Enquete-Kommission Internet und digitale Gesellschaft (Enquete Commission on Internet and Digital Society)

Authors: Kirsten Gollatz, Sarah Herweg, and Jeanette Hofmann [1]
Humboldt Institute for Internet and Society (HIIG)

Abstract: This case study explores The Enquete Commission on Internet and digital Society (EIDG), which is a parliamentary inquiry body of the German Bundestag that conducted its work from May 2010 until April 2013. Enquete Commissions are special bodies of the German Bundestag, which form an interface between policy-makers and academic and professional experts to examine through discussion forums and working groups broad and complex matters of society that cannot be sufficiently dealt with within the regular parliamentary framework. The EIDG was introduced in response to rising awareness regarding the challenges for politics and society that digitization brings along, which became apparent in a controversial draft bill before the parliament that called for the mandatory blocking of websites with child pornography-related content. The EIDG consisted of 34 individuals, 17 democratically elected members (members of parliament) and 17 experts and practitioners representing industry, trade unions, civil society and academia. Furthermore, the public was invited to participate in the EIDG’s consultations “to a special degree,” which included efforts at transparency and an online engagement platform. It is too early to assess the policy impact of the EIDG’s work, as it is still unclear to what extent the new parliament will include the EIDG’s policy recommendations in its legislative initiatives. However, as a mechanism for bringing together heterogeneous sources of knowledge and expertise for the purpose of enlightening decision-making processes, the general model of an Enquete Commission can be regarded as an effective and legitimate mechanism for parliaments and possibly other deliberative bodies. Going forward, finding the appropriate implementation mechanisms that will help inform evidence-based policy making and provide justification for spending further resources should be taken into account in the process design.

[1] Kirsten Gollatz and Sarah Herweg wrote the first draft of this case study. The draft was partly based on interviews with Jeanette Hofmann and Wolfgang Schulz, both members of the former Enquete Commission. Jeanette Hofmann wrote the second draft and co-authored the third draft. This is why she is both co-author and source of this case-study.

Table of Contents

I. Introduction
II. Values and Function
III. Organizational Model and Structure
A. Composition
B. Funding
C. Membership structure
D. Working Groups
E. Additional Staff
F. Other Stakeholders/ External Experts
G. Public Participation
H. Communication Between Members
IV. Decision-Making Structures
V. Outcomes VI. Lessons Learned and Considerations for Future Organizations
A. Integrating Expertise and Knowledge into Politics in an Inclusive, Fair and Representative Manner
1. Integrating Knowledge Across Heterogeneous Domains
2. Identifying Future Policy Fields Beyond Current Controversies
3. Providing Equal Status Among All Members
4. Maintaining Independence/Autonomy of Experts in their Contributions
B. Deliberative Processes for Generating New Knowledge and Fostering Social Learning
1. Democratizing Political Decision-Making Through the Generation of Knowledge
2. Providing Sufficient Resources
3. Compromising Between Degrees of Public Scrutiny
C. Translation Into Politics

I. Introduction

Enquete Commissions[2] are an example of advisory institutions contributing to the representative tasks of the German Bundestag (Federal Parliament). They form an interface between policy-makers, and academic and professional experts to examine and provide advice on emerging and complex matters that cannot be sufficiently dealt with within the regular institutional framework of the parliament and its committees.[3] The term “enquete” has its roots in the Latin term “inquirere” [= inquire, investigate, examine].[4] As part of its parliamentary reform in 1969, the German Bundestag established the instrument of an Enquete Commission in its Rules of Procedures. It was established as an instrument of information gathering to strengthen the role of the parliament vis à vis the government within the overall legislative institutional framework.[5] There have been 27 Enquete Commissions since 1971 when the first of its kind was initiated.[6] Enquete Commissions are relatively unique. Austria is the only other country that has introduced this parliamentary body.

Paragraph 56 of the Rules of Procedure of the German Bundestag provides for the establishment of an Enquete Commission for the purpose of investigating wide-ranging and significant issues by a motion of one quarter of its members. The motion resolution contains the Commission’s mission and its terms of reference.[7] The membership of Enquete Commissions consists, in equal numbers, of democratically elected members (members of parliament) and external experts, including representatives from the private sector, civil society, and the academic community. They are nominated by the parliamentary groups and appointed by the president of the German Bundestag.[8] Enquete Commissions are thus parliamentary tools for addressing long-term societal challenges that exceed the expertise of the parliament but may also become the subject of public and academic controversies. They constitute a hybrid of a discussion forum and a working body, aiming to develop a basis for future decision-making around political challenges beyond day-to-day political affairs. Enquete Commissions are explicitly set up to overcome the constraints of the competition between political parties by bringing together academic experts and practitioners with political decision-makers. The administrative regulations of the German Bundestag determine the model (structure and institutional design) and limit the outputs of Enquete Commissions to general recommendations.

[2] The term “Enquete Commission” is translated either as parliamentary study or inquiry Commission. However, the specific set-up of the German Enquete Commission seems to be unique without any equivalents in other Western democracies.
[3] Other Enquete Commissions for example dealt with topics such as genetic engineering, demographic change, future education policy or law and ethics of modern medicine.
[4] Heyer Christian, and Stephan Liening. 2004. Enquete-Kommissionen des Deutschen Bundestags. Schnittstellen zwischen Politik und Wissenschaft, 2nd edition, Berlin, p. 7.
[5] Heyer and Liening 2004, p. 7f.
[6] See: http://de.wikipedia.org/wiki/Liste_der_Enquete-Kommissionen_des_Deutschen_Bundestags (last visited 19.08.2014); Heyer and Liening 2004, p. 7f.; http://daten.offenesparlament.de/datenhandbuch_1990-2010/08/08_10/index.html.
[7] German Bundestag. 2013. Rules of Procedure of the German Bundestag and Rules of Procedure of the Mediation Committee, Berlin, §56, p. 45. (Further cited as “Rules of Procedure”)
[8] Heyer and Liening 2004, p. 12f.

