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E-Residency: A Cyberdream Embodied in a Digital Identity Card?

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The Future of Law and eTechnologies

Abstract

Estonia—the small yet digitally advanced EU Member State—is the first country to open up its e-services to the world by issuing e-residencies, the Estonian equivalent to digital identity, to non-nationals. The Estonian digital identity or an e-residency grants its holder several rights unbeknownst to, or at least unapplied in, the majority of the EU Member States and in the world at a larger scale. Being an e-resident of Estonia, one can use the digital services of the country even if there had beforehand been no prior connection to Estonia, provided the potential e-resident shows legitimate interest. The digital services include possibility to digitally sign documents (legally enforceable in any EU Member State), do online banking, encrypt documents, as well as establish and manage a company in Estonia and declare its taxes online via the state-proven digital identity card issued and backed by the Estonian government. The given chapter scrutinises the perception of e-residency and discloses the problematical unbalanced aspects of it, pointing out that although secure from a technical point of view, e-residency lies on a defective concept and conflicting Estonian national regulatory framework that does not fully support the integration of the idea.

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Notes

  1. 1.

    Hereinafter weblinks available at the end of chapter in the References list.

  2. 2.

    Statistics from official ID-card and Mobile-ID portal.

  3. 3.

    In fact, Estonia adopted the system of electronic declarations in 2000; 3 % of the people declared their taxes online back then; within 15 years, this number has increased by 94 %. Statistics from Estonian Tax and Customs Board Yearbooks.

  4. 4.

    Estonian Information System Authority.

  5. 5.

    Statistics about Internet Voting in Estonia from Estonian National Electoral Committee. For more information, see, for instance, Madise and Vinkel (2014), pp. 53–72.

  6. 6.

    Freedom House Freedom on the Net 2014. Estonia country report.

  7. 7.

    § 45 of the Constitution of the Republic of Estonia.

  8. 8.

    Pursuant to §44 of the Constitution, Estonia, everyone is entitled to free access to information disseminated for public use; it is laid down by the Public Information Act, §33, that “Every person shall be afforded the opportunity to have free access to public information through the Internet in public libraries, pursuant to the procedure provided for in the Public Libraries Act”.

  9. 9.

    Freedom House 2014 Freedom of the Net Estonia report.

  10. 10.

    Digital Agenda for Europe. Progress by country. Estonia Scoreboard.

  11. 11.

    See, for instance, the Economist explains: How did Estonia become a leader in technology? The Economist. 30 July 2013, by A.A.K, describing Estonia as having a “strong tech culture.” As well as “Digital identity cards. Estonia takes the plunge.” The Economist. 28 June 2014. Furthermore, Elisabeth Braw, “‘E-stonia’ Attempts to Become the Uber of Economies by Introducing Virtual Residency.” 30 October 2014. Newsweek, etc.

  12. 12.

    “The D5 will provide a focused forum to share best practice, identify how to improve the Participants’ digital services, collaborate on common projects and to support and champion our growing digital economies.” The D5 Charter.

  13. 13.

    Another Estonian success story is the Data Exchange Layer X-Road that was launched in 2001 to enable secure Internet-based data exchange between the state’s information systems. President Ilves has claimed that the system was adopted merely because Estonia was too poor to afford a central server. In 2013, Finland and Estonia signed an MoU on cooperation in the field of ICT, one of the objectives of which was to implement the source code of the X-Road for practical use in Finland as a national data exchange layer. Another interesting fact is that the same MoU was the first international intergovernmental digitally signed agreement.

  14. 14.

    The Minister of the Interior of the Republic of Estonia, Mr Hanno Pevkur at 05.02.2015 weekly press conference of the Government of the Republic of Estonia. It must be noted that up-to-date statistics on the number of applicants and e-residencies issued are not available to the public.

  15. 15.

