1.
Introduction
The past years have
shown the rise of ‘e-Enforcement’. e-Enforcement is the use of electronic
tools in law enforcement. In some sectors, the use of such tools has been
common for some time, such as the use of cameras to prevent red light
running and speeding offences. Recently, however, several new initiatives
have been developed, such as tools to combat truck overloading and enforce
driving and rest hours for drivers.
In this paper, we
pay attention to these new developments, focussing on the special position
of the clients of the enforcement. These clients are the offenders or
potential offenders, whom we will refer to as ‘inspectees’ for the
purposes of this article. What characterizes these clients is that they do
not want the service and generally show uncooperative behaviour. They may,
for example, actively evade the ‘service’ of enforcement, or commit
information fraud. What do these client characteristics imply for the use
of e-Enforcement? Can modern technologies force inspectees to comply? Our
answers to these questions are based on two case studies, carried out at
the Netherlands Transport and Water Inspectorate in 2003. They provide an
insight into the social aspects of e-Enforcement and explain why merely
implementing a technical solution is insufficient to make enforcement
work.
The structure of
this paper is as follows. In the next section, we present a
state-of-the-art overview of e-Enforcement, based on literature. We will
then introduce typologies of e-Government and its clients and explore the
implications for e-Enforcement. Given these typologies, we will formulate
research questions. We will present the two case studies and derive
answers to the research questions, resulting in conclusions.
2.
e-Enforcement: State of the art
e-Enforcement is
the use of electronic tools in law enforcement. It is a form of
e-Government. ‘E-Enforcement’ is an abbreviation for ‘electronic
enforcement’ [Smith et al. 2000] and is synonymous with ‘automated
enforcement’ [Ruby and Hobeika 2003; Smith et al. 2000; Wissinger
et al. 2000; Wilmot and Khanal 1999; Bochner 1998; Turner and Polk
1998; Glauz 1998; Meadow 1998; Perone 1998; Retting and Williams 1996].
Some e-Government
and digital government publications mention the area of regulation and law
enforcement. Chen [2002a] mentions that the National Science Foundation in
the U.S. has funded a number of digital government projects
aimed at, among others, law enforcement. Chen refers to new databases and
data mining technologies, which ‘could become the catalyst for encouraging
information-sharing and supporting collaboration and investigation among
police departments, corrections offices, social services and courts’ [Chen
2002a]. Strejcek and Theil [2002] mention that bilateral and national
treaties between E.U. member states are providing electronic government
measures such as the exchange of data in the field of interstate
cooperation in penal law and law enforcement. Chen et al. [2002b]
have analysed Coplink Connect, an information and knowledge management
system, for law enforcement.
All examples and
studies concerning e-Government in law enforcement mentioned above concern
government-to-government interaction [Hiller and Belanger 2001]. In this
paper, however, we are interested in government relating to businesses or
citizens. Critical publications on this type of e-Government are found in
the literature on automated traffic enforcement.
The literature
about automated traffic enforcement
discusses the use of electronic tools for the enforcement of laws against
speeding [Wilmot and Khanal 1999, Glauz 1998, Perone 1998], running red
signal indications [Ruby and Hobeika 2003, Walter 1998], entering railroad
crossings when gates are down [Meadow 1998], failing to pay tolls and
high-occupancy vehicle lane violations, electronic toll collection
systems, vehicle inspection, weigh-in-motion stations and remote emission
sensing [Bartoskewitz et al. 1999, Bochner 1998, Turner and Polk
1998]. Bochner [1998] reports that automated enforcement is used in over
75 countries throughout the world.
Automated traffic
enforcement is found to be very effective in reducing violations and
eventually in reducing accidents [Ruby and Hobeika 2003, Glauz 1998,
Meadow 1998, Perone 1998]. Some authors mention that motorists may oppose
the introduction of automated traffic enforcement by influencing
politicians [Bartoskewitz 1998, Turner and Polk 1998]. None of the
authors, however, mentions or investigates opposition of inspectees after
the definitive introduction of the systems, which is the focus of this
paper.
3.
Clients of e-Government
Many definitions
describe e-Government in terms of service delivery. [O’Donell et al.
