of citizens who feel excluded because of the shift to digital government and the extent to which this shift enhances their vulnerability. We do not know who is vulnerable and when, what triggers the need for assistance, how digitalization can help or make citizens shy away from requesting the public services they are legally entitled to. We also do not know how the exercise of fundamental rights before public authorities is affected; who, when, and why is left behind, how to help them, and how to redesign digital government and online administrative adjudication to advance equal access to public services.

Unequal access to digital government is an urgent problem that is reshaping our public values and the exercise of fundamental rights. It is also a problem that is only likely to increase worldwide, since access to public services in Western countries pervasively takes place through digital government. Moreover, technology is increasingly reshaping administrative adjudication, that is, the process through which public authorities issue affirmative or negative individual decisions about citizens (e.g., grant/reject a license). Technology may enhance convenience for tech-savvy citizens, but it exacerbates bureaucratic deficiencies for vulnerable citizens who cannot fill in dozens of non-intuitive forms online. Digital government remains a labyrinth for millions of vulnerable citizens who still do not exercise all the rights they are entitled to.

While administrative adjudication is changing with the pervasiveness of digital technology, the key values of administrative justice have stayed the same and continue to promise citizens a fair, equal, rational, and transparent access to public services. The list of questions that lawyers need to keep asking includes: How can government guarantee that citizens can always exercise their rights regardless of their vulnerabilities? How will these values be effectively respected in the digital sphere? How can we operationalize these values in the digital context and guarantee that everyone feels included? These are just a few questions that will hopefully inspire more comparative constitutional and administrative law scholars to engage with the impact of digital technology on public law.  

Suggested citation: Sofia Ranchordas, Administrative Vulnerability and Digital Technology: A Novel Concept for Inclusive Administrative Law, Int’l J. Const. L. Blog, Nov. 11, 2020, at: http://www.iconnectblog.com/2020/11/administrative-vulnerability-and-digital-technology-a-novel-concept-for-inclusive-administrative-law/