    The idea was introduced by Taavi Kotka, Ruth Annus and Siim Sikkut. Estonian Development Fund is a public institution subject to the Parliament investing in innovative companies for the purpose of contributing to Estonian economic development.

  16. 16.

    Issuing digital identities to non-residents: creating e-residency. Concept. Appendix to explanatory memorandum to draft legislation of Estonian Identity Documents Act and State Fees Act. Appendix 1.” [Mitteresidentidele digitaalse isikutunnistuse väljaandmine: e-residentsuse loomine. Kontseptsioon. Isikut tõendavate dokumentide seaduse ja riigilõivuseaduse muutmise seaduse eelnõu seletuskirja juurde. Lisa 1.] 2014. Available only in Estonian. Hereinafter referred to as the Concept.

  17. 17.

    Digital Agenda 2020 for Estonia.

  18. 18.

    The Digital Agenda 2020 has submitted as among its objectives the maintaining of Estonian image as a technologically advanced country and well-developed information society, as well as creating awareness of e-Estonia in the world.

  19. 19.

    Identity Documents Act of the Republic of Estonia. § 205. E-resident’s digital identity card. Hereinafter referred to as IDA.

  20. 20.

    The supporting of Estonians and the Estonian culture abroad is organised through the national compatriots programme led by the Ministry of Education and Research and implemented in cooperation with the Ministry of Culture and the Ministry of Foreign Affairs.

  21. 21.

    The Concept, supra note 16.

  22. 22.

    Chronology of ID-Card from the Official ID-Card and Mobile-ID portal.

  23. 23.

    Electronic ID-Card information from E-Estonia site.

  24. 24.

    Public Key Infrastructure. PKI. Estonian Information System Authority.

  25. 25.

    § 2 (2) of the Estonian Digital Signatures Act.

  26. 26.

    A certificate is an electronic certification that binds the data necessary for certifying the authenticity of a person and the digital signature with the person and certifies the identity of the person. See more from the ID-card and Mobile-ID Portal “What are certificates.”

  27. 27.

    IDA, Supra note 19. § 94. Entry of certificates in document.

  28. 28.

    §5 (1) of the Digital Signatures Act: “… a certificate is a document which is issued in order to enable a digital signature or digital seal to be given and verified and in which a public key is uniquely linked to the certificate holder”.

  29. 29.

    ID-Card. Computer protection. Information security signpost. [ID-kaart. Arvutikaitse. Infoturvalisuse teeviit.]

  30. 30.

    Ibid.

  31. 31.

    About Mobile ID from the official ID-card and Mobile-ID portal.

  32. 32.

    Martens (2010), p. 217.

  33. 33.

    IDA, supra note 19, § 205. The Identity Documents Act differentiates between a digital identity card §2 (11) and a digital document prescribed for digital identification of a person §3 (3).

  34. 34.

    Ibid, § 202. Digital data to be entered on digital identity card.

  35. 35.

    The first e-resident was the British journalist, Senior Editor to the Economist Magazine, Edward Lucas. See, for instance, his foreword to the e-Estonia newsletter.

  36. 36.

    Estonian ID-card and e-ID are actually quite similar to Belgium card. See Martens (2010), p. 216.

  37. 37.

    The Concept, supra note 16, p. 4.

  38. 38.

    Ibid, p. 3.

  39. 39.

    The proposals in the Concept were developed in joint effort of representatives from Estonian Ministry of the Interior, Republic of Estonia Government Office, Ministry of Economic Affairs and Communications, Information System Authority, Police and Border Guard Board, Estonian Internal Security Service, Estonian Tax and Customs Board, Certification Centre, with consultations from other interested parties.

  40. 40.

    The Concept, supra note 16.

  41. 41.

    Ibid, p. 6. This argument is based on an analysis on multiple citizenship, conducted by the Ministry of the Interior in 2013 [Mitmikkodakondsus. Analüüs. Siseministeerium 2013].

  42. 42.

