CC BY
4Legal Issues in the Digital Age. 2022. Vol. 3. No. 4. Вопросы права в цифровую эпоху. 2022. Т. 3. № 4. Research article
УДК: 342.34
DOI:10.17323/2713-2749.2022.4.88.105
E-Democracy: A Constitutional Dimension
EH Albina Slavovna Lolaeva
Gorskiy State Agrarian University, 37 Kirova Str., Vladikavkaz 362040, Russia, mirag.8184@yandex.ru, ORCID: 0000-0002-9021-7531
The paper is focused at the issues of e-democracy in Russia as an innovative form of democracy regarded from the constitutional dimension. The effects of IT penetration to change the appearance, content and methods of legal impact on the environment subject to change are discussed. Due to peculiarities unique to constitutional law and its exceptional role as the legal system backbone, digitization has a special effect on this form of regulation. The evidence in favour of the joint competence of the federal and regional authorities over the issues of information and IT technologies based on constitutional realities is presented. It is argued that e-democracy viewed from the constitutional dimension is above all subject to constitutional regulation. As an instrument of democratic rule politically based on the constitutional imperative of overall empowerment of the people, e-democracy is legitimately part and parcel of constitutional law relying on the relationships between democracy and popular sovereignty. Moreover, popular sovereignty, like other types of sovereignty such as the national sovereignty, is an extension of personal sovereignty as a set of inherent, inalienable human and civil rights and liberties safeguarded by the state. The rights including their digital expression make up a traditional and meaningful subject of constitutional regulation. These are primarily the rights to be exercised in whole or for the most part in terms of digital indicators defining the digital status of each person as predated by the constitutional principle of equality that means digital equality of access to IT technologies for all. These rights primarily embrace the constitutional right to information which is guaranteed to all and which includes the freedom to search for, receive, transmit, produce and disseminate information in any legitimate way (part 4 Article 29 of the Constitution of the Russian Federation). Along with constitutional law, e-democracy is subject to information law as a set of provisions governing social relationships in the sphere of information. It is stated that information law is based on constitutional premises characterizing the principles of Russia's constitutional system.
© Lolaeva A.S., 2022
This work is licensed under a Creative Commons Attribution 4.0 International License
Keywords
informatization, digitization, law, constitutional law, information law, electronic democracy.
For citation: Lolaeva A.S. (2022) E-Democracy: A Constitutional Dimension. Legal Issues in the Digital Age, vol.3, no. 4, pp. 88-105. DOI:10.17323/2713-2749. 2022.4.88.105
Background
The 21th century marks a large-scale penetration of publicly available ITC technologies which shape the digital society based on the interactive relationships between society, government and individuals. ITC technologies have crossed the national borders to become part and parcel of the vital functions of society.
Daniel Bell, US. sociologist, wrote in this regard: "The emergence of a new social order based on telecommunications will have a decisive importance for both economic and social life, knowledge generating methods and the nature of human labour in the coming century. The revolution in the organization and processing of information and knowledge where computers assume the pivotal role is unfolding along with the establishment of postindustrial society" [Bell D., 1988: 330].
Of the global trends characteristic of the modern historic period, researchers point at the emerging transition from the hierarchic principle of social (including public authority) relationships to the network principle and networking structures [Mamut L.S., 2005: 11].
Under the Okinawa Charter on the Global Information Society (2000), ITC technologies are a major factor which shapes the society of the 21th century. Their revolutionary impact changes people's way of life, education and work as well as the interactions between the government and civil society1.
The 2017-2030 Information Society Development Strategy for the Russian Federation approved by Presidential Decree No. 202 of 09 May 2017 qualifies the information society as the one where information and the extent of its availability and use radically affect the social, economic and cul-
1 Diplomaticheskiy vestnik. Moscow, 2000, no. 8, pp. 51-56.
tural conditions of life2. As the jurisprudence points out, the rapid growth of information, emergence of colossal data arrays and databases, intensive development and large-scale penetration of digital technologies into different spheres of social life with expansion into an ever growing number of domains and types of social interaction, activities of public and social institutions is a major development factor of modern society shaping a new "digital" reality [Khabrieva T.Ya., Chernogor N.N., 2019: 85].
