"The dematerialization of procedures and relations between the public and the administration does not only consist in a "prosaic" change of medium. Indeed, the technological transition is not neutral, and participates in the transformation of the relationship itself. In access to public services, it results in the creation, de facto, of a new form of conditionality: digital conditionality. This constitutes an obstacle to the laws of public service and calls for a rethinking of digital mediation.The Observatoire de l'éthique publique (OEP) dedicates a well-documented white paper to the new vulnerabilities caused by the development of digital administration. The originality of the White Paper " Digitization of public service: For an inclusive digital ethics ", is based on the combination of a sociological approach and a legal approach.
Its authors, two doctoral students in public law and Caroline Lequesne-Roth, a senior lecturer in public law, are more specifically interested in the effects of the dematerialization of public services on the vulnerable public.
Based on a series of interviews with social workers and the public concerned, in the wake of the opinions of the Defender of Rights and the work of researchers such as Pierre Mazet, François Sorin and Pascal Plantard, they conclude that " the shock of the digital transition is having a negative, immediate and persistent impact on users, the most vulnerable of whom are unable to access their rights. In turn, the phenomenon also has worrying consequences for the implementation of social action, as the conditions of practice and training of its actors have not been optimally supported to cope with these changes.
The authors first trace the digital evolution of administrations over the last thirty years. They distinguish three periods.
- The first decade (1998-2007), launched by the adoption of the "Government Action Program for the Information Society" (PAGSI) in 1998, with in particular the putting of administrative forms online, the creation of the service-public.fr portal, online tax payment.
- The second decade, which began in 2008, saw the dematerialization of public services and the construction of a true "e-administration. It enabled 76% of the administrative procedures "most expected by users" to be dematerialized (in particular requests for identity cards). The dematerialization process has taken another step forward with the introduction of the FranceConnect service.
- In October 2017, the multi-year government program "Public Action 2022" aims to make the 250 administrative procedures most frequently used by the French accessible by 2022. "Notably, the Government has launched in parallel with its dematerialization policy - and for the first time - a National Plan for an inclusive digital aiming to detect the public in a situation of digital vulnerability, accompany them first in their procedures, and then guide them to make them autonomous."
The digital conditionality of access to public service
According to the authors of the White Paper, " the dematerialization of procedures and relations between the public and the administration is not just a 'prosaic' change of medium: the technological transition is part of the transformation of the relationship itself. In access to public services, it translates into the creation, de facto, of a new form of conditionality: digital conditionality," defined by sociologist Pierre Mazet, as the addition to legal and regulatory conditions of "conditionalities outside the law itself, but which nevertheless constitute a sine qua non of access to rights."This digital conditionality of access undermines public service laws, which are also insufficient to guarantee effective protection against technological vulnerability "Technological vulnerabilities
Technological vulnerability describes the situation in which an individual is unable to act and communicate because of technological disabilities. "While technological vulnerability is undeniably material - that is, it is based primarily on a lack of access to equipment and an Internet connection ... the issue of digital competence is inevitably superimposed on that of means."The issue of skills requires a granular approach, as the authors of the White Paper point out. Following the example of the Emmaus Connect association, they distinguish three categories of individuals among those in difficulty:
- those who " for psychological, psychiatric or intellectual reasons will not be able to be autonomous and capable of acquiring digital skills ";
- those who "have difficulty taking steps, but will be able to acquire skills", and are partially independent;
- those who, finally, " have basic digital skills, but can acquire, with some start-up support and training, advanced skills ".
Référence :
Insufficient protection against technological vulnerabilities
The main contribution of the White Paper lies in the legal analysis of this new digital conditionality that weighs on the most vulnerable: to what extent can it constitute an attack on the principles of equality and continuity of public service?" In terms of public service, the principle of equality has a double meaning: it aims to guarantee equal access and equal treatment of users. This principle, which has constitutional value, is difficult to reconcile with digital conditionality," the authors point out. "Indeed, it creates a rupture between users who are able to ensure the "obligation of connectivity" and those who cannot. The technologically vulnerable find themselves excluded and deprived of effective access to certain public services.