2003; Finger and Pécaud 2003; Marchionini et al. 2003; Chen 2002a;
Ho 2002; Devadoss et al. 2002, Gartner Group 2000 in Hiller and
Belanger 2001, Moon 2002, UN and ASPA 2001]. The descriptions contain the
concept of customer focus [Finger and Pécaud 2003; Devadoss et al.
2002; Ho 2002]. e-Government should satisfy the customers, both citizens
and the private sector [Finger and Pécaud 2003].
A government
delivering services deals with several types of service recipients or
clients. Alford [2002] distinguishes the clients as being paying
customers, beneficiaries or ‘obligatees’. In addition to clients, he
introduces ‘the citizenry’, because, in some cases, society in general
rather than the service recipient or client benefits from the service.
Paying customers
exchange money for products or services they want. An example is commuters
paying for public transport. The clients express their preference and pay
for the value they receive. Examples of e-Government dealing with a paying
customer are agencies selling passports to its citizens online [Tian and
Tianfield 2003].
Beneficiaries
receive services without paying for them directly, for example pupils at
publicly funded schools. The client benefits from the service and is
generally happy receiving it. The public or ‘citizenry’ express
preferences for the service through a democratic process and pay for the
service through taxes. Examples of e-Government to beneficiaries are
social security requests online [Bovens and Zouridis 2002, Hiller and
Belanger 2001] and electronic medical files [Szende 2003].
Obligatees
do not want the product or service and may even oppose it, as is most
obvious in law enforcement. Obligatees usually receive something they
would rather not have, such as checks and inspections, possibly resulting
in coercion, imprisonment and penalties. The citizenry profit from the
service, however. By restricting the client, society receives value, for
example law and order, public goods and functioning markets [Alford 2002,
Sparrow 2000]. Examples of e-Government dealing with obligatees are
automated enforcement of speed restrictions by means of cameras [Bovens
and Zouridis 2002] and tax transactions over the Internet [Hiller and
Belanger 2001].
e-Enforcement is an
e-Government service to obligatees. However, the image of customer focus
that is often used in e-Government does not seem to apply to
e-Enforcement, at first sight. After all, receiving this ‘service’ cannot
satisfy the clients of e-Enforcement.
Still, at a closer
look, the concept of customer focus does apply even to obligatees, as
Alford argues. We will show this is also true for the clients of
e-Enforcement. We even argue that the customer focus is an effective
strategy when inspectees oppose e-Enforcement.
4.
e-Enforcement, inspectors and obligatees
4.1
Strategic behaviour - First question
An important
characteristic of obligatees is that they display strategic behaviour or
game playing. This means that in the process of interaction with the
inspector they continuously try to strengthen their own position. Patterns
of strategic behaviour of inspectees might be one of the following choices
[de Bruijn and ten Heuvelhof 2000, Hawkins 1984]:
Promising future improvements to ensure
that the inspector will adopt a cooperative attitude;
Asserting that improvement of behaviour
is technically unfeasible, or not yet feasible, to ensure that strict
enforcement seems unreasonable;
Continuing to violate the rules, even
after sanctions are imposed;
Threatening to start legal proceedings,
which might embarrass the inspector;
Using political networks to stress
alleged unfairness of certain regulations, to ensure that the inspector
lacks political support for his actions.
An important aspect of strategic
behaviour concerns the supply of information from the obligatee to the
inspector. Obligatees tend not to cooperate and provide requested
information voluntarily, as this might disadvantage them.
These observations
lead to the first question addressed in this paper. How does the
introduction of e-Enforcement affect the strategic behaviour of the
obligatee?
This question is
interesting for two reasons. Firstly, the literature on enforcement
predicts strategic behaviour of inspectees. Literature on e-Enforcement
however, has not yet addressed this issue.
Secondly, although
the literature on enforcement predicts strategic behaviour of inspectees,
e-Enforcement could turn out to be different, because e-Enforcement seems
to potentially enable zero-tolerance enforcement. Offences can be detected
more easily, no discussion is possible between the inspector and the
inspectee, and the scope of enforcement could be enlarged, while the
ticketing could be automated. If this is true, the expectation that
e-Enforcement will end strategic behaviour is justified.