Digitization permeates all aspects of social life including law which, being a universal regulator, cannot escape the effects of new digital processes penetrating the legal fabric and changing the appearance, content and methods of legal impact on the environment subject to change. Digital electronic technologies change the world around us and set new objectives to the authorities, society, individuals and their associations.
Basic Part
The digitization of law has a twofold impact on legal development. On the one hand, law becomes instrumental for digitization of the social environment as regards its economic, political, social, cultural, spiritual and other components by establishing legal standards for the use of digital technologies in support of legal regulation of information processes.
Informatization of law thus pursues the purpose of supporting the process of creating technological conditions for an optimal satisfaction of information needs in the areas of governance through efficient use of information resources based on innovative technologies.
Moreover, the legal impact has a global, overarching nature to penetrate and transform the whole range of social links subject to digitization. Law shapes the information infrastructure of society as a set of information objects, systems, sites and networks located within the national territory.
The 2017-2030 Information Society Development Strategy for Russia makes for the need to improve the regulation in respect of safe processing of information (including search, accumulation, analysis, use, preservation and dissemination) and application of new technologies in line with the
2 On the 2017-2030 Information Society Development Strategy for Russia: Presidential Decree No. 203 of 09 May 2017. Available at: URL: http://publication.pravo.gov.ru/Docu-ment/View/0001201705100002 (accessed: 12. 09. 2022)
level of technological development and public interests; ensure a balance between the timely introduction of new data processing technologies and the protection of individual rights including the right to personal and family privacy.
An extensive ITC penetration of socioeconomic sectors and public agencies has enabled an e-government to be established in Russia as an innovative form of governance, with widely used IT technologies ensuring of a new standard of speed and convenience of access to both public services and information on how well the public authorities perform.
On the other hand, law is subject to informatization feedback, only to affect the content, system, structure and forms of law enshrined in the provisions which legalize the social environment in its digital projection and blur the lines between private and public law thanks to the universal instrumentality. According to V.D. Zorkin, new law, "that of the second modernism, is emerging today as a regulator of economic, political and social relationships in the digital world of big data, robotics and artificial intelligence"3.
The digitization of law has resulted in crystallization of information law as a branch of the legal system focused on digital relationships incorporating the tools for digital interactions between social entities.
Moreover, both of the said processes are simultaneous, parallel, interrelated and essentially inseparable. Law cannot adequately regulate information processes unless it has the provisions characterizing modern telecom technologies adapted to the needs of network communications.
The digitization of law gives rise to new things subject to legal impact such as the digital information environment, data system, ITC network etc.
The digitization changes the range of entities with a legal capacity by adding new parties to digital relationships such as data owners, data system operators, website owners, hosting providers etc.
Legalization is pending for robots as parties to the information environment pretending to have a legal status [Gadzhiev G.A., Voinikanis E.A., 2018:
3 Zorkin V.D. Law in the digital world: considerations on the margins of Saint-Petersburg International Legal Forum // Rossiyskaya gazeta. 2018. No. 7578. Available at: URL: https://rg.ru/2018/05/29/zorkin-zadachagosudarstva-priznavat-i-zashchishchat-cifrovye-prava-grazhdan.html (accessed: 12.09.2022)
24-28]. As observed by some authors, the regulatory environment reveals the relationships "with a new digital entity — robot — to become, if not a legal personality, at least a party" [Khabrieva T.Ya., Chernogor N.N., 2019: 94].
According to E.V. Talapina, individuals as legal parties will establish virtual relationships via the Internet which do not always mimic the real ones. Virtual life has predictable and known from practice legal implications — or doesn't have any. In the virtual space, individuals often hide behind the so-called virtual personality or digital image, with pseudonyms (nicknames) disguising the real person. She writes: "It turns out that personal identification in the Internet is a multi-faceted problem likely to be related to various violations of the rights of a wide range of entities. It can be handled differently. One of the proposed options is to put up with the impossibility to identify a party in the Internet: technical means of identification can create a legal fiction or presume a person but cannot definitely identify a party to legal relationships" [Talapina E.V., 2018: 6-7].