    The Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation).

  43. 43.

    The Points of Single Contact (PSCs) are e-government portals for entrepreneurs active in the service sector. It is a legal requirement to have a PSC in each EU country since December 2009 as set out in the EU Services Directive.

  44. 44.

    These are listed as possible uses of ID-card. For more, see the ID-card and Mobile-ID official portal.

  45. 45.

    An e-resident may be eligible to open a bank account in Estonia; however, it still requires a physical visit to Estonia, to the bank, and does not guarantee the opening of a bank account as it is up the bank to make the decision.

  46. 46.

    Services for the so-called hassle-free transaction of affairs; see more at the e-Estonia website.

  47. 47.

    The Concept, supra note 16, p. 6.

  48. 48.

    To overly criticise, it seemed obsolete from the beginning. If the aim of the compatriot policy is to increase communication in Estonian language between migrant (ex)citizens, e-residency is surely not the tool bearing in mind the penetration of social media sites.

  49. 49.

    Pursuant to IDA, supra note 19, § 206 (4), the card may be revoked if the basis specified in subsection (1), i.e., having a relationship with the Estonian state or legitimate interest in the use of e-services of the Estonian state, of this section ceases to exist.

  50. 50.

    The Ministry of Economic Affairs and Communications introductory page to e-residency, under the title “Why are we doing it?” declares—“Registration of businesses will bring investments to Estonia and create jobs and will thus accelerate the economic growth.” Nothing about culture, education or science.

  51. 51.

    The Concept, supra note 16, p. 4.

  52. 52.

    Ibid, p. 12.

  53. 53.

    Ibid, Section 2.1. Underlying Principles [Aluspõhimõtted].

  54. 54.

    IDA, supra note 19, § 206 (1). Conditions for issue, suspension of validity and revocation of e-resident’s digital identity card.

  55. 55.

    §102 (1) of Regulation of the Government of the Republic laying down the list of certificates and information to be submitted upon application and terms for the issue of an identity card, a residence permit card, a digital identity card, an Estonian citizen’s passport, a seafarer’s discharge book, a temporary travel document, a travel document for a refugee or a certificate of record of service on ships.

  56. 56.

    IDA, supra note 19, § 9. Standard format of documents and data entered in documents.

  57. 57.

    IDA, supra note 19, §111. Identification of person and verification of identity upon issue of document; § 121. Issue of document; §15 Organisation of issue and revocation of document, (4). See also Estonian Ministry of the Interior website.

  58. 58.

    Ibid. §209. Identification of person and verification of identity of e-resident.

  59. 59.

    Ibid. §208. Exercise of state supervision. See further Chapter 6 of the Estonian Aliens Act.

  60. 60.

    Since May 13, 2015, an online application site has been accessible at https://apply.e-estonia.com/, rendering obligatory merely one visit to the consular office, embassy or Estonian Police and Border Guard Representation necessary for obtaining the document.

  61. 61.

    IDA, supra note 19, §207 (11).

  62. 62.

    Ibid, §§ 206 and 207.

  63. 63.

    The Concept, supra note 16, p. 9.

  64. 64.

    Even if initially submitted to foreign missions, the applications are referred for examination to the Board officials in Estonia.

  65. 65.

    After opening the online application site, the workload for the Police and Border Guard Board has further increased; at the moment of writing this article, it seems that the amplified load is a problem insofar as according to the official application website, the review process has slowed down: “Due to high volume of applications, the application review process will currently take longer than expected. Thank you for your patience.”

  66. 66.

    Digital Agenda 2020 for Estonia, p. 30.

  67. 67.

    The Concept, supra note 16, p. 8.

  68. 68.

    Ibid, p. 8.

  69. 69.

    The Concept, supra note 16, p. 10.

  70. 70.

    Ibid, pp. 10–11 and the IDA, supra note 19, § 207 (3).

  71. 71.

