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- SAGE
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- © The Author(s) 2023
- ISSN
- 2053-9517
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- 2053-9517
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- 10.1177/20539517231164113
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Abstract
This article investigates future visions of digital public administration as they appear within a particular regulatory process that aims to enable automated decision-making (ADM) in public administration in Finland. By drawing on science and technology studies, public administration studies, and socio-legal studies we analyze law in the making and identify four imaginaries of public digital administration: understandable administration, self-monitoring administration, adaptive administration, and responsible administration. We argue that digital administration is seen from the perspective of public authorities serving their current needs of legitimizing existing automation practices. While technology is pictured as unproblematic, the citizen perspective is missing. We conclude that the absence of an in-depth understanding of the diverse needs of citizens raises the question whether the relationship between public power and citizens is becoming a one-way street despite of the public administration ideals that express values of citizen engagement. Keywords Automated decision-making, socio-legal studies, relationship between citizens and public authorities, sociotechnical imaginaries, law reform, public administration In this article, we examine future visions of digital public Introduction administration as they appear within a particular regulatory Public organizations are automating their decision-making process that aims to enable automated decision-making processes in taxation, social security, immigration, and in (ADM) in public administration in Finland. The reform sig- many other areas. The discourses on digital public adminis- nifies an important step towards regulating not only auto- tration centre around technological innovation and the com- mated but also more broadly digital systems in public plexity of computer-based epistemic procedures administration. We ask: How is good digital administration (Katzenbach and Ulbricht, 2019; Koulu, 2021), raising envisioned? What are the perceived problems ADM pre- doubts about the ability of regulatory action to keep up sents for the relationship between public power and citi- with the speed and transformative impact of digitalization zens? Our analysis maps out how law-making produces (Brownsword, 2019; Floridi, 2018; Konrad and Böhle, and mediates different visions about digitalization, with 2019). The regulatory narratives about digitalization tend impacts on the relationship between citizens and public to form around two opposed ideas: either administration power. becomes more intrusive and pervasive, or more inclusive, responsive, and diverse (Katzenbach and Ulbricht, 2019). But which narrative is more persuasive? And what is the Institute of Criminology and Legal Policy, Faculty of Social Sciences, role of law-making in creating, enforcing, and realizing University of Helsinki, Helsinki, Finland these narratives that shape social reality? Due to the Faculties of Social Sciences and Law, University of Helsinki, Helsinki, social embeddedness and contextuality of digitalization, Finland answers need to be sought through situated analyses and Corresponding author: empirical knowledge that provide a better understanding Terhi Esko, Institute of Criminology and Legal Policy, Faculty of Social of the ongoing regulatory priorities and institutional voids Sciences, University of Helsinki, Snellmaninkatu 10, 00014 University of in democratic decision-making (Broomfield and Reutter, Helsinki, Helsinki, Finland. 2022; Lepinkäinen and Malik, 2022; Van Zoonen, 2020). Email: terhi.esko@helsinki.fi Creative Commons CC BY: This article is distributed under the terms of the Creative Commons Attribution 4.0 License (https:// creativecommons.org/licenses/by/4.0/) which permits any use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access page (https://us.sagepub.com/en-us/nam/open-access-at-sage). 2 Big Data & Society As law is a potent form of social engineering (Cohen, institutional perspectives, or through possible misuse of 2019; Pound, 1942), regulatory processes on digitalization technological systems. Because imaginaries are persuasive, provide an interesting vantage point for examining the there is a danger of further distancing the citizen from expectations, concerns, and hopes of our technological digital public power, of less interactive and participatory futures. Legal regulation, and the political process that pro- communication, and an institutional predisposition duces it, participate in conceptualizing and steering digital- towards ignoring the heterogenous individual and collective ization by drawing the boundaries for acceptable and needs of citizens. unacceptable use of automated systems. In other words, Our findings demonstrate that the imaginaries naturalize technological futures are discussed and negotiated, made, digital technologies, rendering their use unproblematic. unmade, and decided upon, within, around, and in relation This disguises the problems that originally led to the need to legislative processes. Once a law is enacted, certain to regulate ADM. We start by looking at the prior literature hopes for the future become fixed, although uncertainty on socio-technical imaginaries, administrative ideals, and about the law’sfulfilment remains in the hands of those socio-legal studies. We then provide a contextualization applying and enforcing the law. It is not only law that is of the Finnish ADM reform, followed by a description of affected, for framings adopted in legislation tend to our research design, data analysis, and the findings. In the become authoritative and decisive for broader meaning- discussion, we take up the materialization of imaginaries. giving in society. By looking at the ADM reform through We conclude by suggesting that a critical investigation of the lens of sociotechnical imaginaries, the implicit assump- automation should be made in future research. tions behind these framings become visible. Drawing from science and technology studies (STS), public administration studies, and socio-legal studies on Conceptualizing imaginaries and ideals in law, technology, and society, we argue that technological prior literature futures discussed in the context of digital public administra- To explain visions of better digital administration we draw tion, are not actually visions about technology itself but on science and technology studies, public administration lit- about articulating administrative ideals. These future ima- erature, and socio-legal studies (Jasanoff and Kim, 2009; ginaries reshape the role of the citizen vis-à-vis administra- Koulu, 2021; Rose et al., 2015). Despite their differing tive institutions, a relationship defined by power origins, these approaches operate with the concepts of asymmetries and the potential for abuse that administrative ideals and imaginaries, that is, what is valued, desirable law seeks to mitigate through accountability and oversight. or risky, and address the role of technology in social However, these existing legal frameworks are often at odds change. Combining these insights enable the identification with automation, contributing to the perceived urgency of of sociotechnical imaginaries embedded in the ADM regulatory action. For example, the legal rules on liability reform, as they relate to expectations of what constitutes and accountability reflect an implicit assumption of good administration and how technology contributes to cre- human bureaucrats who are ultimately responsible for exer- ating better public services. We start by looking at socio- cising public power and who are hence personally account- technical imaginaries (Jasanoff, 2015a), followed by the able for its misuse, an assumption that no longer holds true ideals behind e-government discourses to show how with automation (Koulu, 2020). The need to resolve these citizen perspective as part of the ideals of public administra- tensions between