Digital technologies will certainly complicate the identification of parties to legal relationships which is nonetheless mandatory and personalized. The issue can only be about the improvement of identification arrangements as a set of steps to establish and verify personal details. The legal identification of a party based on information contained in the memory matrix of legal provisions is always possible. Once a party is not identifiable in the Internet, it simply does not exist in the legal sense because law cannot be based on legal fictions or presumptions of a person, otherwise it will lose the regulatory power.
Digitization has an impact on the content and amount of rights to trigger the emergence of new provisions and institutions. Thus, under Federal Law No. 187-FZ of 2 July 2013 "On Amending Specific Regulations of the Russian Federation on the Protection of Intellectual Property Rights in ITC networks", the Civil Code of Russia (Chapter 6, Part 1) came to include provisions to introduce the category of digital rights to civil law.
While the Civil Code of Russia has a new section on computer information crime, that is Chapter 28, informatization aspects have required the Code of Administrative Offense, Chapter 13 to provide for an administrative liability for offenses in the area of communications and information.
A special impact of digitization on constitutional law is due to the unique nature of its effects and exclusive role as the legal system's integrator. Ac-
cording to A.A. Tedeev, the new ICT technologies exert an especially powerful influence on constitutional relationships [Tedeev A.A., 2016: 124].
Constitutional law finds in the information environment its own objects of impact to match its subject of regulating the political component of the governance relationships. Thus, constitutional law has come to regulate the digital political environment as an area of interactions between public authorities and the people.
As observed by N.S. Bondar, constitutional law has a special regulatory role to play — and the Constitutional Court to resolve essentially new controversies and conflicts in the digital information sphere — due to the very nature of the relevant relationships that are extremely complex and complicated as they combine public and private principles and affect the basic values of society and state, human and civil rights and liberties [Bondar N.S., 2019: 25-28].
As the law in general, constitutional law is related to informatization in two ways: on the one hand, it is embedding information processes into constitutional law and filling the information environment with constitutional provisions while, on the other hand, it is digitizing constitutional law as a branch and using digital components in the constitutional regulatory mechanisms.
The importance of constitutional law is noticeably growing with intensive digitization of the public sphere regulated primarily by constitutional law, and with progressive transition of political and legal phenomena to the digital dimension, new technological paradigm of digital communications and networking principle of governance relationships.
Digitization of constitutional relationships affects the state of constitutional studies designed to provide a theoretical insight into new constitutional realities in accordance with their purpose, objectives and methodologies. In this regard, S.A. Avakian points to need to identify the objectives of these studies and constitutional law in the context of digital technologies. "In this context, law as a whole and constitutional law should re-invent themselves in the new technological environment and the emerging relationships between people, between individuals and public authorities" [Avakian S.A., 2019: 23].
Digitization is affecting a set of definitions used in constitutional studies, with their vocabulary coming to incorporate the concepts such as elec-
tronic/digital democracy which is synonymic with cyberdemocracy, cloud democracy, network democracy and web democracy, only to require adequate scientific interpretation.
The digitization processes become constitutionally acknowledged to expand the set of categories of the principal law. According to VD. Zorkin, "digitization processes should be regulated by the Constitution of Russia as having the highest legal effect in the national legal system" [Zorkin V.D., 2018: 1].
A large-scale digitization of public relations has been reflected in the latest version of the Constitution (as amended on 14 March 2020) to include concepts such as "information technologies" and "digital data transaction" (para "j", "m", Article 71) that reflects the realities of the modern information environment.
The President of Russian Federation was the first to suggest adding to the Constitution a provision on the responsibility of the state for cyber security of individuals. At a meeting of the working group for draft amendments to the Constitutions he said that "this need has arisen because such regulation was virtually non-existent before while the development of information technologies is fraught with problems to be addressed". The President asked what and how the state could use to develop the economy through digital technologies, what personal data the state could disclose, to what extent these data could be made public in the information environment and with what implications for the individual involved. "This need in technological development — and big data cannot do without personal data — is paralleled, on the other hand, with the need to ensure personal security"4.