4.2
Interdependence and the need for interaction
- Second question
Much of the
enforcement literature distinguishes between two styles of enforcement.
The first style is based on compulsion and the unilateral coercion of
compliance by a government. This style works when the relation between
inspector and inspectee is hierarchical. The second is based on
cooperation and interaction between inspector and obligatee. This style
works when inspector and inspectee are mutually dependent [Hawkins 1984:3,
Sparrow 2000:34].
If strategic
behaviour remains after the use of e-Enforcement, the second style seems
more appropriate to deal with it, as the strategic behaviour implies
mutual dependency. Using a style of cooperation and interaction is in line
with Alford, who advocates an approach of customer focus, even when
dealing with obligatees.
Alford [2001]
argues that governments should treat the obligatee as a customer, just
like paying customers and beneficiaries. If obligatees have value to offer
to the government, then the government has a reason to treat the
obligatees as customers and offer value to them. Alford argues that
obligatees indeed have value to offer. They may not pay for the ‘service’
of enforcement, but they may choose to provide other things the government
agency needs, such as information, compliance or cooperation [Alford 2001,
Hawkins 1984]. Furthermore, they may choose to refrain from strategic
behaviour.
Using the other
style, applying coercion, also enables government to achieve these values,
according to Alford, but this is costly. The literature on enforcement
confirms this view. Compulsion is expensive; dialogue tends to leads to an
intrinsic commitment of the obligatee [Hawkins 1984].
The government is
thus dependent on the inspectee to optimise enforcement. Alford states
that government is likely to receive the value wanted from inspectees, by
treating them as customers. The government of course cannot satisfy
inspectees by completely refraining from all enforcement. It is possible,
though, to provide value to inspectees within the borders of coercion.
Acting in a way that inspectees consider fair and just and making it
easier to comply can achieve this.
When the
introduction of e-Enforcement does not end strategic behaviour of
inspectees, we advocate an approach of value exchange, dialogue and
negotiation between the government and the obligatee. Our second question
for this paper is therefore: do the cases on e-Enforcement offer starting
points for such an approach?
5.
Two case studies
5.1
Weigh in Motion with Video
Trucks can be
overloaded either as a whole or on one axle. Both types of overloading are
punishable. Weigh in Motion with Video is a system to conquer truck
overloading. It was introduced in cooperation between various agencies
within the Ministry of Transport and Water Management and the National
Police Agency. The system consists of sensors in the road surface and
overhead cameras for identification. Currently, there are six weighing
points in the Netherlands. The case study is mainly based on the
experiences with a pilot scheme lasting approximately one year.
The system has
several applications. Applied ‘repressively,’ it is used for pre-selection
purposes. A police team at the weighing point sees the images of
overloaded trucks and pulls them over. The weight of the trucks is checked
with a certified weighing system, sanctions imposed being based on these
checks. Because inspectors know beforehand what vehicles are overloaded,
all human inspection capacity can be spent dealing with offenders. In the
future, the weighing system in the road surface may itself be certified,
making weighing checks superfluous and allowing penalty notices to be sent
automatically.
Applied
‘preventively’, the system gathers the data of all offences at all
weighing points round the clock, turning them into company files based on
registration plates automatically. Inspectors visit frequently offending
companies, and solutions are worked out in cooperation with these
companies. Unwilling companies may face a check offensive by inspectors at
the company gate.
5.2
The digital tachograph
Driving and rest
hours for truck drivers are subject to regulation. A tachograph is a
device in a vehicle that records drivers' driving and rest hours. There is
a statutory obligation for each truck or coach within the EU to have a
tachograph on board. Inspectors can read on drivers' tachograph charts
whether they have taken enough breaks and rests. Inspectors can perform
roadside checks, but they can also visit companies. Companies are obliged
to retain their drivers' tachograph charts and inspectors can impose
sanctions for offences committed earlier, based on company visits paid
later.
So far, a
tachograph has always been an analogue device with paper charts. Fraud
with analogue tachographs was the reason for the EU decision to introduce
compulsory digital tachographs. Not only was tampering with digital
tachographs believed to become more difficult, but also it was thought
that enforcement would become more efficient and companies would be able
to link the data from digital tachographs to their company records.