law and digitalization creates the venue tion has evolved over time (Rose et al., 2015). Finally, we for imaginaries to emerge but also forces the focus on discuss socio-legal studies with respect to values embedded technology. in technological design, which contextualizes the debate of Our study provides a qualitative content analysis of the imaginaries in the realm of law and digital technologies Finnish ADM reform in the making. We present four dis- (Brownsword, 2019; Koulu, 2021). tinct but overlapping imaginaries of digital public adminis- tration that come into play: understandable administration focusing on simplicity, explainability, and clarity; self- Sociotechnical imaginaries monitoring and autonomous administration that should not be burdened with external control; adaptive administra- Sociotechnical imaginaries are future-oriented visions tion that goes beyond technology adoption; and, finally, a about social and technological developments that relate to weaker imaginary of responsible administration that certain goals, often steering possible courses of action strives for equal and inclusive service to all citizens. All (Jasanoff, 2015a). Visions and imaginaries try to balance these imaginaries emphasize the perspectives of public the hopes related to scientific and technological achieve- institutions, whereas citizens’ perspectives are lacking ments while at the same time managing their risks. from all but the last one. The average citizen becomes Sociotechnical imaginaries direct nation-specific techno- visible indirectly, either through his or her expected (lack logical projects and shape social responses to innovation of) capabilities and needs that remain subordinate to as they are often accompanied by official policy Esko and Koulu 3 instruments, which is why some imaginaries are collective (Janowski et al., 2018; Margetts and Dunleavy, 2013; and long-lasting (Jasanoff and Kim, 2009; Sismondo, Rose et al., 2015). 2020). At the same time, imaginaries are temporally situ- Rose et al. (2015) provide a categorization of four ideals ated, contested, and culturally specific, which makes them of public administration that have dominated digitalization flexible and dynamic (Jasanoff, 2015b; Mager and initiatives during the 2000s: professionalism, efficiency, Katzenbach, 2021). service, and engagement. Each includes assumptions There is ample literature on conceptualizing and con- about the role of technology and its use in public adminis- structing sociotechnical imaginaries in various geograph- tration. The perceived usefulness of technology reflects ical and political settings, e.g., health data and policy, views of what constitutes good public administration, and energy, and digital transformation (Konrad and Böhle, these views are historically contingent on different value 2019; Tidwell and Tidwell, 2018; Tupasela et al., 2020). positions and ideologies. Prior studies demonstrate that imaginaries centre around The ideal of professionalism reflects the rule-oriented the unlimited benefits and potential of technological inno- traditional bureaucracy articulated by Max Weber in the vations, while risks are seen as manageable (Chan, 2021). 1940s. This kind of bureaucracy aims for an independent Recent studies on the historical development and public and accountable administration and considers technology imaginaries of AI in the media suggest that imaginaries as infrastructural (Rose et al., 2015). Technology provides rely on myths and vague terminology, which create ambi- security and compliance with the law, enforcing bureau- guity and uncertainty (Natale and Ballatore, 2020; Scott cratic rules. The efficiency ideal focuses on minimizing Hansen, 2022). Optimism over new technologies seems to the waste of public resources and is associated with cost prevail, emphasizing efficiency expectations (Lepinkäinen reduction and productivity, reflecting the value positions and Malik, 2022). of the business-oriented New Public Management (NPM) In the legal domain, sociotechnical imaginaries have not of the 1980s. Technology serves productivity, enabling been utilized as extensively as they could have. We suggest rationalization (Orlikowski and Iacono, 2001; Rose et al., they provide dynamic and flexible conceptualizations of 2015). The service ideal reflects the Public Value future visions, in contrast to the normative rationalities of Management approach, which originated as a backlash public administration. Their steering effect comes from against NPM in the 1990s. In e-government, the service outside the law, which is why they entail a future-oriented ideal turns civil servants into responsive actors and and situated concept for looking at legislative processes. service provision is guided by citizen orientation, aimed The highly normative context of law-making restricts the at producing social value (Grimsley and Meehan, 2007). creation and emergence of socio-technical imaginaries. To Technology improves the availability of public services. maintain coherence, new regulation must comply with The citizen becomes a customer and a subject. Finally, existing legal rules and foundational legal concepts with the engagement ideal highlights the interactional relation- their own historical background. Moreover, the law stipu- ship between public administration, citizens, and civil lates the procedures and practices of law-making, e.g., in society, thus aligning with the values of the New Public consultation processes, which direct the modes of participa- Service. Public administration supports the co-production tion. These modes shape how imagining can happen. of policy, which sees citizens as active participants. Although this domain imposes its own rationalities on Technology becomes a networking facilitator and a social those who wish to engage in the formation of ADM in relations tool (Orlikowski and Iacono, 2001). public administration, space remains in which ideals and We perceive an important shift in the self-understanding imaginaries emerge and become entwined with legal of administration. The first two ideals are strongly internal rationalities. to public administration, as they stress the functioning of the administrative system and the authority of a legitimate professional. The other two ideals, however, operate with Ideals of digital public administration an outward-directed and interactional administration In public administration, the interest in digital technologies vis-á-vis an active citizen. In comparison with sociotechni- has directed research towards changing values and ideals cal imaginaries, these administrative ideals emphasize the (Bannister and Connolly, 2014). Although administrative social and administrative contingencies that also inform values are entwined with legal rules and structures as dis- the digitalization of public administration, whereas imagin- cussed, they cannot be reduced to one another. To demon- aries focus on technology and ensuing reimaginations. strate this, we draw attention to public administration While the value ideals presented by Rose et al. (2015) studies that have traced the historical and ideological provide a retrospective picture of the broader changes shifts and continuums of digital public administration. within public administration values, recent studies have Scholars have suggested an ideological shift toward citizen pointed to a deepening interest in the interactional and per- engagement, responsive administration, and public value sonal dimensions of digital bureaucracy. Ranchordas creation, leading to ‘platform paradigm’, or e-government (2021), for example, suggests that administrative empathy 4 Big Data & Society recognizes the diversity of citizens, placing the emphasis on Before proceeding to our research design, methodological the skills of citizens and the possibilities of alleviating the choices, and data analysis, we will discuss the Finnish efforts shortcomings of automation. within the public sector to contextualize our study. Finland: a forerunner of digitalization encountering legislative problems. Described as a high-trust society, Finland has Contextualizing imaginaries of law, technology, and high levels of institutional trust accompanied by reliance society on digitalization. In the EU Commission’s Digital