    The Concept, supra note 16, pp. 11–12.

  72. 72.

    IDA, supra note 19, §9.

  73. 73.

    Ibid, §152.

  74. 74.

    Public Information Act, § 432. State information system.

  75. 75.

    Government Regulation No. 252 of 20.12.2007, Information systems security measures sytem [Infosüsteemide turvameetmete süsteem]. Only available in Estonian. For an overview in English, please see the Information Systems Authority website.

  76. 76.

    Government Regulation No. 109 of 03.07.2008, Statutes on maintaining the database on identity documents. [Isikut tõendavate dokumentide andmekogu pidamise põhimäärus] §§4 and 18. Only available in Estonian.

  77. 77.

    The Concept, supra note 16, p. 9.

  78. 78.

    Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States.

  79. 79.

    Goncalves and Gameiro (2012), p. 324.

  80. 80.

    Background to Regulation 2252/2005, available at EUR-Lex.

  81. 81.

    Directive 95/46/EC.

  82. 82.

    Proposal for a Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). COM(2012) 11 final.

  83. 83.

    Article 29 Data Protection Working Party. Working Party on Police and Justice. The Future of Privacy. Joint contribution to the Consultation of the European Commission on the legal framework for the fundamental right to protection of personal data, pp. 14, 26 and 27.

  84. 84.

    Article 29 Data Protection Working Party. Working document on biometrics, p. 6.

  85. 85.

    Schouten and Jacobs (2009), p. 311.

  86. 86.

    Ashbourn (2005), p. 20.

  87. 87.

    See the contributions of, for instance, Katrin Nyman-Metcalf, Ülle Madise, Priit Vinkel, Pawan Dutt, Agnes Kasper, Addi Rull, Ermo Täks and Alexander Norta in Kerikmäe (2014).

  88. 88.

    Dutt and Kerikmäe (2014), p. 294.

  89. 89.

    Goncalves and Gameiro (2012), pp. 322–323.

  90. 90.

    Ashbourn (2005), p. 21.

  91. 91.

    Ibid.

  92. 92.

    Nyman-Metcalf (2014), p. 41.

  93. 93.

    Ibid, p. 34.

  94. 94.

    Al-Khouri (2014). See also Graux (2013), De Andrade (2012) and De Andrade (2013).

  95. 95.

    OECD (2011). Digital Identity Management. Enabling Innovation and Trust in the Internet Economy.

  96. 96.

    Ibid.

  97. 97.

    Communication from the Commission Europe 2020. A strategy for smart, sustainable and inclusive growth. COM(2010) 2020 final.

  98. 98.

    Regulation (EU) No. 910/2014.

  99. 99.

    Even though there was a legal framework for digital signatures at the EU level even prior to the Digital Agenda 2020, it existed solely only e-signatures (Directive 1999/93/EC) and did not encompass e-identification or other trust services, e.g., time stamping.

  100. 100.

    See Hoikkanen et al. (2010), p. 6.

  101. 101.

    Curiously enough, Graux, when analysing the problematics of the EU eSignatures Directive, noted that the comprehensive electronic authentication framework common to the EU could be regarded as a business opportunity since the EU has failed to act upon this at supranational level. See Graux (2011).

  102. 102.

    Hoikkanen et al. (2010), p. 4.

  103. 103.

    Innovative technologies need e-regulation that is consistent and interoperable with “traditional” regulation. With developing implementable e-regulation, a need arises for progressive methodological basis. An example of 10 policy principles for such methodological approach are provided, for instance, by Kerikmäe and Dutt; see Kerikmäe and Dutt (2014), pp. 28–29.

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Särav, S., Kerikmäe, T. (2016). E-Residency: A Cyberdream Embodied in a Digital Identity Card?. In: Kerikmäe, T., Rull, A. (eds) The Future of Law and eTechnologies. Springer, Cham. https://doi.org/10.1007/978-3-319-26896-5_4

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