II. Values and Function

In general, Enquete Commissions are an instrument of the parliament to integrate expert advice in legislative processes. They serve both problem-oriented functions and politics-oriented functions.[9] The former directs attention to the aim of using expert knowledge to identify and understand the issue at stake, including alternative perspectives and available evidence related to the problem. The latter refers to the communicative and strategic use of expert advice in order to determine the political agenda, or to justify policies and political positions.

The Enquete-Kommission Internet und digitale Gesellschaft (EIDG)[10] combined both functions. It was established through a resolution by the German Bundestag, proposed by four out of five parliamentary groups, and was adopted unanimously on March 4, 2010.[11] In general, Enquete Commissions are regarded as a means for the opposition parties of the parliament to shape and set the political agenda. However, EIDG was the result of a joint effort by all parties and various industry associations. This unusual alliance was due to political controversies in 2009, a federal election year in Germany. The German minister of family affairs had put a draft bill before the parliament, which called for the mandatory blocking of websites with child pornography-related content.[12] The law stipulated that all Internet service providers would sign a contract with the government forcing them to filter Internet content based on secret black lists compiled daily by the federal crime police office. The draft law caused a political outcry not only among civil rights organizations, but also across German stakeholder groups including parts of the Internet industry. Despite the massive opposition, the German federal parliament adopted the law in 2009. However, the widely shared argument that content filtering is the wrong approach to combating child pornography won in the end and the law was never enforced.[13]

What was regarded as a triumph among the Internet community looked more like a disaster from the perspective of the members of the parliament. The polarized public atmosphere in the aftermath of the access impediment act gave rise to the general belief that an Enquete Commission was needed to look at the development of the Internet and its regulatory implications in more depth. An Enquete Commission was also thought to have positive educational effects on the members of the parliament, many of which still rely on their staff for Internet communication.

The appointment resolution of EIDG specified its mission including the topics it should address. The ruling parties of the Bundestag produced the first draft of the appointment resolution, which placed emphasis on commercial aspects of the Internet.[14] In the subsequent negotiations with the opposition parties,[15] civil rights-related topics were added to the agenda after opposition parties threatened to introduce their own version of an appointment resolution. Ultimately, the consensual appointment resolution covered a wide range of issues and reflected the concerns of all negotiating parties.[16] The Internet Enquete commission took up its work in May 2010 and the German Bundestag adopted its final report in April 2013. The mission of EIDG as enshrined in the appointment resolution[17] was twofold: Members of the commission were called (1) to examine chances and challenges of digitization and (2) to develop recommendations for German legislators in six issue-areas:

• Culture and media
• Economy and environment
• Education and research
• Consumer protection
• Law and domestic policy
• Society and democracy

Furthermore, the parliament asked the EIDG to involve the public in its consultations “to a special degree,” which involved informing the public as regularly and transparently as possible about its progress via the Bundestag website.[18] The mission of EIDG also provided for the deployment of tools for online participation that would ensure the involvement of the public in the work and progress of the commission. Notably, the high degree of public participation that the parliament called for is not a general characteristic of Enquete Commissions. Rather, it reflected the subject matter of EIDG. Since the Internet facilitates reaching out to the broader public and allows for easier participation, the call for public consultation can be regarded as both a goal as well as an experiment.

[9] Mark B. Brown et al. 2005. Representation, Expertise and The German Parliament: A Comparison of Three Advisory Institutions, in: Democratization of Expertise? Exploring Novel Forms of Scientific Advice in Political Decision-Making edited by S. Maasen, and P. Weingart, P. Dordrecht: Springer, 2005, p. 81.
[10] English translation: Enquete Commission for Internet and Digital Society.
[11] The four parliamentary groups were the Christian Democratic Party (CDU/CSU), the Social Democratic Party (SPD), the Free Democratic Party (FDP) and the Green Party. The appointment resolution traces back to a proposal from the government coalition of CDU and FDP, cf. Krempl, Stefan. 2010. Schwarz-gelb sucht übergreifende Regeln fürs Internet. heise online, 14 January 2010, available at: http://www.heise.de/newsticker/meldung/Schwarz-Gelb-sucht-uebergreifende-Regeln-fuers-Internet-904684.html (last access 17 July 2014).
[12] http://www.zugerschwg.com/
[13] Due to the substantial criticism the Access Impediment law (Zugangserschwerungsgesetz) never came into effect and was finally repealed by the German parliament in December 2011, cf. Freedom House Foundation (eds.) Freedom on the Net Report 2012–Germany, available at: http://freedomhouse.org/report/freedom-net/2012/germany#.U_yLKDK00vI (last access 26 August 2014).
[14] The Christian Democratic Party formed a coalition government with the Liberal Democratic Party during the parliamentary term from 2009 until 2013. They also had the majority of members in the Enquete Commission (see the chart below).
[15] The Social Democratic Party, the Green Party and the Left formed the opposition in the federal parliament. The Left did not participate in the negotiations but supported its outcome.
[16] Information by a member of staff of the Social Democratic Group of the German Bundestag
[17] Deutscher Bundestag. 2010. Antrag der Fraktionen CDU/CSU, SPD, FDP und Bündnis 90/ Die Grünen. Einsetzung einer Enquete-Kommission “Internet und digitale Gesellschaft”. Bundestagsdrucksache 17/950, 3 March 2010, p. 2. (Further cited as “Appointment Resolution”)
[18] Appointment Resolution, p. 4.