Socio-legal studies elaborate the implications of digital- Economy and Society Index (DESI, 2022), Finland ranks st nd ization on fundamental rights on practical and theoretical overall 1 and in digital public services 2 of all the levels (Yeung, 2017). We draw attention to two tensions. member states. Hence, Finland forms a laboratory for digit- First, there is an inherent tension in technology regulation alization and associated governance issues. Several govern- between the need to regulate specific technologies while ments have promoted digitalization and the currently aim to maintaining technological neutrality, i.e., the impartiality make digital services available to all citizens and businesses of legislation towards different technological methods by 2023 (Marin’s Government programme, 2019). and applications. A clear scope of application is necessary Administrative automation has an established tradition for legal clarity and predictability, but definitions should in Finland dating back to the 1980s and 1990s. Several remain sufficiently general and flexible to accommodate public authorities, such as the Tax Authority and the technological change. Second, research highlights the Social Insurance Institution have implemented their ever-present challenges of technology regulation: the digital systems independently without an explicit legal need and complexity of assessing the sufficiency of exist- mandate, based on the perception of digitalization as a tech- ing legislation, its effectiveness in advancing different nical issue of organizing work practices. The current ADM regulatory goals, and the predicted impacts of new regu- reform was initiated by the Ministry of Justice in early 2020 lation (Bennett Moses, 2013; Brownsword, 2019; in reaction to increased pressure from Parliament’s constitu- Hydén, 2022). Scholars also discuss the normativity of tional committee and public oversight authorities. These technological structures that guide and force human concerns highlighted problems related data protection in behaviour in different ways than legal structures. This immigration (PeVL7/2019vp), social security and insur- social ordering and technological normativity emerges ance legislation (PeVL78/2018vp), and ADM in tax admin- from the design choices of programmers and system istration (EOAK3379/2018). In response, the Ministry of architects and is distinct from the normativity of law, Justice initiated its work to include ADM in the which obtains legitimacy through the democratic Administrative Procedure Act. Legal concerns relate to process (Hildebrandt, 2008; Lessig, 1999). selection of cases for automation, the publicity of algo- In sociotechnical imaginaries, law is often presented as rithms, good governance/legal protection, and liability. reactive, as the imaginary of governable technological In our understanding, any attempt to discuss ideals of emergence is the naturalized narrative (Hurlbut, 2015). digital public administration would be too limited without The idea of retrogressive law can be used to argue for indus- recognizing the role of legal rules and principles, particu- try self-regulation against government interference, where larly administrative law, and European technology regula- the latter is seen to hinder technological innovation. tion, which provide socio-legal context. Digitalization of However, there is dynamic reciprocity between law and public administration must comply with peremptory regula- technology, as law structures technological development tion that explicates the legal orientation of what is and has through various mechanisms, but is simultaneously and historically been considered good and desirable in public continuously shaped by these developments (Cohen, administration. These principles bring coherence, legal cer- 2019). This entails that technology regulation and legisla- tainty, and predictability to administrative practice over tive processes become central for striking a balance long periods of time and societal change. However, good between the contrasting interests of realizing the potential administration can be interpreted in many ways, affording of technological development while mitigating the risks different ways of exercising public power (Koivisto, 2014). for social justice and fundamental rights (Cloatre and The principles of good administration are provided Pickersgill, 2020). Implicit assumptions about technology for by the Constitution of Finland (731/1999) and the and human behaviour may become embedded and sedimen- Administrative Procedure Act (434/2003). Once enacted, ted into regulation, both inadvertently and consciously the ADM reform will introduce new sections on general (Koulu, 2020; Lindroos-Hovinheimo, 2021). Simply put, conditions for automation to the Administrative Procedure law drafting is the arena for imaginaries to emerge, to Act and new sections on liability and deployment to the be negotiated and translated, and is the process in which Act on Information Management in Public Administration they become sedimented into legislation as implicit (906/2019). Although administrative law is typically assumptions. bound to national jurisdictions, most share core values, Esko and Koulu 5 which adds to the relevance of our analysis beyond national Research design. We focused on the ADM reform’s initial settings. These supranational administrative law principles stages because law in the making provides an opportunity include i.a. lawfulness, equality, impartiality, legal cer- to imagine futures for digital administration. Studying the tainty, and participation, as exemplified by the Code of pre-parliamentary phase reveals the existing imaginaries Good Administration of the Council of Europe (CM/ on technology and citizens’ roles that guide the renegotia- Rec(2007)7; Stelkens and Andrijauskaite, 2020). tions on the objectives of digital public administration. Alongside transparency and publicity, the Nordic tradition During consultation, actors can influence the law and the of administrative law emphasizes the service principle, floor is open to interpretations of how the law should be which requires public officials to account for their custo- reformed, what technologies should be included, and mers’ needs and inform the public about services and activ- what is the position of citizens in this change. In fact, the ities. Moreover, the service principle is continuously pre-parliamentary phase can be considered more influential reinterpreted in legal praxis. For example, the highest than the parliamentary phase when the content and scope of instance of legality control in Finland, the Chancellor of the law are determined (Lepinkäinen and Malik, 2022). The Justice, interprets the service principle to include the obliga- political is embedded in the public consultations, as societal tion for appropriate user testing of digital public services stakeholders, advocacy groups, and civic movements are (OKV/2019/1/2017). invited to participate. The outcomes can later be seen in Despite the different application scopes of national the actual law, affecting what is changed and how the jus- administrative law and European technology regulation, tifications are presented. these legal regimes share values. Transparency and access to public documents and recordings are constitutional Methodology and data. Our primary data were the written rights in Finland (Article 12 of the Constitution, the Act statements during two consultation rounds in 2020 and on the Openness of Government Activities (621/1999)) 2021. In addition, the documents related to the law but transparency is also the cornerstone of European tech- reform were used as background material. We regarded nology regulation, e.g., Article 12 of the General Data the written statements as critical points because of the open- Protection Regulation (GDPR, 679/2016). ness of the consultation phase before the political parlia- There is inherent overlap as well as tensions between mentary debate. The statements are a special form of text EU-level and national regulations, which the Finnish as they answer questions posed and structured by the legis- ADM reform exemplifies. One of the drivers for the lators. However, statements serve as institutional responses Finnish ADM reform was Article 