The "digital" constitutional vocabulary gives birth to a "digital constitution" as the expression of the digital information potential of the principal law positing constitutional institutions in their digital design. In this case, digital human and civil rights, e-voting, e-referendum, e-parliament, e-government, e-justice and e-municipality originating from the relevant constitutional provisions become such institutions of the digital constitution. For example, the constitutional status of the Federal Government cannot be adequately represented without its digital image in the e-govern-ment format.
4 Putin has ordered to implement digital transformation of Russia as fast as possible. Available at: https://www.cnews.ru/news/top/2020-12-04_putin_rasporyadilsya_v_ kratchajshie (accessed: 12.09.2022)
While not all constitutional provisions have a digital dimension, this does not prevent the objectification of the digital constitution and also of the economic constitution incorporating specifically economic constitutional provisions only. Far from absorbing the entire range of digital relationships, the digital constitution shapes their regulatory focus by establishing the principles of information law. As was observed by S.M. Shakhray, the "digital constitution" could and should become a launching pad, matrix for the emergence of digital society rights as it is capable of providing the necessary brickwork for agreement, creative impetus and effective mechanisms for the establishment of a new social order in a new reality of cyber space. This does not mean the development of a parallel constitution written in a programming language or a digital phenomenon created through the use of modern computer technologies. It is about the principal law of information society whose qualities will change all basic institutions of the governance system as well as of constitutional law. "In this case, the word combination digital constitution should be understood as a new and unique phenomenon of law" [Shakhray S.M., 2018: 1076].
In its current wording, the Constitution refers ITC technologies, security of persons, society and state in the use of these technologies, as well as digital data transactions to the competence of the Russian Federation (para "j" and "m", Article 71), that is, exclusively to the federal competence, something which does not quite match the reality of the vertical distribution of powers. In practice, the constituent territories engage in both legislative and enforcement activities related to IT technologies. They are quite independent in handling multiple issues related to the development and support of regional data systems and the access to regional information resources governed by regional law. Thus, the constituent territories of the Russian Federation will independently develop IT technologies, something that the federal legislator has never objected against.
In view of the above, it necessary to refer the issues of data and IT technologies covered by the Constitution to the joint competence sphere of the Russian Federation and its constituent territories.
Because of the role and importance of informatization for the exercise of constitutional processes, organization of governance, development of democratic institutions of law in Russia, it is fair to speak about the information basis of the Russian constitutional system as a set of provisions which, along with the political, socio-economic and ideological framework, is a
representation of the information nature of the Russian society and state, constitutional value of information and personal digital status.
In its constitutional dimension, e-democracy is subject, first and foremost, to constitutional regulation. As instrumental expression of democracy as a political process based on the constitutional imperative of popular rule (part 1, Article 3 of the Constitution), e-democracy makes up a legitimate subject of constitutional law based on the relationships between democracy and government by the people. As Ya. V. Antonov points out, electronic democracy like e-voting originates from the constitutional ideas of popular rule and election — in particular, from the idea of popular rule directly exercised by the people [Antonov Ya. V., 2016: 117-125].
Since all other legal relationships grow from those of popular rule, the role of constitutional law is to be the leading, basic branch supporting the legal system as a whole.
It should however be borne in mind that popular sovereignty like other types of sovereignty — national, state etc. — is based on personal sovereignty as a set of inherent, inalienable human and civil rights and liberties safeguarded by the state. The rights, including their digital expression, make up a traditional and meaningful object of constitutional regulation. They assume above all the rights exercised in whole or for the most part in terms of digital indicators defining the digital status of each person as predated by the constitutional principle of equality which means digital equality of access to IT technologies for all.
These rights assume, first and foremost, the universal constitutional right to information which includes the freedom to search for, obtain, transmit, produce and disseminate information in any legitimate way (part 4, Article 29 of the Constitution of the Russian Federation). The right to information means that public and local government agencies and their officers have a constitutional obligation to give everyone an opportunity to review the documents and other materials directly related to his or her rights and liberties (part 2, Article 24).
