Public Services Lost in Digitalisation: Re-positioning Accountability

This is part of the blog series 'Preserving Public Values in The Automated State' edited by Malavika Raghavan, Alexandra Sinclair, Giulia Gentile and Orla Lynskey

Deirdre Curtin, Professor of European Law, European University Institute

Anna Morandini, PhD researcher, European University Institute

Digitalisation intensifies public-private cooperation in a manner that is often at the expense of core public values. From local schools to federal ministries, public entities enlist private companies to engage in the carrying out of their public tasks. Schools ask children to useGoogle Classroom, exposing them early on to the commercial gathering of data. Justice systems procure technological tools, such as for example the digitisation of money claims. The effect can be to worsen the rights and access to public services of some vulnerable or non-digitally connected citizens. States use private technologies such as AI dialect recognition in the management of migration, without ensuring adequate oversight to prevent malfunctioning. These cases may vary in nature from procurement to more informal arrangements, yet they all raise similar concerns about the loss or reduction in the centrality of public values. Public-private partnerships can help to digitalise public services, but unless carefully crafted they increase secrecy and limit responsibility. Individuals find themselves in the dark on the use and functioning of technological systems and without an oversight body that adequately responds to emerging issues. It is vital for public governance to ensure that any kind of cooperation with private actors does not undermine transparency and accountability. Our blog revisits these evergreen principles and investigates the specific challenges that arise in digitalisation. We highlight key foundational principles for any kind of public-private cooperation in order to avoid the loss of accountability in digitalisation.

Twin challenges for the twin principles of good governance

Digitalisation adds a double complexity to the headwinds that transparency and accountability always face. Complex arrangements of public-private cooperation alongside complex technologies, shielded by legal claims of secrecy, can effectively obscure decision-making. Transparency is essential for accountable and legitimate governance (Curtin & Senden 2011).

By bringing information to light, it reduces information asymmetries and enables oversight by journalists, NGOs, scholars, and ombudspersons. In digitalisation, notions of business and trade secrets conceal the technology that underlies public service provision. Yet complex technologies require proactive information to dissolve the opacity of algorithmic systems and enable individuals to understand procedures and render their rights operational. Rights-violating or inadequate provision of a public service are subject to public accountability in order to guarantee that actors publicly answer for their conduct in the public interest (Bovens et al 2014). While often framed as a virtue, accountability can provide an analytical tool to describe the powers that accountability fora have regarding the obtention of information, a dialogue with the actors being held to account, and the passing of a judgement and sanction or consequence (Bovens 2007).

Public accountability can ensure that wrong decisions on money claims or dialect recognition are reversed or that students can benefit from the use of digital tools without their fundamental rights protection being reduced. Accountability processes can highlight flaws in algorithmic systems, enable remedies and systemic improvements. They require however public awareness that private companies are involved in providing a specific public service as well as their ability to identify those responsible for a concrete decision and to challenge their underlying choices.

Building accountable public-private partnerships for digitalisation

When private actors digitalise public services in schools, courtrooms, and border facilities, they do so based on the decision of a public entity – whether through formal public procurement or an instruction to sign children up for Google Classroom. The public actor must ensure the preservation of public values, otherwise any arrangement constitutes an irrevocable loss for citizens and rule of law from the outset. It can thus only enlist private actors that guarantee transparent and accountable digitalisation. Any decision to bring in a private technology provider should require imperatively that public values are preserved. A public project conceptualisation should facilitate discussion on the approach to digitising the specific services, including objectives and timeframe. It must consider potential impacts on individuals and the liberal democratic system, including information asymmetries and risks of dependency on a private actor. A private provider can only be selected if the public’s capacity for control and debate remains intact, which presupposes transparent, explainable, and accountable algorithmic systems.

Conclusion: New actors and evergreen principles

Private actors who want to participate in fulfilling public services must subject themselves to public accountability and its watchdogs. While this has been long acknowledged for cases of delegation, it cannot depend on the formal nature of the partnership. Where digitalisation diverts responsibilities away from government, transparency and accountability must irrevocably follow. In the close cooperation of private technology providers and public entities, third-party oversight is essential and cannot be resisted by privates’ trade secrets or IP rights. Public entities should guarantee that transparency and accountability remain afloat and vibrant in the rough seas of digitalisation. This includes ensuring that information is accessible for the public from the conceptualisation phase, that responsibilities are allocated clearly, and that oversight does not face insurmountable hurdles. Affected individuals and the broader public must be put in a position to debate technological systems and trigger improvements or, if risks outweigh benefits, termination. The peculiarities of a digitalisation project – such as public and private actors involved, the nature of their cooperation, or the type of technology – should not serve as a shield from public accountability. Any digitalisation of public services must safeguard core public values.