22 of the GDPR, which through which the actors shape the public imagination and bans individual automated decisions without consent or eventually have an impact on administrative practices. legal basis in national law. These overlaps and tensions From our perspective, imaginaries also produce silences, are bound to multiply, as the EU’s second digital agenda as they select certain pathways and create path dependen- for 2020–2030 sets out to introduce various new legal cies when suggesting possible futures. instruments for artificial intelligence (AI) and data Our data were collected through two official online ser- sharing, some of which are already passed or are in the legis- vices, which contained the documents and the statements. lative process. In February 2023, the proposal for the The first included documentation of the law reform and 1 2 Artificial Intelligence Act (AIA, COM/2021/206) is still its timeline the second the written statements. All state- awaiting the vote at the European Parliament, but once ments are accessible and can be retrieved from the online enacted, its provisions will impose additional compliance services free of charge. Statements were written in requirements for AI systems used in high-risk sectors, includ- Finnish, although two stakeholders commented in Swedish. ing parts of public administration. In addition to directly The first round of statements was requested by the binding EU regulations, Finnish public institutions must Ministry of Justice in 2020. The content of the request comply with EU directives, e.g., the Web Accessibility related to the problematizations of ADM in the assessment Directive and its national implementation (306/2019). memorandum published earlier by the Ministry. The These directives include obligations for public organizations request included eight themes relating to the principles of to ensure the accessibility, understandability, and user- good governance: the current state of ADM and regulatory friendliness of digital public services. needs, delimitation of ADM use, ensuring good governance It is relevant for our analysis that the Finnish ADM reform and legal protection, information system regulation and the attempts to establish legal rules and principles for digital liability, publicity, and transparency of public decision- public administration. From the STS perspective, this means making, data protection, and other regulatory concerns. that sociotechnical imaginaries do not operate in a vacuum The Ministry reached out to 84 stakeholders, of which 58 but are instead entwined with and limited by these legal fram- commented on the request. An additional seven other ings. Ultimately, the law itself embodies ideals and imagin- actors provided statements online. aries that might need reimagining – and which may be The second round of statements was requested in 2021, reimagined through lawmaking (Brownsword, 2019). with narrow focus on draft provisions suggested by the 6 Big Data & Society working group of the Ministry, with specific yes-no ques- scrutinized how the imaginaries portrayed citizens, technol- tions. The citizen perspective was recognized mainly in ogy, and administration, what kind of argumentation was relation to publicity and transparency, i.e., how administra- used, and how they naturalized ways of thinking about these tion must inform about ADM. The request itself directed interrelations (Jasanoff, 2015a; Mager and Katzenbach, 2021). statements towards legal technicalities and allowed less room for deliberation. The Ministry requested comments Findings directly from 106 stakeholders, receiving 58 statements and an additional five statements from other stakeholders. In the imaginaries of digital public administration, our focus In 2022 the working group published a report in the form is on the envisioned relationship between citizens and of a draft government proposal, which was merged with the public power. In the first imaginary, technology is Ministry of Finance’s work on information systems and complex and risky if too much is revealed to the average given to Parliament. The ADM reform is currently citizen. The second imaginary discusses technology from pending at the Parliament. Figure 1 shows the timeline of the viewpoint of a well-functioning, customer-oriented the law reform and the data. administration. The third imaginary suggests that flexible technological solutions ensure interorganizational compati- bility. The final imaginary frames technology as risky for Analysis vulnerable citizens, possibly leading to discrimination. We started by looking at how the statements identified and Table 2 summarizes the imaginaries and how citizens, tech- discussed citizens, customers, and administrative subjects. nology, and automation are perceived in them. In the fol- These terminological passages functioned as entry points lowing, we discuss the imaginaries in detail. to the data, followed by inductive qualitative content ana- lysis to identify, cluster, and categorize topics. This resulted Understandable administration in themes that ran through the data connecting framings of citizens, technology, and administration (Elo & Kyngäs, The imaginary of understandable administration frames tech- 2008; Graneheim et al., 2017). Our unit of analysis was a nology as too complex for citizens to understand. The relation- body of thought that included several sentences (a text ship between digital public administration and citizens relies excerpt). We followed three interconnected analytical on thenotionofanaverage citizen, emphasizing that the phases: reduction, clustering, and abstraction from the ‘average citizen’ should not be expected to understand tech- data (Tuomi and Sarajärvi, 2018). First, we condensed the nology or decision-making processes. Because of the com- original expressions, after which we grouped them, plexity of automation, citizens should be provided with forming sub-categories. These were then combined and col- comprehensible descriptions of how ADM works, but no lapsed into broader categories. Throughout the analysis we details on, e.g., source code. Public authorities are responsible reflected on the similarities and differences between the cat- for publishing understandable information on automation, but egories to ensure they belonged to the same clusters. technological specificities are omitted as trade secrets or as Finally, we formed main categories, resulting in four ima- incomprehensible to the ‘average citizen’. ginaries. Table 1 presents a simplified example of the ana- The imaginary’s proponents represent large institutional lysis after the reduction phase. actors in Finnish society, such as ministries, industry, and The topics most often mentioned in relation to citizens social insurance institutions. By suggesting that automation were the publicity/transparency of decision-making and is hard to understand, the citizen is constructed as ignorant the program code (what the citizen needs to know about and distanced from the administration by stressing that the ADM and technology), the authority’s responsibilities, ‘average citizen’ and ‘the public’ do not have to know too and notifying citizens about automation (what the adminis- much. Although the ‘average citizen’ is a generalization, it tration must tell), all of them being related to administrative serves to legitimize ADM, as the following quote suggests: law provisions. Additionally, non-legal topics, such as user interface solutions and technological characteristics of The requirement for transparency in the use of automatic information systems, were discussed (what technology decision-making is particularly welcome. A clear descrip- does and for whom). Regarding technology, the statements tion of the operation of the systems and notification of auto- addressed the general aims and risks of ADM and AI use. In matic decision-making is likely to increase trust in the 2021 statements, the focus shifted towards the descrip- automatic decision-making. It is essential that the informa- tion by the public authorities (how the administration must tion is accessible and easy for the public to understand. say they are using ADM). (Technology Industries Association in Finland, 2020) As a result of cyclical reading of the data, we formed four