The constitutional right to information is followed by the constitutional right to reliable information on the environmental situation (Article 42).
The right to information is related to the constitutional freedom of thought and speech (part 1, Article 29) which historically makes it meaningful [Travnikov N.O., 2016: 46].
The rights to digital information include the right to participate in affairs of the state both directly and by delegation (part 1, Article 32, Russian Constitution) whose implementation assumes an open and transparent government, opportunity for free access to information on the activities of government agencies and their officials.
The principle of transparent government is enshrined, in particular, in part 2, Article 100 of the Constitution which provides for open meetings of the Russian Parliament.
Direct participation in affairs of the state is embodied in the digital resource "Russian public initiative" as an expression of web democracy that assumes voting for public proposals to be submitted by individuals as approved by the Presidential Decree "On the Guidelines for Improvement of the Governance System" of 7 May 20125.
The rights to information also include the right to refer in person or submit individual/collective petitions to public authorities and local governments (Article 33, Russian Constitution) including in the electronic form. Under Federal Law No. 59-FZ of 02.05.2006 "On the Procedure for Processing Petitions in the Russian Federation", petitions can be filed with any public authority (local government) or official as an e-document.
The constitutional rights also include the right to elect and be elected to a public (local government) office as well as the right to participate in a referendum (part 2, Article 32 of the Russian Constitution) are increasingly exercised by way of e-voting. A reflection of this trend is Federal Law No. 67-FZ of 12 June 2002 "On the Principal Guarantees of the Right to Elect and Participate in Referendum" as amended on 14 March 20226 which provides for optional e-voting at elections and referendums where the relevant election/referendum commission may elect to hold remote e-voting (Article 64.1). This principle was used in the mechanism of all-Russia voting to approve the amendments to the Constitution on 1 July 2020 which envisaged e-voting as a form of referendum.
Today the exercise of all constitutional rights and liberties (not only related to information) envisages the use of e-procedures whose scope is ever
5 Collected Laws of Russia. 2012. No. 19. Art. 2338.
6 Federal Law No. 67-FZ of 12 June 2002 (as amended on 14.03.2022) "On the Principal Guarantees of the Right to Elect and Participate in Referendum". Ibid. 2002. No. 24. Art. 2253.
extending. Thus, the constitutional right to association is exercised inclusively by way of web associations. The right to privacy of correspondence, telephone communications, postal, telegraphic and other electronically transmitted messages is guaranteed in full in the territory of the Russian Federation under Article 63 of the Federal Law "On Communications".
The constitutional law elements of e-democracy also include the relations of national sovereignty enshrined in Article 4 of the Russian Federation Constitution, reflected in digital (information) sovereignty as the country's sovereign right to regulation of the information space. Under the 2017-2030 Information Society Development Strategy, Russia should promote its sovereign right to determine the information, technological and economic policies in the national segment of the Internet at the international level. According to W. Gong, Chinese researcher, a country's digital sovereignty means independence of the national authorities to pursue information policies and support the information and communication order within the national borders [Gong W., 2005:119].
The national sovereignty is related to the constitutional category of national territory as the physical limit of its extension which in digital relationships comes to be characterized as the information space of ex-territorial nature.
Over the recent years, constitutional studies have been enriched with newly coined terms such as digital constitutionalism, digital constitution and even digital constitutional law as an innovative branch brought forward by digitization of the realities of state and law. As noted by I.A. Kravets, the future may be faced with a legitimate question on whether digital constitutional law is a standalone regulatory branch [Kravets I.A., 2020: 93].
There is no such subject in the content of digital constitutional law in its doctrinal interpretation. Digital technologies used in constitutional processes will not by themselves create constitutional provisions in the physical sense but only support their implementation by electronic communication means. Constitutional law and digital constitutional law are indistinguishable in terms of their subject. While their scope covers an identical range of social relationships, they differ in methods of regulation in such a way that constitutional law determines the general composition of the relationships in their static form whereas digital constitutional law will express their dynamic state by supporting their implementation in digital procedures.