III. Organizational Model and Structure

A. Composition

Most important for the work of an Enquete Commission are its members. Their expertise and experience in the respective field – be it as scientific experts, practitioners, or policy experts – provides the commission with the necessary knowledge, and a broad range of perspectives and opinions to serve as the basis for developing policy recommendations. The EIDG consisted of 34 individuals, 17 democratically elected members (members of parliament) and 17 experts and practitioners representing to fairly equal parts industry, trade unions, civil society and academia. Amongst the experts and practitioners were IT-entrepreneurs, lawyers, bloggers, programmers, consumer advocates, and researchers.[19] The parliamentary groups were responsible for the nomination of the external expert members. Following the Rules of Procedures, the composition reflected the relative size of the parliamentary groups as represented in the German Bundestag (see Figure 1). In this sense, proportional political representation is a very implicit goal of the commission’s institutional design.[20]

In contrast, it is worth noting that the nomination procedure of social and disciplinary representatives did not follow a transparent process and differed for every parliamentary group.[21] While the external experts were chosen according to their expertise, political leanings also played an important role in doing so. In general, parliamentary groups are unlikely to appoint experts that do not share and support their party’s political stance.[22] Thus, the conservative Christian Democrats (CDU/CSU), for instance, appointed representatives of the industry and lawyers that would advocate for more conservative political viewpoints, while the Left Party appointed a trade union representative and the spokesperson of a traditionally leftist hacker club.

Figure 1. Enquete Commission for Internet and Digital Society of the German Bundestag: Roles, Resources and Relations

[19] Cf. Progress Report.
[20] Mark B. Brown et al. 2005, p. 87.
[21] The Green Party, for example, took the gender balance into account and appointed one male and one female expert. The Free Democratic Party issued a call for application and selected at least one of their appointees based on interviews. The Christian Democratic Union included representatives from the region of its sister party Christian Social Union, Bavaria, cf. Interview with Jeanette Hofmann.
[22] Cf. Heyer and Liening 2004, p. 13.

B. Funding

Being a parliamentary forum, the EIDG was financed by the German Bundestag. Its meetings were held in the conference rooms of the parliament. The expert members received a modest[23] expense allowance for their work. However, it is unlikely that this allowance served as an incentive for participating in the EIDG. Rather, expert members participated because of their general interest in the topic, the possibility to shape the future policy agenda of the parliament, and perhaps prestige.[24] Besides the funding of expense allowances and running costs, no further budget was allocated for the Enquete Commission.

[23] Given the considerable workload particularly for the expert members.
[24] Cf. Interviews with Jeanette Hofmann and Wolfgang Schulz.

C. Membership structure

It is the underlying idea of Enquete Commissions that democratically elected members and appointed expert members should work together on equal footing. Accordingly, there were no formal distinctions between democratically elected and appointed members. Only the chair of the EIDG, the chairs of the working groups, and the Obleute (parliamentary spokespersons) can be said to have a more dominant role. However, since the composition of the EIDG reproduced the parliament’s political balance of power, the governing Christian Democrats and Liberals had more democratically elected as well as expert members, and thus most of the time held the majority of votes.[25] Also, the resources at the disposition of the individual members differed enormously.[26]

The largest parliamentary group (Christian Democrats, CDU) also nominated the chair of the EIDG who was elected in the constituent meeting. The chair, who has to be a member of the German parliament[27], is responsible for preparing, convening, and conducting plenary meetings.[28] (See Figure 1)

Every parliamentary group also chooses an Obmann or Obfrau [plural: Obleute] to act as spokesperson and – in case of conflict – as chief negotiator of the respective parliamentary group. Together with the Commission chair, the Obleute deliberate on points of order and other technical issues; they are furthermore responsible for selecting the experts to be invited for hearings.[29] In practice, the Obleute are almost always democratically elected members, thus members of parliament. As a result, there is a risk of experts playing a subordinate role with regard to the procedural aspects of an Enquete Commission. However, decisions by the Obleute are only preliminary and are hence open to debate in the Commission plenary.[30]

[25] The impact of the imbalance in the membership composition first became obvious when the number of questions in expert hearings where allocated according to the number of EIDG members of each parliamentary group. Later on, this procedure was replaced by rounds of questions, cf. Interviews with Jeanette Hofmann and Wolfgang Schulz.
[26] One of the trade union representatives, for example, had three employees dedicated to EIDG work at his disposal, which enabled him to contribute disproportional amounts of texts, cf. interview with Wolfgang Schulz.
[27] The chair executes domiciliary rights in place of the president of the Bundestag in accordance with § 40, subsection 2, first sentence of the German Constitution; Heyer and Liening 2004, p. 14.
[28] Unlike the president of the German Bundestag who does not participate in debates of the parliament , the chair of an Enquete Commission is allowed to contribute, cf. Heyer and Liening 2004, p. 14.
[29] Cf. Heyer and Liening 2004, p. 15; Interview with Jeanette Hofmann.
[30] Cf. Heyer und Liening, p. 16.