imaginaries: 1) understandable, 2) self-monitoring/autono- Although the previous comment suggests that automation is mous, 3) adaptive, and 4) responsible administration. As ima- positive and public communication about it enhances the trust- ginaries are multiple, overlapping, and contested, we worthiness of automation, the limits of what the public need to Esko and Koulu 7 Figure 1. Timeline of the law reform process and data. know are drawn. The statements stressed that the authorities the actual decision-making processes. Additionally, pro- were not required to provide information that is particularly tecting the code and concealing it from citizens proves to technical and hard to understand. In addition to being incom- be a paradox. The code is protected from citizens, who prehensible, the commentators argued, program codes are would not in fact understand it in the first place. Although trade secrets. Thus, managing risk through what is made understanding is not expected of the average citizen, he/ public becomes essential. Too much publicity will result in she should be able to assess the validity of an ADM the misuse of ADM systems, eventually impeding the work process and decisions based on general descriptions. of public authorities. The same citizens who did not under- Assessment requires skills to scrutinize complex processes stand the code were feared to abuse and manipulate the state with minimum knowledge. The following quote reveals that if given access to the source code: the issue is not physical access to technology but rather the skills needed to assess the decisions: Disclosure of a program code reveals the technologies, implementations, and potential misconduct controls used The description [of how automated decisions are made] in broader cases. Disclosure of this technological back- should be accurate and easy to understand. The subject of ground increases the realization of various security risks, automatic decision-making must be able to assess, because if the potential harm doer is familiar with the tech- through the description, whether the decision-making nologies used their vulnerabilities are easy to find. Instead process and the final decision have been in accordance of publishing a program code, it would be sensible to with the law. (Association of Unemployment Insurance limit the published part to, for example, a logical model Funds, 2020) of the operation of the software or a description of the process or some other higher-level description. These are Drawing a line between understandable (public) infor- easier for citizens to understand and do not involve the dis- mation and concealed (private) code is not trivial. In the closure of potentially confidential information. (The Social 2021 consultation, the issue of publicity was specified as Insurance Institution of Finland, 2020) a question of whether citizens should be given the name of an official for additional information. Most commenta- As this excerpt shows, code functions as a line of distinc- tors took the stand that the authorities should provide infor- tion: it separates and defines what is understandable knowl- mation on the decision when needed. However, many did edge. However, the commentators did not mention the not consider it important to specify an actual person to understandability of administrative processes, proposing provide that information, partly because the decision itself that complexity is only related to technology. We suggest was automated. An actual person would be unnecessary if that not discussing the decision-making processes omits the authorities informed the citizen about the automation important questions on the organizational structures in and provided a description of the process. Again, it was which automation is used, as well as the complexities of repeated that “the algorithms themselves are not very 8 Big Data & Society Table 1. Forming the imaginaries. General categories (based on reduced expressions) Main thematic clusters Imaginary Knowing and understanding what is required for Understanding the decision-making process Understandable decision-making administration Checking information Publicity and openness Publicity and transparency Risk of misusing the systems Protecting code from misuse Publishing source code Average citizen ignorant about the code Average citizen does not understand the code Description of ADM is enough Administration needing automation Efficiency guaranteeing better services Autonomous ADM is a prerequisite for administrative reform administration Public administration is a competitive advantage Saving resources in administration ADM is beneficial for administration and ADM benefits are rational citizens ADM aiming at secure processes Citizens wanting better services Self-monitoring of systems and productivity Monitoring within public organizations Customer-orientation at the systems level Customers giving feedback Rethinking administrative functions across organizations Changing administration and practices Adaptive administration Changing administration to ensure citizens’ legal protection Administration being aware of the qualities of ICT systems Designing good ICT systems and software Administration seeking to be legitimate and flexible Customers having challenges Special needs Responsible Not understanding the service system administration Without access or skills to use the system Vulnerability of customers imposing specific duty Vulnerability of people as a special duty for ADM posing the biggest risks to the vulnerable administration Heterogeneity of vulnerable groups’ needs and skills Designing and tailoring systems for specific groups of people informative for the average administration client and there- process-oriented and efficient due to automation. To fore do not need to be included in the description. A process achieve efficiency, public administration should be free to diagram or description of the automated decision-making utilize automation and monitor the systems internally as process could be informative.” (Universities Finland, 2021) this ensures the materialization of the benefits of automa- We suggest that the imaginary of understandable admin- tion. A lean and error-free digital public administration istration operates with generalizations that disconnect the ultimately benefits customers because ADM creates uni- citizen from the administration and, more importantly, formity. From this perspective, regulation limits an other- from technology. Public institutions are central for defining wise well-functioning administration and the use of what is understandable and informative for citizens. The technology. imaginary is strongly connected with transparency ideals To realize full potential, the commentators suggested and obligations, the core principles of good administration. that the authorities should not be left with control mechan- Compared with Rose et al.’s (2015) ideals, this imaginary isms that are too burdensome. Instead, as the excerpt below resembles the efficiency ideal, and we can speculate that shows, they should use self-monitoring and create uniform transparency is strongly connected to efficiency in the decision processes in which customers provide feedback Finnish context because transparency is thought to that helps the functioning of the administration: improve efficiency. Ex-post control emphasizes the organization’s own moni- toring at the system level, which must be reasonable in rela- Self-monitoring and autonomous administration tion to productivity. Suggested means, such as spot checks, The imaginary of self-monitoring and autonomous adminis- etc., are worth considering in further work. Regarding legal tration portrays a well-functioning administration that is protection, the means of redress must be customer-oriented, Esko and Koulu 9 Table 2. Imaginaries of public digital administration. Imaginary Citizen Technology Aim of automation Understandable administration Average citizen Complex Efficiency Self-monitoring and autonomous administration Customer Error-free, unproblematic Autonomy Adaptive administration Object Organization-dependent Flexibility and efficiency Responsible administration Vulnerable Risky Service, inclusion and the realization of fundamental rights must be ensured at