The future digital
tachograph will measure the speed of a truck in the same way as the
analogue tachograph but store the data digitally. The driver has a
personal driver's smart card, on which the data is also stored. A roadside
inspector can read the device. When visiting a company, inspectors can
check the whole company file, which can be analysed much faster than the
pile of paper charts. In the future, companies may be obliged to send
their data to the Inspectorate, which would make enforcement even more
efficient.
It will be clear
that these two case studies concern government-obligatee interaction. The
obligatee does not want to be ‘served’ by enforcement. Both the rules for
truck loading and for driving and rest hours conflict fundamentally with
the primary processes of the road haulage firms. Some examples:
Imagine a company receiving an order
that involves the shipping of four concrete pillars. One truck can carry
three pillars according to law, but has a technical capacity of carrying
four pillars. By law, two trucks are needed to carry out the order, but
the company that offers to take them on one truck has the lowest price and
wins the bid.
Delivering goods on time is a central
value in transport. Driving and rest time regulations may conflict with
that value. An example is a driver who may be too late to deliver his
freight that day, if he takes his compulsory rest. Another example is a
driver who may see his cargo of fresh flowers wither, if he is forced to
spend the night at the truck park. Putting two drivers on one truck can
solve these problems, but this doubles the costs. One company competing by
driving longer than allowed puts pressure on all other companies to do the
same.
A driver may also choose to neglect
driving and rest hours in order to be home the same day, instead of
spending the night at a truck park. Drivers may get paid for doing
overtime and thus be willing to exceed driving and rest hours.
Enforcement may be
a service to the market as a whole–which is the reason for transport trade
associations to favour enforcement–but not the inspectee who is breaching
the law.
5.3
e-Enforcement and strategic behaviour
What does the
introduction of these forms of e-Enforcement mean for the strategic
behaviour of the obligatee? The following are some of the patterns.
Less strategic
behaviour…. In the
first place, that strategic behaviour is found to diminish. It is
practically impossible to pass a Weigh in Motion point without being
registered. It does not pay to behave strategically by taking another
lane, as the sensors are present in the entire width of the road. It does
not pay to tamper with the license plate, as the cameras photograph the
entire truck, which is always recognisable.
Weigh in Motion
even seems to be an incentive for non-strategic behaviour, as there are
many positive developments in the sector: constructive dialogue with
enforcers, information sessions about solutions for overloading problems,
technological innovations and adaptations to the fleets of vehicles are
all examples. Inspectors can give many examples of companies having mended
their ways after a preventive visit. The explanation is simple. Weigh in
Motion will offer less room for strategic behaviour, thus creating an
incentive for compliance.
An ex ante analysis
of the digital tachograph presents the following picture. The current
analogue tachograph is subject to fraud. Drivers throw away or manipulate
charts; they tamper with the device, or pay workshops to tamper with it.
The aim is to get rid of records that demonstrate infringements, or to
prevent the creation of such records. The digital tachograph is designed
to be fraud-proof. There are far fewer possibilities to tamper with
digital tachograph devices. Every attempt to tamper with the device is
recorded in its memory and will be visible to inspectors.
….but some
strategic behaviour stays the same.
E-Enforcement does not solve some of the strategic behaviour that already
occurred in the days of traditional law enforcement. A simple example is
that the proportion of overloads in the transport flow drops to almost
zero shortly after an inspection team has taken up a position at a
weighing point. Drivers are believed to use their on-board communication
equipment to inform each other of the presence of inspection teams. Those
who know or suspect that their vehicles are too heavy wait at a truck stop
till the team goes home, or choose a different route. The inspectorate can
react by placing inspectors at the circuitous routes. However, this makes
the enforcement process more labour-intensive and thus more expensive.
Exactly the same behaviour occurred in the days that inspectors stood by
the road and selected and weighed trucks manually.
Drivers using the
analogue tachograph can hold back intermediate charts. The digital
tachograph no longer has any charts, but carries the risk of ‘loss’ of or
sabotage to the driver's smart card. Drivers are allowed to drive without
a smart card for a week while waiting for a new one. The fallback option
in case the driver drives without a smart card has the same disadvantages
as the analogue system.
There is a risk
of strategic behaviour on a collective level.