Digital constitutional law exists only in procedural terms as a branch of procedural law identifiable in comparison and in connection with substantive law. As was observed by O.E. Kutafin, "the role of procedural provisions is to determine the order and procedure for the implementation of provisions which enshrine the rights and duties of the parties to legal relationships" [Kutafin O.E., 2015: 95]. In the system of constitutional law, one should distinguish the substantive and procedural provisions as those closely related but not identical.
The e-democracy relationships are governed by procedural provisions which implement the constitutional norms of democracy and popular rule. As a branch of law, constitutional procedural law is fairly well established as a ring-fenced and independent right-conferring entity with the legal sources of its own in the form of election law providing for e-voting, electronic civil initiatives etc.
Apart from constitutional law, the e-democracy relationships are regulated by municipal law to form the institution of e-municipality.
E-democracy is also subject to information law as a set of provisions which regulate social relationships in the data sphere in connection with the production, transmission, dissemination, search and receipt of information, use of information technologies and data protection [Popov L.L., Migachev Yu. I., Tikhomirov S.V., 2010: 11].
It is not accidental that constitutional and information laws make up one and the same field under the existing classification of research occupations awardable with academic degrees — 5.1.2 (sciences of state and law) — to cover research areas such as public law regulation of information and IT (digital) technologies, archive-keeping and data protection; legal regulation of the use of IT (digital) technologies in public authority and public governance.
Moreover, information law relies on constitutional premises characteristic of the information principles of the Russian constitutional system. According to legal literature, "there is an evident link between the constitutional and information law regulation of relationships in information society to make both branches interact as they regulate the relationships in the sphere of information" [Abdrakhmanov D.V., 2022: 58].
Apart from information law, the e-democracy relationships are governed by digital law believed to be equal to information law by a majority
of literary sources since information technologies are believed to be equal to digital ones.
This approach is fairly reasonable as in the information era no data resources can be used outside the latest IT technologies. Under Federal Law No. 149-FZ of 27 July 2006 "On Information, IT Technologies and Data Protection" — the main source of information law — state regulation of IT technologies means regulation of the relationships to search, receipt, transmit, produce and disseminate information through the use of IT technologies (informatization). As observed by A.A. Tedeev, the subject to be regulated by information law should be social relationships that emerge in the process of electronic communications taking place in the information environment [Tedeev A.A., 2006: 4].
At the same time, not all information technologies, that is, procedures and methods of searching, accumulating, storing, processing, providing, disseminating information, are implemented in the digital format. Information as messages (data) of whatever form and method of communication and use (informatization) existed long before the emergence of digital technologies which are a legacy of the recent times called postindustrial. It is only then that information law has absorbed the digital content to include the provisions governing digital technologies as such in connection with electronic data transactions which assume the language of binary calculations. The digital terminology became established in legal studies and law much later than the information terminology.
Like any set of data, information can be not only electronic but also textual, graphical, sonic, visual, harmonic etc., that is, contained in a format which does not require any digital (IT) technologies.
Digital technologies are only part of information technologies that embrace all technologies related to data transactions implementable even through the use of analogue devices. Informatization subsumes digitization but is not limited to it. Digitization is the technological framework of informatization in its current form, a process of making information digital. As observed in the studies of information law, such feature of informatization as the technical and technological principles of satisfying information needs in the legal sphere is very important for understanding the essence of informatization in law. These principles assume a set of actions to design and effectively apply user-friendly data systems for an automated process
of satisfying the information interests in law through the use of computers, digital telephony/telecommunications and high-performance IT technologies [Kuznetsova P. Yu., 2012: 279-280].
Digital provisions as part of information law have emerged gradually as the information environment was digitized and digital technologies replaced analogue ones to form an institution which, on the one hand, is a standalone structural unit of information law covering normatively homogenous, intrinsically arranged legal material, and, on the other hand, a primary element of a new branch of law which provides for comprehensive, relatively complete regulation of innovative digital relationships within a separate segment of law. According to S.S. Alexeev, the young main branch is formed by the gradual transformation of entities typically in the following order: law — legal institution — sub-branch — complex specialized branch — main specialized branch [Alexeev S.S., 1975: 226-227].