outperforms error-prone human decision-making. The the system level. (Confederation of Finnish Industries, control of technology is best organized through existing 2020) mechanisms to avoid additional administrative burdens. The customer benefits when public administration decides We noted an argumentation pattern which stressed that on ADM use. In this sense, the imaginary of autonomous automation reduces errors made by humans, thus benefit- administration reflects the notion that legislation lags ting citizens who will receive on-time handling of their behind technological progress, although this notion is administrative matters. Thus, the statements portrayed based on an oversimplification of the reciprocal relationship ADM as a crucial element in providing stability as such between law and technology (Cohen, 2019; Hurlbut, 2015). decision-making produces reliable decisions even in diffi- Interestingly, this imaginary echoes two ideals of Rose et al. cult times: (2015), namely professionalism and efficiency, suggesting that a well-functioning public administration is a global competitive advantage. The benefits of automated decision-making are undeniable: it frees up human resources from routine tasks thus speed- ing up the processing of other applications. The automation Adaptive administration. In contrast to the previous imagin- of processing can also ensure the continuity of processing in aries, adaptive administration shifts the gaze to the admin- various crises, such as the corona pandemic. (Finance istrative practices that should be reconsidered and Finland, 2020) developed alongside of technology. Recognizing the diver- sity of current technological solutions in public organiza- The reliance on automation was repeated in both rounds tions, the commentators paid attention to the design of of consultation. Those favouring streamlined decision- information systems, their validation and testing. making processes, considered automation to be a prerequis- However, the commentators were concerned for interoper- ite for efficient administration: ability between technological solutions of different author- ities. The imaginary of adaptive administration connects the Legislation on automatic decision-making and an under- development of administrative practices alongside of tech- standing of the use of artificial intelligence in public admin- nology with the equality of citizens and legal certainty. istration are essential preconditions for administrative Adaptive administration acknowledges the increasing reform and more efficient operations. For citizens, automa- use of technology and stresses consistency of decision- tion means better services. For Finland, a smooth public making guided by cost-related discussion. However, com- administration is a competitive advantage when competing pared to the prior imaginaries, adaptive administration for the locations and experts of operations. (Technology sees a need to develop interorganizational systems for Industries Association in Finland, 2020) data exchange. Instead of assuming an opposition between technology and human actors, the commentators In 2021, the public pensions institution KEVA argued suggested crossing the boundaries between organizations against too limiting technology regulation, stating that “It that need to communicate with each other. Thus, the state- is also worth remembering that the clients of the adminis- ments emphazised that administrations need to develop tration have the right to have their case processed technologies that suit the practices within public without delay and the right to equal treatment. In this organizations: regard, automation and artificial intelligence can be very useful tools, meaning that the use of technology does not The situation shows the individual solutions of the various involve mere threats or risks (KEVA, 2021). authorities. The need for regulation is justified from the High-quality system design, regular monitoring, and point of view of legal certainty for citizens and for the correction of algorithms were argued to produce reliability development of information systems and the control of and ensured the legal protection of administrative custo- maintenance costs. As digitalization and automation mers. The imaginary of autonomous administration pictures increase, administrative functions should be re-examined future administration in which error-free technology rather than simply seeking to strengthen existing processes 10 Big Data & Society with new information systems. (Finnish National Agency only one to focus on citizens’ needs, suggesting a future for Education, 2020) where automation may introduce disadvantages. Automation is framed as potentially harmful and discriminating. We suggest this imaginary provides a situated understand- Responsible public administration has a specific duty to ing of technology within a wider system of public organiza- protect people in vulnerable positions, drawing attention to tions. Technological solutions and data are recognized as the constitutional right of non-discrimination and equality. interconnected data sets exchanged by authorities. The The imaginary problematizes the premises of technological imaginary is motivated by economic concerns that incom- design reflecting the discussions on administrative empathy, patible technological solutions can in fact “increase total as the imaginary focuses on human as the contact point for costs in situations where automated decision-making administrative processes (Ranchordas, 2021). seeks information from another organization’s system that Unlike prior imaginaries, the imaginary of responsible is not prepared for mass decisions” (Finnish National administration attributes responsibility to public authorities Agency for Education, 2020). However, these are seen as at the early phases of planning automation. The commenta- systems design issues without problematizing the lack of tors opposed technology optimism and efficiency, arguing citizen participation in the design. Designing secure infor- that these should not be justifications for automation: mation systems ensures legal security: The use of automated decision-making is generally justified The situation shows the individual solutions of the various by the need to save resources, speed up decision-making, authorities. The need for regulation is justified from the and seize the opportunities offered by technological devel- point of view of legal certainty for citizens and for the opment. In this regard, we state that the primary criterion for development of information systems and the control of the introduction of automatic decision-making should maintenance costs. As digitalization and automation always be to increase the legal certainty of decisions and increase, administrative functions should be re-examined to maintain the legal protection of citizens. If these legal rather than simply seeking to strengthen existing processes benefits might be jeopardized by automatic decision- with new information systems. (Digital and Population making, it should not be introduced. (The Central Data Services Agency, 2020) Organization of Finnish Trade Unions, 2020) Even though specific technologies were not categoric- The commentators also problematized the issue of under- ally rejected, limitations were discussed: “It could be justi- standable information challenging the usefulness of simple fied that, in well-considered situations, there would be no ADM descriptions. Instead of an average citizen, the com- impediment to administrative decisions by AI in cases mentators recognized the heterogeneity of vulnerable where the rights and freedoms of the individual would not groups, thus challenging understandable information as the be irreversible and easily remediable.” (Digital and prerequisite for automation. On the contrary, as the following Population Data Services Agency, 2020). The suggestion quote shows, the administration’s duty is to provide counsel- of AI use was repeated in 2021 although it was mostly con- ling in cases that might at first glance seem easy: nected to the needs of public organizations, not citizens. The demarcation between AI and rule-based technologies If the language and administrative culture are foreign, the is important for the rule of