Our analysis of Weigh in Motion shows
that Weigh in Motion is not only relevant for the relation between
individual obligatees and the government, but that the tool also offers
possibilities for intelligence at a collective level. Inspectors can gain
insight into specific companies or types of transport where overloading
occurs relatively often and subsequently focus on them.
We also find that
e-Enforcement can cause strategic behaviour to shift from the individual
inspector-inspectee relation to the collective level. As regards digital
tachographs, Anderson [1998, 2001: 234-242] warns against the misuse of
workshop smart cards. These are special smart cards, which workshops can
use to change the settings of the device when they install or repair the
digital tachograph. Past practice has shown that truck companies bribe the
workshops to tamper with analogue tachographs [Anderson 1998]. Bribing the
workshops to misuse or circulate the workshop smart cards would make
large-scale fraud with digital tachographs possible. Inspectors confirm
this risk. Large-scale fraud would also be possible if inspectees
succeeded in cracking the security measures on downloaded data. The risk
of the ‘crack’ being spread is greater for digital technologies than it is
for analogue technologies. It is not clear yet whether these events will
indeed take place. However, what is clear is that strategic
behaviour on the individual level will become less simple and hence
incentives and possibilities may arise for strategic behaviour on a
collective level.
5.4
e-Enforcement and the value inspectors and
obligatees can offer
The case studies
show that e-Enforcement does not solve strategic behaviour just like that.
The relation between the inspector and the inspectee is a relation of
mutual dependency. E-Enforcement should be embedded in an interaction
approach rather than a compulsion approach. Both the obligatee and the
government have value to offer to each other. We found a surprisingly
large number of issues, which the government and the obligatee can offer
each other as value. We expect that exchange and interaction processes
facilitate the introduction of e-Enforcement.
The inspectee
can offer value to the government in the following ways.
1. Not behaving
strategically. The government agency would want the inspectees not to
evade the weighing points. Guarding the circuitous routes is
labour-intensive for the agency. Inspectees refraining from evading the
weighing points would enable the agency to take a much fairer view of
overloading. Inspectees would offer value by refraining from fraud with
tachographs. The agency could then base enforcement on true information
about driving and rest times.
2. Abandoning
negative criticism of the new systems. Inspectees label the electronic
enforcement as ‘big brother’. They perceive a loss of privacy and fear
future applications of the system. For example, a large network of
weighing points might enable government to track and trace all trucks.
Another point of criticism is the supposed unfairness of the systems. The
systems allegedly focus on specific regions or groups only. Negative
criticism attacks the legitimacy of e-Enforcement and may influence
politicians’ attitude towards e-Enforcement. This is why inspectees offer
value by abstaining from criticism.
3. Offering
technical support on the identification of bugs. As regards the
digital tachograph, inspectees can offer value to the government by
revealing the weak points in the security of the system.
4. Quickly
adopting the new systems. Another value inspectees could offer the
inspectorate is switching over to the digital tachograph early. The
digital tachograph is only compulsory for new trucks. Considering the
write-down term for trucks, there will be a transition period of about ten
years in which analogue and digital tachographs will exist side by side.
This is a disadvantage for the inspectorate, as it cannot change over to a
new enforcement process completely and will only achieve limited
efficiency gain. The more inspectees make a quick switch to the digital
system, the more efficiency the inspectorate gains.
The government can
offer value to the inspectee in the following ways.
1. Providing equal
enforcement intensities. Inspectees feel that if rules against
overloading are enforced, they have to be enforced equally for all
companies. They want the government to place weighing points everywhere in
the country, not only in the crowded western part. Focusing enforcement on
a specific region does not prevent competitors elsewhere in the country
from competing unfairly.
2. Tolerating
offences temporarily. Inspectees argue that overloading has become an
issue in enforcement only since the introduction of Weigh in Motion. Only
since then have they been making efforts to prevent it. As this is hard,
the government should provide a transitional arrangement.
It is true that
overloading of the entire truck can easily be prevented by taking less
freight. However, one-axle overloading, without necessarily the truck as a
whole being overloaded, is a technical problem. The overloading is related
to the way the truck is loaded and unloaded during the day. Preventing
axle overloading implies investing in either technical devices or new
trucks. Companies prefer to wait making new investments until it is time
to buy a new truck. Inspectees thus argue time is needed for adjustments
towards compliance. They feel the government should allow this time, for
example by tolerating small offences on one-axle overloading for a limited
period of time.