The White Paper mentions the case of people receiving RSA, who are dependent on declarations that can only be made online on the platform of the Caisse d'allocation familiale.
If " dematerialization constitutes, in some respects, an additional guarantee of the continuity of public service " (by making it possible to carry out procedures in any place and at any time), it carries, however, in counterpart, " a technical complexity of the administrative procedures and a technological dependence, likely to create new ruptures ".
Following the Defender of Rights, the authors of the White Paper consider the case of foreign nationals. " The main problem encountered by these persons is related to the online appointment process, to which a growing number of prefects have decided to make certain procedures related to the residence of foreigners subject. When the time slots open for booking are saturated, it is no longer possible to make an appointment, the persons concerned are unable to complete the steps necessary to file a first application or an application for renewal of their residence permit, and they thus remain in a precarious, even irregular, situation.
The difficulties resulting from the dematerialization of administrative procedures have led users and associations for the defense of rights to challenge the legality of this new method of access to public services. The authors accompany their demonstration with a review of administrative jurisprudence.
- In a ruling dated November 27, 2019, the Council of State took the first step by questioning the requirement to refer cases to prefectural services electronically.
- The Rouen administrative court took a further step in February 2021⁷⁴, ruling that a prefectural order requiring applications for certain categories of residence permits to be filed by paperless means was illegal.
The White Paper also looks in detail at disputes relating to the time taken to process certain applications, which have been considerably lengthened due to "virtual queues":
The dematerialization of the procedures for issuing documents (national identity card, passport, driving license, registration certificate) as part of the "new generation prefecture" plan (PPNG) in 2017. The malfunctions in the issuance of documents have led to numerous referrals to the Défenseur des Droits.
Although the implementation of the New Generation Prefecture Plan (PPNG) "has considerably improved the processing and issuance of these permits", there are still problems with the procedures for residence permits. To apply for a residence permit, foreign nationals must now go to the prefecture, by appointment. Since 2012, a series of circulars has made it compulsory to make an appointment online (...) The time it takes to obtain an appointment via the prefecture's digital platform - which should be a simple and quick formality - is added to the time it takes to process applications and to any requests for additional documents. In these situations, it is not uncommon for it to take several years to obtain a decision from the prefecture. People then risk being in an irregular situation on French territory, but also losing the benefit of their social rights, despite real attempts to make an appointment.
The authors of the White Paper also review recent jurisprudence concerning the excessive length of time it takes to make an appointment at the prefecture.
Internet access, a fundamental right in the making
The White Paper devotes a long development to the "jurisprudential procrastination" concerning the consecration of the right of access to the Internet.- This was recognized in 2009 by the Council in the name of freedom of expression, on the basis of Article 11 of the Declaration of the Rights of Man and of the Citizen: "in view of the widespread development of online public communication services and the importance of these services for participation in democratic life and the expression of ideas and opinions, this right [freedom of expression] implies freedom of access to these services. With this decision, the constitutional judges had recognized citizens' access to the Internet as a way of exercising freedom of expression.
- The European Court of Human Rights adopted a similar reasoning: if it admits that "access to the Internet is more and more understood as a right" indispensable, even obligatory, in our society, it does not recognize it as a fundamental value and limits, also, its foundations to the sole freedom of expression.
After recalling the abortion of several attempts to enshrine the right of access to the Internet (including the proposed inclusion of a Digital Charter in the block of constitutionality in 2018), the authors of the White Paper argue for an autonomous right of access in the service of the protection of digital vulnerability: "access to the network constitutes a right today, indisputably, a "pivot" of access and exercise to many other fundamental or civil rights, such as freedom of enterprise, the right to information and public participation, access to law, protection of character data."