law, as AI would only be suitable customer may not receive the benefits or services to in assisting decision-making. which he or she is entitled. This may be the case even The imaginary suggests an adaptive administration that though the matter is not particularly difficult to understand develops its internal practices in an environment of inter- […] It may be that the client has been asked to make an connected public organizations and information systems. application, but the client has not actually understood The future focus is on the work practices of civil servants what is required of him, for example due to a lack of lan- and not on technology or citizens’ needs. Compared to guage skills. (The Central Union for Child Welfare, 2020) the ideals of Rose et al. (2015), the imaginary has similar- ities to the professionalism ideal. Also, the imaginary Here, technological risks interconnect with the adminis- takes up the design processes but does not problematize trative practices unfamiliar to people who use public ser- them much further. vices. Technology use increases risks by removing the human element that is considered important for vulnerable groups. Responsible administration has a specific duty to Responsible administration advise their clients and consider their individual circum- The imaginary of responsible administration addresses the stances, skills, and resources: diversity of people’s skills, competencies, and hindrances. This ‘weaker’ imaginary is based on a small number of state- There are many clients of the Finnish Immigration Service ments by civil advocacy organizations. However, it is the for whom both the authority’s duty to advise and its duty to Esko and Koulu 11 investigate are emphasized, for example due to a lack of our findings, we argue that good digital administration is language skills and the unfamiliar nature of the Finnish defined from the perspective of public authorities and the system. There are also a particularly large number of vul- Administrative Procedure Act reform serves primarily to nerable customers […] The risks of automatic decision- legitimize existing automation practices instead of truly making in terms of legal certainty and equal treatment are renegotiating digital futures. The absence of citizens’ per- highlighted for the most vulnerable. (The Finnish Refugee spectives raises the question whether the relationship Advice Centre, 2020) between public power and citizens is becoming a one-way street despite citizen engagement ideals (Rose Although some acknowledged that ADM may bring et al., 2015). Although all imaginaries address what citizens about benefits through tailored solutions, the systems can need to know and how public authorities must inform them profile people and user groups, making the relationship about automation, the focus shifts to the formal descriptions between customers and public power particularly fragile. of the public organizations. Therefore, development was paramount: It is important The first three imaginaries assume an institutional that different user groups are involved in the design, devel- approach, while the last imaginary considers digital public opment, and testing of systems so that the system to be power from the perspective of vulnerable groups. The deployed is not based on erroneous assumptions about fourth imaginary provides a counter-imaginary to the the needs of end users (Finnish Disability Forum, 2020). others, which are dominated by technological optimism Framing ADM as risky raises issues of inclusion and operate on the ideals of traditional bureaucracy and because technological solutions may produce discrimin- new public management (Lepinkäinen and Malik, 2022; atory systems: Rose et al., 2015). Instead of renegotiating the relationship between public administration and citizens, the imaginaries Especially decision-making regarding social and health ser- rely on traditional ideals of effectiveness based on vices or benefits often involves a complex consideration of automation. the individual circumstances of a person that cannot be out- As a result, ADM systems appear to be unproblematic to sourced to a machine. The state is a community of people, citizens, who are mostly missing from the picture. This is and the exercise of state power must also give priority to paradoxically associated with the notion of the average human activity in whichapersoninneedofstate helpor citizen. Prior studies have pointed towards similar reduc- support is encountered by another person if he or she wishes. tions of citizens to ‘users’ (Broomfield and Reutter, (Finnish Federation for Social Affairs and Health, 2020) 2022). By sketching the contours of the average citizen, imaginaries render technology complex but unproblematic, Similar concerns were voiced in 2021 when the com- as its use is overseen by public authorities. When citizens mentators observed that human interaction was especially are recognized, they are portrayed as disadvantaged important for people in a vulnerable position, for whom groups without the skills or resources to defend themselves. administrative processes in general and digital transac- Simply put, problems emerge only for those individuals tions in particular are challenging (Finnish Federation for who need special assistance. For the average citizen, tech- Social Affairs and Health, 2021). nology does not impose difficulties, although, in the worst- Whereas self-monitoring administration pictures case scenario, citizens might abuse the system. Therefore, humans as error-prone, the imaginary of responsible admin- imaginaries produce an ambivalent notion of the citizen. istration considers humans central to ensuring inclusion. This notion is a dichotomous categorization of the The imaginary highlights the service principle of good average citizen and the vulnerable citizen, creating a dis- administration in which public organizations are obligated tance between them, technology, and administration. to help citizens. Combined with vulnerability, the imagin- Simultaneously, fear of citizens gaming the system forms ary problematizes technological design, which together a tension between technology and humans, as codes need materialize possible discriminatory practices. The involve- to be protected from those aiming to misuse them. ment of users in the system’s design is suggested as a solu- tion. Although the imaginary highlights the service ideal Contextualizing imaginaries of law, technology, and (Rose et al., 2015), it does not discuss engagement but society rather the specific needs of vulnerable groups that require supportive human contact. After our analysis, the ADM reform proceeded from the pre-parliamentary phase to the government’s proposal, which was given to the Parliament in September 2022 Discussion (145/2022 vp). The proposal initiates the parliamentary We have asked how is good digital administration envi- process and introduces new sections to existing administra- sioned and what are the problems ADM presents for the tive legislation. The proposal provides a vantage point for relationship between public power and citizens? Based on examining how the imaginaries have materialized during 12 Big Data & Society the law-making process. Although the wordings may mechanisms. The proposal includes provisions on the change during the process, government proposals have development and deployment process and grants an over- descriptive as well as prescriptive authority as legal sight board the authority to make inspections and require sources according to legal doctrine. amendments when documentation is insufficient. The adap- As stated, imaginaries differ in how they portray digital- tive administration imaginary emphasizes equality and legal ization efforts that require regulatory action and concerning certainty but focuses on interoperability between public which legal principles they prioritize. The proposal includes institutions. The interoperability perspective can be found a description of the policy problem and interpretation guid- in the provisions that harmonize development and deploy- ance through which we can examine which imaginaries ment practices and new oversight functions. have become decisive and how tensions between various Finally, the imaginary of responsible