D. Working Groups

While the EIDG held 20 plenary meetings, the main work took place in working groups.[31] The working groups produced the reports that the EIDG plenary later discussed and voted upon. While original plans provided for three permanent working groups covering “law,” “economy,” and “politics,” a majority of EIDG members argued for a different approach and decided during their Conclave in May 2010 to set up twelve working groups.[32] Their topics and dates of commencement are displayed in the following chart, which shows the order of events from the genesis to the termination of the Internet-Enquete.

Figure 2. Enquete Commission for Internet and Digital Society of the German Bundestag: Timeline of events from 2010 until 2013

Each working group was comprised of nine voting members appointed by the parliamentary groups. These members had the right to vote on preliminary reports. However, working groups were open to contributions by interested EIDG members, which is why some working groups had up to 26 members.[33] Chairs and co-chairs were chosen by the Obleute. While the EIDG had to establish several working groups in parallel, meetings were almost never held at the same time to allow members to attend. The first working groups covered the topics of net neutrality, copyright, privacy and personal rights, and media literacy.[34]

[31] Cf. Statement Dr. Wolf Osthues in Final Report, p. 19f.
[32] Cf. Interview with Jeanette Hofmann; Progress Report, p. 3.
[33] Lists of members of each working group can be found at http://webarchiv.bundestag.de/cgi/show.php?fileToLoad=2944&id=1223. Noticeably, the first working groups were the most popular ones in terms of contributing members (e.g. the working groups on copyright and net neutrality). The working groups starting late 2011 were less well attended due to their significant workload. Enquete Commissions usually are a heavy burden both for the expert members with their individual jobs and the parliamentary members who have tight schedules, especially during session weeks. There was therefore the tacit expectation that a substantial part of committee work was to be done by the expert members, cf. Interview with Jeanette Hofmann.
[34] Progress Report; Deutscher Bundestag. 2010. Enquete Kommission Internet und digitale Gesellschaft: Kurzprotokoll der 3. Sitzung, Protokoll Nr. 17/3, Berlin, June 14, 2010.

E. Additional Staff

The EIDG secretariat, which consisted of up to 15 employees, supported the meetings of the plenary and, more importantly, the writing of reports of each working group. More specifically, the secretariat staff was responsible for taking notes and writing minutes as well as for compiling the contributions that were discussed during working group meetings. Furthermore, the secretariat supported the chair in managing the EIDG. In addition to the Enquete secretariat, all parliamentary groups hired at least one staff person to support their members in producing draft documents and to facilitate communication among the group.[35]

[35] Cf. Interview with Jeanette Hofmann.

F. Other Stakeholders/ External Experts

Besides the appointed expert members as sources of information and expertise, another venue for information gathering of Enquete Commissions are expert hearings. As the appointed expert members’ areas of competence might not cover all subject matters of the Enquete Commissions’ mission, further experts can be invited to contribute additional knowledge. [36] In the case of EIDG, almost every working group conducted public hearings. The EIDG members agreed on a set of questions for the invited experts, and their written answers formed the basis for the public hearing. All in all, EIDG conducted 13 expert hearings with roughly 85 external experts between 2010 and 2013. External experts included public servants, academics, practitioners, industry, and civil society representatives.[37] Not least of all, public hearings serve as a means to spur public interest and involve the interested public in the commission’s work.

[36] Heyer and Liening 2004, p. 18f.
[37] For specific information on invited experts cf. the collection of protocols and minutes, http://webarchiv.bundestag.de/cgi/show.php?fileToLoad=2944&id=1223.

G. Public Participation

The mission of the EIDG stipulated involving the public “to a special degree.”[38] Hence, questions of transparency and participation were given center stage from the beginning. Contrary to the principle laid down in the Rules of Procedure that Enquete Commissions do not work publicly,[39] the EIDG decided to make its plenary meetings publicly available through live streaming unless otherwise decided.[40] Some of the working groups moreover decided to make their meetings public, although these latter decisions were controversial. One concern was that transparency would politicize the working groups; another concern was that their members would lose the chance to change their opinion without having to declare them publicly.[41] In practice, the parliament lacked the technical and financial resources to stream all working group meetings. As a compromise, expert hearings held by working groups were streamed online and were open for the public to attend.[42] Although exact numbers of live stream viewers do not exist, we know that the live stream of an expert hearing in July 2010, for example, had 1833 views with an average duration of 26 minutes. Afterwards, the video was uploaded on the website and was watched 366 times within the first 20 hours.[43]

The EIDG also included the public in the form of the so-called “18th expert” (18. Sachverständiger). The 18th expert played a symbolic role and more or less boiled down to a speaking slot for a remote participant at EIDG plenary sessions and hearings. This speaking slot enabled observers to address invited experts with comments or questions, for instance.[44]

As already suggested in the mission, the EIDG commissioned a microsite[45] that had its own navigation and allowed for a new degree of public involvement well surpassing the usual practice in parliamentary commissions.[46] It contained agendas, meeting minutes, and reports on every public or non-public meeting in addition to a calendar with all public meetings, announcements, summaries and calls for participation.[47] The EIDG also established a blog for its members to communicate their personal impressions of the commission’s work to the public. The blog included a public forum enabling observers to ask questions and discuss topics with the commission members directly.[48]

Besides the speaking slot for the 18th expert and the microsite, public consultation was encouraged predominantly through the participatory online platform enquetebeteiligung.de,[49] which enabled public participation throughout the different phases of working group consultations. This entailed the possibility of commenting and revising drafts, as well as suggesting additional text. The working groups decided individually how and to what extent to incorporate contributions thus made by the public. Some working groups adopted public recommendations – sometimes literally – for their preliminary report, while others listed the public recommendations in their preliminary reports to justify the decision to adopt them or to reject them, while yet others included them in their preliminary reports as dissenting opinion.[50]