The emergence of social processes that required a digital form and special regulation was a physical prerequisite for making digital law an institution in its own right.
As digital relationships spread out to become more specific, the institution of digital law was transformed first into a sub-branch of information law and later into an independent branch which did not coincide with information law in terms of its subject. The subject of digital law is the whole set of digital (digitized) relationships, not only those of information. The system of digital relationships covers those not directly related to information transactions, such as e-services to be provided as part of e-government in support of the public service function though these relationships carry an information component in the form of data they use.
Viewed in terms of its subject matter, functional and structural parameters, digital law can be regarded as a standalone, independent branch of law which has sprung from information law. New branches of law will always stem from those already established as their logical extension.
This branch of law has emerged in response to an objective need to digitize social relationships which require special regulation, and due to the emergence of computer and telecommunication technologies beyond the regulatory scope of the main, field-specific branches of law.
Digital law has all the acknowledged features of a branch of law, the first and foremost being the presence of a particular subject of regulation. As
observed by S.S. Alexeev, the subject of regulation has a primary, systemic importance for branches of law. The subject provides for an objective need in separate regulation of the relationships in question and constitutes the decisive systemic basis just because a known group of relationships and long-felt necessities of social life — whatever is covered by it — objectively need to be specifically regulated through a specific regulatory regime [Alexeev S.S., 1975: 169].
There is every reason to believe that digital law has a specific subject of regulation of its own as a related set of qualitatively homogenous and objectively determined social relationships which make up its identity.
The subject of digital law is made of social relationships which emerge in the process of digitization of law through the use of digital technologies in legal processes as a set of methods to apply computing equipment to accumulate, store, process, transmit and use the relevant information and which comprise electronic resources needed to manage information processes.
Digital relationships as the subject of regulation also predetermine the name of the branch (digital law).
It is not about standards of technical and operational nature which are used, in particular, in programming and which include dedicated software to be used in election processes to generate the keys for encryption and decryption of election outcomes.
Provisions of digital law are durable legal standards regulating the content of digital transactions. As applied to election, these standards define the procedures for anonymization to prevent the use of special software and other arrangements to connect recordable voting results to personal data of voters, and the procedures for authentication to check whether voters really possess the identifiers they use and to confirm their validity.
The institution of digital law is made of digital rights created in the legal information environment which open up the access to digital resources for network communication between individuals and the state. As noted by V.D. Zorkin, digital personal rights are universal human rights which become specific in the digital and virtual space both at the legislative level and at the level they are exercised [Zorkin V.D., 2018].
Digital rights are recognized by legislation as valuable rights to constitute obligational and other rights defined by law as digital whose content
and terms of exercise are determined under the rules of a qualified data system. To exercise and dispose of digital rights including to pledge, transfer and otherwise encumber such rights or restrict their disposal is only possible in the data system without recourse to a third party (Article 141.1, Civil Code of Russia).
Digital rights also include the right of access to the Internet, right of access to telecommunication networks, right to protection of digital personal information, right to protection of reputation of personal identity, consumer's right to protection of privacy including in personal data processing, etc.
Conclusion
The extent of IT penetration into the political and legal environment which transforms the legal position of individuals allows to treat information (and digital) rights as the latest generation of individual rights and liberties characteristic of the personal legal status in the postindustrial society.
E-democracy is regulated simultaneously within several branches of law to form a complex legal institution. At the same time, e-democracy as an institution relies on provisions of constitutional law which enshrines its main legal characteristics and conceptual principles. It is provisions of constitutional law in their primary form that define the institutional system of e-democracy in terms of composition of its parties, its information component, legal format of its implementation, and the extent of its impact on public authorities.
References
1. Abdrakhmanov D.B. (2022) Constitutional principles of informatization of society in the Russian Federation. Candidate of Juridical Sciences Thesis. Cheliabinsk, 244 p. (in Russ.)
2. Alexeev S.S. (1975) The structure of Soviet law. Moscow: Juridicheka-ya literature, 260 p. (in Russ.)
3. Alexeeva M.V. (2012) The exercise of the constitutional right for information as one of basic human rights. Konstitcionnoye i minitcipalnoe pravo=Constitutional and Municipal Law, no. 7, pp. 16-20 (in Russ.)