3. Focussing on
the bad guys. Well-disposed inspectees want the inspectorate to focus
on the bad guys and to be lenient to the good guys. This means
distinguishing between total truck overloading, which is unfair
competition, and one-axle overloading, which is a technical issue.
Inspectees feel the penalties for one-axle overloading are too high.
One-axle overloading is classified as an economic offence and therefore as
a criminal-law offence. Inspectees argue that total overloading is an
economic offence indeed, but one-axle overloading is not. They want the
government to lower the penalties to the level of administrative offences.
4. Adding
functions to enforcement tools. As regards the digital tachograph,
inspectees would value a digital tachograph tailored to the needs of their
companies. This would be the case if they could use the system for the
management of personnel, administration of working hours, fuel management,
route planning, congestion information, and so on.
5. Not disturbing
internal work processes. Inspectees do not want the process of
enforcement to conflict with their own working processes. Unfortunately,
they think the opposite is the case with the digital tachograph. Drivers
personally have to collect their smart cards, which takes working time.
Companies may need to offer drivers education on the operation of the new
device. Downloading data from the single devices to a central company
computer may require drivers abroad to return periodically.
6. Involving
inspectees in decision-making processes: Road haulage firms want to be
involved in the decision-making on the design of the digital tachograph
and on the processes of operation, especially in decisions that bring on
costs that are eventually shifted on to the road haulage firms.
7. Helping
inspectees to find solutions to comply: Inspectees want the government
to be involved in the process of finding and implementing feasible
solutions for one-axle overloading. To prevent overloading, government
could, for example, reduce the tax on trucks with extra axles. Inspectees
complain that driving and rest hour regulations conflict with working
hours. Adapting the scheme could increase compliance.
The issues
mentioned can lead to processes of interaction and exchange, which benefit
the introduction of e-Enforcement.
If inspectors temporarily tolerate minor
offences or if they add functions to enforcement tools, inspectees have
fewer incentives to behave strategically. Government might further reduce
strategic behaviour by helping inspectees to find solutions that will make
them comply.
By offering technical support in
identifying bugs, inspectees can classify themselves as well disposed. The
government may consequently be more willing to distinguish between good
guys and bad guys among inspectees and focus on the bad guys.
Increasing the perceived fairness of
e-Enforcement, can reduce criticism from inspectees.
If inspectors design enforcement
processes that are compatible with companies’ working processes, thereby
involving inspectees in decision-making, inspectees would be more inclined
to quickly adopt the new systems. The same is true when tools contain
added functions for the inspectee.
6.
Conclusions
e-Enforcement does
not solve the problem of strategic behaviour completely. It is true that
e-Enforcement makes it easier for the inspector to collect information
about the inspectee and use it intelligently, thus reducing some strategic
behaviour. It seems also true that modern technology is more resistant to
evasion and fraud at the level of one inspectee and one tool. It is hardly
possible to pass a weighing point without being registered and a driver
cannot easily manipulate a digital tachograph device.
However, using
technology does not seem to prevent strategic behaviour at a system level.
Drivers can still evade weighing points by taking another route.
Furthermore, at a system level we see the risk of strategic behaviour
shifting to collective forms, involving more than one inspectee. These
risks are tachograph fraud by manipulating downloaded data, or by the
illegal distribution of workshop smart cards.
If the government
wants to prevent strategic behaviour, especially the more threatening
collective forms, merely implementing e-Enforcement will not suffice. At a
system level, the technology does not prevent strategic behaviour.
Strategic behaviour at a system level can even be inherent to the
technology, as the nature of digital systems makes fraud reproducible.
Thus, governments should seek the solution neither in technology, nor in
coercion and compulsion, but in interaction. Inspectors and inspectees
have value to offer to each other concerning e-Enforcement.
Therefore, although
inspectees are generally not pleased with receiving the ‘service’ of
e-Enforcement and thus differ from other government clients, the
government can still treat them as customers. By paying attention to the
interests of inspectees, governments will promote the success of
e-Enforcement.
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