Enquetebeteiligung.de went online in February 2011, with considerable delay. The delay was mainly due to the adverse reaction of the Federal parliament administration. As there was no budget for EIDG, the Bundestag presidency was not willing to finance the development and implementation of the EIDG participatory tool. [51] Adhocracy, the open source platform used for the site, is a product developed by the association Liquid Democracy e.V.,[52] which aims to enhance democratic participation by means of software tools. As a consequence of the opinion of the parliament administration, the association built the EIDG website without getting remuneration. Not only the implementation of the participation platform was controversial, the tool remained a controversial topic among the members of the Enquete Commission as well.[53]

Assessing the success of public involvement, the transparency of and public participation in the EIDG’s work was unparalleled compared to other Enquete Commissions, though there is clearly room for improvement. The implementation of the online-participation tool enquetebeteiligung.de particularly suffered from a sort of culture clash between the Internet community and the bureaucracy of the Federal parliament. This culture clash might be a result of the unfamiliarity of the administration with participatory online tools and the resulting unwillingness for funding. Thus in practice, although participants expressed satisfaction with the adhocracy platform,[54] its implementation took a long time and consequently came too late to be fully accepted and integrated into the EIDG’s working procedure.[55]

In terms of numbers, the participation platform had 30,000 visitors and 3,250 active participants who performed 80,000 individual actions such as commenting or uploading text. The number of text proposals for working groups lay between nine (international & Internet governance) and 81 (democracy and the state).[56] However, participation in votes on proposals (a specific feature of the adhocracy platform) was only in the single- or double-digits. While the quality of the contributions was generally regarded as high, the extent of participation was seen as disappointing by many.[57] On the other hand, a study conducted by Zeppelin University found out that users were very content with the tool and regarded their participation as meaningful although they did not believe to have a major influence on the work of EIDG. As is the case with most forms of online participation, the group of users of enquetebeteiligung.de was a very specific demographic: users were mainly males that were interested in politics and mostly older than 40 years.[58]

Notwithstanding the overall support for the experiment of involving the public,[59] it was a major challenge for the EIDG to link public contributions to its own contributions. For some members it just meant an extra workload to include the public contributions into the working group reports, especially since there were neither established guidelines nor allocated time frames for doing so.[60] Overall, the openness of EIDG members to incorporate contributions from the online-platform varied.

[38] Appointment Resolution, p. 4.
[39] As set up in the Rules of Procedure, §69.
[40] Cf. Interview with Jeanette Hofmann; Deutscher Bundestag. 2013. Schlussbericht der Enquete-Kommission “Internet und digitale Gesellschaft”. Bundestagsdrucksache 17/12550, 5 April 2013, p. 7. (Further cited as “Final Report”).
[41] Cf. Final Report, p. 7f.; Statement Prof. Dr. Christof Weinhardt in Final Report, p. 23.
[42] Cf. Final Report, p. 7.
[43] Beckedahl, Markus. 2010. Statistiken zur Enquete-Anhörung. Netzpolitik.org, 7 July 2010, https://netzpolitik.org/2010/statistiken-zur-enquete-anhoerung/.
[44] Freude, Alvar C.H. 2011. Die Online-Beteiligung kann endlich starten! Blog der Enquete-Kommission Internet und digitale Gesellschaft. February 25, 2011. http://webarchiv.bundestag.de/cgi/show.php?fileToLoad=3414&id=1223.
[45] Accessible through www.bundestag.de/internetenquete.
[46] Cf. Final Report, p. 7f.
[47] Deutscher Bundestag. 2011. Zwischenbericht der Enquete-Kommission “Internet und digitale Gesellschaft”. Bundestagsdrucksache 17/5625, 19 April 2011, p. 4. (Further cited as “Progress Report”); Final Report, p. 7.
[48] The forum was later supplemented by the participatory platform www.enquetebeteiligung.de, cf. Progress Report, p. 4.
[49] Accessible via www.enquetebeteiligung.de.
[50] Cf. Final Report, p. 11.
[51] Cf. Interview with Jeanette Hofmann.
[52] Accessible via https://liqd.net/en/.
[53] Cf. Interview with Jeanette Hofmann.
[54] Große et. al. 2012. Der Erfolg von enquetebeteiligung.de. Begleitforschung zur Adhocracy-Plattform der Enquete-Kommission “Internet und digitale Gesellschaft”. Version 1.0. Deutsches Telekom Institut für Connected Cities, Zeppelin Universität, Friedrichshafen. Available online at: https://fold.liqd.net/netzwerk/forschungsprojekte/zeppelin-university/.
[55] The website enquetebeteiligung.de was launched in 2011 whilst the Enquete Commission began working in 2010. The first four working groups introduced online participation only at an advanced stage. Cf. Interview with Wolfgang Schulz.
[56] Cf. Final Report, p. 9 and 11.
[57] Cf. Final Report, p. 9 and 11.
[58] Große et al. 2012.
[59] Cf. Große et al. 2012.
[60] Cf. Final Report, p. 12; cf. Interview with Jeanette Hofmann.*

H. Communication Between Members

Communication between members took place predominantly during the EIDG meetings themselves. Working group members also used mailing lists as an important channel for circulating new drafts and organizing the work.[61] However, pre-existing relationships between EIDG members also played a considerable role. Relationships outside the realm of EIDG included professional relationships (e.g. between the participating law experts) as well as advocacy connections between four expert members who participated in the World Summit on the Information Society (WSIS) and its follow-up meetings.[62] Informal communication across parliamentary groups was also important at times, particularly towards the end of a working group when such informal communication was used to do a number of things, such as form majorities for certain recommendations.[63]

[61] Cf. Interview with Jeanette Hofmann.
[62] The four expert members with WSIS background were Annette Mühlberg, Markus Beckedahl, Alvar Freude and Jeanette Hofmann.
[63] Cf. Interview with Jeanette Hofmann.