administration is ideals have been reconciled. The proposal describes the the only one that is detached from the institutional perspec- need to establish a legal foundation in accordance with tive and recognizes the diversity of citizens, shifting the Article 22 of the GDPR to allow automated decisions in focus to service provision. Unfortunately, this diversity is public administration. Rather than initiating a political mostly missing in the government proposal. The proposal debate about the acceptable limits of digital public adminis- recognizes certain vulnerable groups, such as the elderly tration, the proposal aims to provide legitimacy for and children, people who do not speak the official lan- the current automation practices instead of questioning guages, and people with disabilities. Their rights and them. One could argue that this stance reflects, if not needs are argued to be improved by automation, as automa- techno-optimism, then at least a neutral understanding tion, according to the societal impact assessment, decreases that automation is a natural development in administration. the likelihood of human error and improves overall equal- At the very least, the naturalized acceptance of automation ity. Hence, the critical viewpoints of the imaginary have stands in contrast with the EU’s ongoing regulatory evaporated. initiatives. What is lacking in the proposal? What are the silences The objectives are complemented by the more detailed and problematizations that are left outside its scope? It justifications of new sections, as these seek to safeguard con- seems that pressure was high to legitimize already existing stitutional rights and the rule of law through provisions for automation. We can speculate that the need to legalize the appropriateness, transparency, accountability, and liability. status quo limited the potential for discussing alternatives. The legal basis is established for rule-based ADM The ideals of the last imaginary could have provided an systems, but AI systems are excluded from the scope – alternative, an emphasis on provision of public services, and thus also from use. Transparency obligations include the diversity of citizens, and detachment from the techno- notifying citizens about automation. Accountability and logical focus. Instead, the proposal perceives automation control are provided by provisions on documentation and to be relatively unambiguous and as something that testing, quality control, and oversight, which are performed improves legal protection by shortening the processing at the time of deployment. time. The social impacts of automation or the new ADM All the imaginaries can be found in the proposal, regulation are not assessed. A stronger focus on developing although some of them more strongly than others. The public administration and the welfare society could them- understandable administration imaginary has become the selves have provided a different view of the advantages most persuasive in the proposal, as the ideals of transpar- and disadvantages of automation. ency and publicity are strongly present in the formulations. Given the strong focus on the legitimation of existing The imaginary is materialized in the obligations to make an automation, it remains to be seen whether the unproblem- official and public administrative decision about ADM atic nature of technology prevails in the upcoming parlia- deployment to an oversight body and to inform citizens mentary debate. If this is the case, we fear that the about the automated handling of their case. If the proposal’s opportunity to discuss the relationship between public formulation is accepted, the citizen’s right to be informed power and citizen has been missed. At the same time, it requires that there should be a reference that the individual seems that the legal policy debate on digitalization threatens decision was produced automatically, as well as informa- to lead to a one-way exercise of power in which citizens tion about where the public institution’s deployment deci- cannot participate. Despite the visions of participatory sion can be found. The public institution is also required design and support for the digitalization of public services, to publish the deployment decision on its website. citizens continue to be the object of digital power and are In contrast, a less explicit role is given to the self- not an active party in the relationship. Finally, the ADM monitoring and autonomous administration imaginary, reform is a legal practice that operates in the language of which emphasizes that regulation hinders innovation. The law, which is tied to key legal markers, i.e., the limitations narrative can be found in the overall logic, which lacks cri- and fundamental rights found in legislation. Therefore, ticisms of increasing automation. Yet the autonomy of indi- these legal markers determine the debate as legal principles vidual public institutions is limited through oversight are binding and officials need to fulfil them or face Esko and Koulu 13 sanctions. The added value of imaginaries is that they make it draws attention to the fragmented development of automa- it possible to look at this discussion from the outside and tion ‘in the shadow of the law’. For future study, we suggest consider the strong points without being bound to the law. interdisciplinary work on law in the making that does not take for granted unproblematic and naturalized assumptions about digitalization and thus opens new spaces for critical Conclusions perspectives, particularly those of citizens. We shall now draw three conclusions and discuss the limita- tions of our study. First, the ADM reform is pending in Declaration of conflicting interests Parliament, which is the venue for political debate on citi- The second author gave statements in the consultation process. zens’ as well as the administration’s needs. However, the These were omitted from the data and analysis. The analysis was pre-parliamentary phase has eradicated problematic view- carried out by the first author only. points, removing citizens from the picture. It remains to be seen if these perspectives will re-emerge in the parliamen- Funding tary proceedings. Second, the imaginaries render technology The author(s) disclosed receipt of the following financial support unproblematic, which is in direct contrast to the reform’s for the research, authorship, and/or publication of this article: origins, initiated by the observed problems of automation The authors have received financial support for the research and the lack of legal foundation for current automation prac- from the Strategic Research Council at the Academy of Finland, tices. Arguably, such a lack of problematization is inherent grant numbers 335442 and 341434. in all legislative action and reflects law as a legitimizing social force. This non-problematization of ADM, however, ORCID iD is particularly worrying considering the specifics of the Terhi Esko https://orcid.org/0000-0003-2387-079X Finnish context, i.e., established tradition and the hegemonic discourse that emphasizes the inevitability of digitalization. Notes These concerns are also relevant in the context of European technology regulation. Third, the lack of problematization 1. https://valtioneuvosto.fi/hanke?tunnus=OM021:00/2020. This service includes all documentation, the timeline, and the pro- makes it difficult if not impossible to raise sceptical view- ceeding of the law reform. points later. 2. lausuntopalvelu.fi is an online service for collecting consulta- Our contribution to sociotechnical imaginaries is analys- tions regarding law drafting. The service was the primary ing the context of law-drafting, which has not received channel for the Ministry of Justice to collect statements. The much attention in prior literature focused on media texts statements can be retrieved in several formats (Word, Pdf, (Natale and Ballatore, 2020; Scott Hansen, 2022) and Excel). policy analyses (Tidwell and Tidwell, 2018; Tupasela et al. 2020). 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Journal
Big Data & Society – SAGE
Published: Jan 1, 2023
Keywords: Automated decision-making; socio-legal studies; relationship between citizens and public authorities; sociotechnical imaginaries; law reform; public administration