4. AntonovYa. V. (2016) Constitutional principles of e-democracy in Russia. Sbornik trudov Severo-Zapadnogo Instituta upravlenia=Collected Papers of the North-West Institute of Governance, no. 1, pp. 117-125 (in Russ.)
5. Avakian S.A. (2019) The information space of knowledge, digital world and constitutional law. Konstitutcionnoye i munitsipalnoe pravo=Constitutional and Municipal Law, no. 7, pp. 23-28 (in Russ.)
6. Bell D. (1988) The social framework of the information society. In: A new technocratic wave in the West. Moscow: Progress, pp. 330-342 (in Russ.)
7. Bondar N.S. (2019) The digital information space as a new focus of constitutional law: doctrinal principles and practice. Zhurnal rossiyskogo prava=Journal of Russian Law, no. 11, pp. 25-28 (in Russ.)
8. Gadzhiev G.A., Voinikanis E.A. (2018) Can a robot be a person at law (search for legal forms for regulating digital economy). Pravo. Zhurnal Vysshey shkoly ekonomiki=Law. Journal of the Higher School of Economics, no. 4, pp. 24-28 (in Russ.)
9. Goncharov I.V. (2019) Constitutional values in the era of "digital technologies". Konstitutcionnoye i munitcipalnoe pravo=Constitutional and Municipal Law, no. 11, pp. 15-17 (in Russ.)
10. Gong W. (2005) Information sovereignty reviewed. Intercultural Communication Studies, no. 1, pp. 119-135.
11. Information technologies in legal practice (2012) P.Yu. Kuznetsova (ed.). Moscow: Norma, 422 p. (in Russ.)
12 .Khabrieva T.Ya., Chernogor N.N. (2019) State and law in the modern world: issues of theory and history. Zhurnal rossiyskogo prava=Journal of Russian Law, no. 1, pp. 85-102.
13. A.N.Kokotov, M.I. Kukushkin et al. (2010) Constitutional law in Russia: textbook. Moscow: Prospekt, 543 p. (in Russ.)
14 .Kravets I.A. (2020) The digital constitutionalism and the future of information society. Gosudarstvo i pravo=State and Law, no. 4, pp. 85-104 (in Russ.)
15 .Kutafin O.E. (2015) The subject of constitutional law. Moscow: Norma, 448 p. (in Russ.)
16. Mamut L.S. (2005) A network state? Gosudarstvo i pravo=State and Law, no. 11, pp. 5-12 (in Russ.)
17. Popov L.L., Migachev Yu. I., Tikhomirov S.V. (2010) The information law. Moscow: Yurait, 495 p. (in Russ.)
18. Shakhray S.M. (2018) Digital constitution: the main personal rights in a totally information society. Bulletin RAN=Vestnik RAN, no. 12, pp. 1075-1082 (in Russ.)
19. Talapina E.B. (2018) Law and digitization: new challenges and prospects. Zhurnal rossiyskogo prava=Journal of Russian Law, no. 2, pp. 5-17 (in Russ.)
20. Tedeev A.A. (2006) The subject of information law in the Internet context. Informatcinnoye pravo=Information Law, no. 3, pp. 3-6 (in Russ.)
21. Tedeev A.A. (2016) Transforming legal system in the IT development context. Trudy po intellektuaknoy sobstvennosti=Works on Intellectual Property, vol. 24, no. 1, pp. 123-140 (in Russ.)
22. Travnikov N.O. (2016) Main stages of personal development in the information sphere. Sovremennoye pravo=Modern Law, no. 2, pp. 43-46 (in Russ.)
23. Zorkin V.D. (2018) Law in the digital world: thoughts at the Saint Petersburg international legal forum. Rossiyskaya gazeta. 30.05.2018. No. 7578. (in Russ.)
Information about the author:
Lolaeva A.S. — Candidate of Sciences (Law), Associate Professor.
The paper was submitted to the editorial office 01.11.2022; approved after reviewing 17.11.2022; accepted for publication 21.11.2022.