IV. Decision-Making Structures

The basic rules for participating and voting in Enquete Commissions are specified in the Rules of Procedure of the German Bundestag. However, every Enquete Commission may add its own rules and specifics. In the case of EIDG, these included the decision whether or not meetings should be held in public, the number of working groups, the implementation of an online participation tool, and that there should be a Wifi connection available during plenary and working group meetings.

In the EIDG, as in other Enquete Commissions, the degree of politicization increased before and during voting over working group reports. The working groups of EIDG generally produced their reports on a consensual basis.[64] This was particularly true for the first parts of the reports, which consisted of an assessment of the topics to be discussed. If conflicts arose in the working groups, they typically concerned the second part of the reports which included the conclusions and recommendations based on the preceding assessments. These conflicts mostly arose over issues that touched upon current political affairs and were therefore subject to political debate in the press and by the parliament. Thus, the line of division in the Enquete Commission usually ran between the ruling coalition group and their experts on the one hand, and the opposition groups and the respective experts. In cases of conflict, a majority vote of the EIDG plenary (needed to approve all working group reports) would decide over the text to be included in the report. Such plenary debates often resulted in crucial votes (“Kampfabstimmungen”[65]) so that EIDG members had to vote sentence-by-sentence on working group reports.[66] Dissenting opinions would also be included. Depending on their length, they would either be included in a footnote on the same page or in an annex.[67]

Although formally independent, many expert members were expected to vote in accordance with the parties that had appointed them. This was particularly true for expert members appointed by the governing coalition (Christian Democrats, Liberals). Various expert members criticized the political pressure exerted on them as this was perceived to run counter to the mission and principles of an Enquete Commission.[68] Expert members of the opposition parliamentary groups enjoyed considerably more freedom and in some cases led groups suggesting to others how to vote on specific reports.[69] An expert member appointed by the Liberal Party negotiated his dissenting votes on an individual basis.[70]

[64] Cf. Interview with Wolfgang Schulz.
[65] Cf. Interview with Wolfgang Schulz.
[66] Cf. Interview with Jeanette Hofmann.
[67] Cf. Interview with Jeanette Hofmann.
[68] Cf. Interviews with Jeanette Hofmann and Wolfgang Schulz; for opinions of other expert members, cf. among others: Statement by Prof. Dr. Hubertus Gersdorf in Final Report, p. 26; Statement by Annette Mühlberg in Final Report, p. 27; Statement Alvar Freude in Final Report, p. 28f., Statement by padeluun in Final Report, p. 31.
[69] Wolfgang Schulz, who was appointed by the Social Democrats, had such a role, cf. Interview with Wolfgang Schulz.
[70] Cf. Interview with Jeanette Hofmann.

V. Outcomes

On 18 April 2013, after almost three years of work, the German Bundestag acknowledged the Enquete Commission’s work by adopting its final report.[71] The output of the Commission was comprised of twelve reports from the twelve working groups, one progress report and one final report including an evaluation of transparency and public participation, as well as retrospective observations by all 17 expert members. All reports together contained several hundred recommendations on more than 1300 pages. Many EIDG members later expressed some regret about the EIDG’s overly broad focus. More profound results could have been achieved if the Enquete Commission had focused on a few core points rather than trying to cover all aspects surrounding the issue.[72] The evaluation of the reports, and thus the outcome of the EIDG, therefore has to take into account their double function. The first task of the reports was to assemble all relevant information on a given topic, describe the status quo, and do a deficit analysis (assessment report). The second task was to develop policy recommendations. Because Enquete Commissions in general comprise of non-elected members, the Bundestag’s administrative regulations limit these recommendations to general, instead of specific, policy advice.

Most of the twelve assessment reports were detailed and very comprehensive. Different viewpoints by EIDG members were included in the form of neutral descriptions so that readers were given the opportunity to form their own opinion on a given issue.[73] Achieving consensus on policy recommendations was the more difficult task. As noted above, votes were often aligned along partisan lines and therefore reflect the power balance of the German parliament, rather than the wisdom of EIDG’s expertise. The majority voting concerning policy recommendations has general repercussions for the legitimacy of an Enquete Commission. Ideally, an Enquete Commission should ground its judgments and recommendations primarily in its broad knowledge base; however, the reports mirror first and foremost the strength of the parliamentary groups.[74]

It is too early to assess the policy impact of the EIDG’s work. Since the Enquete Commission finished its work roughly six months before the federal elections, it is still unclear to what extent the new parliament will include the EIDG’s policy recommendations in its legislative initiatives. An obvious impact of the EIDG concerns is the increased relevance of Internet policies. Evidence of its political resonance can be found both in the new government program, which for the first time includes a “digital agenda,” and the constitution of a new permanent parliamentary committee concerning itself with the Digital Agenda.[75] The establishment of a parliamentary committee on Internet policies was a key recommendation of the EIDG.[76]

Having given center stage to Internet policy for the first time, the EIDG has furthermore increased public resonance. Their work led to a professionalization of, and further specialization within the German Internet community. Media coverage of this domain has also been greatly improved. The Commission’s work additionally brought to light linkages between different sub-themes of Internet policy.[77]