The authors recall, however, the integration in 2020 of the high-speed Internet access service among the universal electronic communications services (which now allows any end user to have access at a given location, at an affordable rate), the "France Très Haut Débit" program, the deployment of public places offering free access to the Internet (France Services houses), and the initiatives of public persons and associations offering free access to the Internet.
Digital mediation, a new mission for social workers
The question of digital conditionality inevitably echoes that of mediation.The White Paper examines the role of social workers who have become, over the years, digital mediators: the elimination of physical counters and the reduction in the number of reception agents have made them "the first line of defence against the non-recourse to social rights linked to dematerialization, to such an extent that they can be described, in practice, as digital mediators of the emergency".
This is a new mission for social workers that is " more about professional practice than a specific mandate.
The White Paper makes a series of observations:
- If digital mediation is partly based on users' demand for digital help, it is still the result of an often implicit delegation by some administrations, without any compensation.
- This transfer of missions to social workers has not, however, resulted in a proportional increase in the number of staff
- The significant increase in their workload was not accompanied by material and financial support.
- In addition to the technical skills that social workers must acquire, they must also take into consideration new legal issues regarding the protection of personal data.
- the time dedicated to digital mediation is necessarily deducted from the time dedicated to the social support of the beneficiary. This situation is variously appreciated by professionals, and gives rise to divergent practices.
- As digital mediation is not explicitly part of the missions of social workers, many professionals wonder about the opportunity and the scope of their intervention.
Digital inclusion and co-construction of digital public services
The White Paper proposes an extensive approach to digital inclusion: regretting that it is essentially considered from the point of view of individual skills and access to tools, they believe that the development of ergonomic public sites and platforms is just as essential a component of this inclusion. "In this respect, it seems essential to conceive digital inclusion in an extensive way, as an integral part of social inclusion and user "empowerment". This implies that users can effectively exercise their role as "active and autonomous citizens ".In the wake of the Defender of Rights, who judged in 2019 that digital inclusion is hindered "by inadequate site design and deployment," the authors echo the social workers they interviewed:
- "Public websites require a particularly long time to learn how to use them for the people they support, who have difficulty navigating them in a fully autonomous manner...
- These difficulties are further compounded by the heterogeneity of public websites, which further divides the training in online procedures (each site requiring specific learning).
- The principle of accessibility by design of public sites and platforms thus appears to be the essential prerequisite for inclusive dematerialization and must therefore be one of the priorities of public actors when designing them.
- by mobilizing the necessary skills "to ensure the adequacy between the proposed service and the legitimate expectation of the user" (as is the case in the program "Entrepreneur of general interest" (EIG) and with the implementation of the Commando UX device by the Interministerial Directorate of the Numerical-Dinum)
- or by the direct integration of users, "invited to participate in the design of the platforms" (as Pôle Emploi and the Caf have undertaken to improve the ergonomics of their respective platforms).
Ten recommendations
The White Paper leads to a series of recommendations, unevenly detailed, organized around three axes:Strengthening accessibility to public service: protecting technological vulnerability
- Strengthen the diagnosis of digital vulnerabilities, taking into account the context of each individual situation
- Preserve the plurality of the modalities of access to the public service by imposing clauses to protect vulnerable users
- Recognize a fundamental right to access the Internet
- Guarantee free numbers to reach administrations
Rethinking the administrative relationship: digital mediation
- Establish a digital mandate
- Recognize the social worker as a digital mediator
- Create departmental directories of support initiatives
Facilitating uses: public service platforms and co-design
- Adopt a single repository for public platforms and websites
- Involve all stakeholders and audiences in the design
- Improving the Caf platform
L'Public Ethics Observatory is a think-tank that aims to bring together public actors and researchers in order to contribute to the progress of transparency and ethics, both in the field of scientific knowledge and in the field of political practices. It aims to be a force for research, proposals, advice and awareness.