[71] Originally having planned to conclude in summer 2012, the German Bundestag extended the term of the EIDG until the end of the year 2012 as it had become obvious that the Commission would not be able to complete its work in the originally time frame due to the breadth and complexity of the topic, cf. Deutscher Bundestag. 2012. Antrag der Fraktionen der CDU/CSU und FDP. Verlängerung der Arbeit der Enquete-Kommission “Internet und digitale Gesellschaft”. Bundestagsdrucksache 17/9939, June 12, 2012. http://dipbt.bundestag.de/extrakt/ba/WP17/246/24667.html.
[72] Cf. Interview with Wolfgang Schulz; Statement by Annette Mühlberg in Final Report, p. 27; Statement by Markus Beckedahl in Final Report, p. 35.
[73] Cf. Interview with Jeanette Hofmann; cf. Statement Dr. Wolf Osthues in Final Report, p. 19.
[74] Cf. Interview with Jeanette Hofmann.
[75] The website of the permanent Commission Digitale Agenda is available at: http://www.bundestag.de/bundestag/ausschuesse18/a23.
[76] Jessica Binsch. 2013. "Enquete-Abschlussbericht. Netzpolitiker fordern Internet-Minister," Spiegel Online, April 18, 2013. Last accessed July 18, 2014. Available online at: http://www.spiegel.de/netzwelt/netzpolitik/internet-enquete-fordert-ausschuss-und-minister-a-895256.html.
[77] Cf. Interview with Jeanette Hofmann.

VI. Lessons Learned and Considerations for Future Organizations

An evaluation of the strengths and weaknesses of the Internet Enquete inevitably leads to ambivalent results.[78] The question is whether the Enquete Commission can be a model for gathering expertise and channeling it into decision-making bodies such as parliaments, regulatory agencies, or other multi-stakeholder bodies? We think some insights for other policy contexts can be gained from this case.

A crucial element for the work of Enquete Commissions is that they operate within the regulated framework provided by the rules of procedures of the German federal and state parliaments. These frameworks are both enablers and constraints; while they guarantee the necessary resources and the stability of the process, they also tie the work of the Enquete Commissions to the rationalities and dynamics of the parliamentary process. This ambivalent effect of the parliamentary framework also concerns the legitimacy of Enquete Commissions. As codified bodies of the parliament, Enquete Commissions enjoy an excellent reputation and the expertise involved has the potential to strengthen the legitimacy of policy programs based on its recommendations. At the same time, the Commission’s integration in the institutional structure and processes of the parliament represents a source of potential de-legitimization. This is particularly evident for the majority voting on working group reports. While the working groups were generally characterized by a spirit of fact finding and deliberation, the plenary meetings lacked this explorative, academic attitude and focused on the securing of a majority votes instead. This inherent hybrid between expertise-based and political power-based approaches resulted at times in feelings of unease among the expert members. This aspect also creates tensions in the architectural structure of Enquete Commissions per se and it may thus undermine the overall legitimacy of such bodies.

In our opinion, the aim of Enquete Commissions to gather high-level expertise on complex matters for future policy processes can be helpful in non-parliamentary contexts and should thus be transferable to transnational governance arrangements. To gain legitimacy, multi-stakeholder commissions modeled after German Enquete Commissions would thus have to secure sufficient resources and to create a reliable framework based on rules and procedures. Starting from this observation one can draw on related social mechanisms “that together constitute the core of most approaches to democratic governance beyond the state: inclusiveness, transparency, accountability, and deliberation”[79]. In the following, we adopt these criteria as an analytical frame of reference in order to identify best practices and take-aways from the successes and failures of the Internet Enquete by looking more closely at its composition, its applied processes, and finally at activities for translating its outcome into politics.

[78] There is no established mechanism that would enable Enquete Commissions to learn from each other and pass on lessons to future Enquete Commissions. Likewise, we do not know of any attempts to extract “take aways” from an Enquete Commission for other multistakeholder processes.
[79] Marianne Beisheim/Klaus Dingwerth, "Procedural Legitimacy and Private Transnational Governance," SFB-Governance Working Paper Series No. 14, June 2008, 12.

A. Integrating Expertise and Knowledge into Politics in an Inclusive, Fair and Representative Manner

1. Integrating Knowledge Across Heterogeneous Domains

Given its mission to bring together heterogeneous sources of knowledge and expertise for the purpose of enlightening decision-making processes, the general model of an Enquete Commission can be regarded as an effective mechanism for parliaments and possibly beyond. Without a doubt, the Internet Enquete provided a substantial grounding for the Internet policy field in Germany. Pooling information that reflected multiple disciplinary perspectives and professional experiences in one parliamentary body eventually led to a knowledge corpus that enables readers to grasp the Internet-society interface in its multiple facets. The output of the Enquete benefited from the great variety of experts among its membership, and also from the additional expertise integrated through hearings and public participation.

2. Identifying Future Policy Fields Beyond Current Controversies

This point goes back to the notion of the complexity of the issues that have shaped the work of the Internet Enquete. The combination of politicians, professionals, and academic experts proved to be most successful for those issues that had not yet been part of political controversies. The chances for success of a multi-stakeholder model for knowledge acquisition therefore increases with the distance of a given issue from actual management tasks or decision-making processes. This may sound as if Enquete Commissions are practically irrelevant for imminent policy challenges; this, however, is not the case. The experience of the Internet Enquete rather suggests that timing is crucial for the probability of useful outcomes. In order to be successful, Enquete Commissions should be established before governance issues have evoked ideological controversies. Enquete Commissions work best if all participants share the interest in understanding a complex matter and do not feel the need to follow pre-defined or anticipated party lines in how they go about this task.

3. Providing Equal Status Among All Members

Equal footing among all members is one of the constitutive principles of Enquete Commissions. However, the composition of its membership, as well as the political pressure on the voting behavior of expert members, does not do justice to this principle.[80] Although the Enquete Commission integrates external expertise into the process of political decision-making, it is designed in a way that clearly constrains the range of potential outcomes. Majority voting as practiced by Enquete Commissions is not adequate to come to agreements on policy recommendations. Instead of majority voting, other methods of consensus building should therefore be adopted for multi-stakeholder governance models. Voting should be replaced by deliberative procedures that consider all possible solutions to a given problem and assess them, for example, by means of cost-benefit analyses. In case of irreconcilable differences in opinion, Enquete Commissions should furthermore refrain from issuing policy recommendations and rather document their conflicting views as neutrally as possible. Such an evidence-based approach seems more suitable to multi-stakeholder environments that lack the legitimacy and representativeness of democratic constitutions. Expertise and sound processes of weighing different policy options can be an alternative source of legitimacy for transnational policy processes.

[80] Certain elements in the rules of procedure extend the imbalance between democratically elected and appointed members. For example, members of parliaments can be substituted by other MPs while expert members cannot. Also, the central role of the chairman is filled with a member of parliament representing the largest political group.

4. Maintaining Independence/Autonomy of Experts in their Contributions

The example of the Internet Enquete has illustrated a variety of relationships between appointed experts and the parliamentary groups that had nominated them. Although formally independent, expert members appointed by the governing parties were expected to vote according to political “imperatives.” While this may seem an extreme case, the interaction between (academic) expertise and the realm of political decision-making generally affects both parties, as many other studies show. While experts run the risk of becoming associated with specific political interests to the detriment of their reputation and the perceived quality of their work, decision-makers may lose credibility and legitimacy if they are suspected of soliciting allegedly independent but politically suitable expertise. Setting up an Enquete Commission may thus backfire for all parties involved if the rules that govern the cooperation are inconsistent or not properly implemented.

B. Deliberative Processes for Generating New Knowledge and Fostering Social Learning

1. Democratizing Political Decision Making Through the Generation of Knowledge

Public reflection on specific subject matters by means of assembling many experts, competencies, and perspectives facilitates the creation of a knowledge base, which can be considered the foundation for informed decision-making. In fact, spelling out various decision-making options, including their potential downsides and benefits, constitutes a prerequisite for democratic processes. All available information about a political subject matter should be arranged in such a way that the pros and cons are comprehensible to people involved or affected by subsequent decisions to enable meaningful participation and strengthen the democratic right of freedom of expression. Enquete Commissions are a powerful instrument to facilitate such processes.

It is probably fair to say that all members of the Internet Enquete and many of its observers substantially broadened their horizons and acquired considerable factual knowledge. The effort of coordinating dissonant policy perspectives and thereby questioning one’s own common wisdom has brought to the forefront policy options previously only considered by a minority of experts. Public hearings contributed significantly to this and in many ways moved relevant Internet-related expertise closer to the center of political decision-making.

The experience of the Internet Enquete shows, however, that the variety of perspectives and resulting recommendations loses addressees’ respect and appreciation when an Enquete touches on issues relevant to the day-to-day affairs of the parliament. More generally, opening up the process of knowledge creation is more likely to succeed for issue domains that are considered less relevant to current political affairs. Thematic working groups – the fair treatment of all perspectives and open debate on alternative policy options – became politicized later on in the Internet Enquete by tightly controlled majority voting. Put simply, the Internet Enquete saw two different logics and legitimacy concerns at work: the logic of gathering and integrating knowledge to enhance the quality of the Enquete’s output on one hand, and the logic of supporting and justifying certain political principles and courses of action on the other hand. The need to agree on political recommendations but also the increasing strategic political importance ascribed to Internet policies throughout its term made these logics clash and at times caused frustration among all parties involved.

The concept of deliberative democracy is based on the idea that the informed public discourse can legitimize political decision-making. The advocates of deliberative democracy highlight various democratic functions of public discourses, i.e. agenda setting, the identification of problems and the need for action, assessing the adequacy of political measures, and holding decision-makers to account. However, democratic procedures such as voting and parliamentary forms of representation often do not work outside of constitutional spaces; the question arises whether specific elements of deliberative democracy can help to compensate for these inherent democratic deficits in non-constitutional spaces.

Addressing problems of legitimacy and accountability in transnational and global governance, actors in global politics are seeking to institutionalize rules and practices for knowledge production and validation as a source of legitimate power in global decision-making. Following Clark A. Miller, this has resulted in the creation of international knowledge institutions, which “offer an opportunity to structure global politics so that it is determined not by the will of the most powerful but rather the outcomes of broad processes of deliberation informed by knowledge and reason.”[81]

Distributed governance bodies modeled after or drawing on aspects of Enquete Commissions might provide a path towards building democratic legitimacy in transnational governance settings. Transnational publics could be ideal laboratories for experimenting with approaches of deliberative democracy because they represent a unique combination of geopolitical and professional diversity of backgrounds and a relatively high degree of homogeneity in terms of their focus and expertise.

[81] Clark A. Miller, "Democratization, International Knowledge Institutions, and Global Governance," Governance: An International Journal of Policy, Administration, and Institutions, vol. 20(2) (April 2007): pp. 325–357.

2. Providing Sufficient Resources

Enquete Commissions have at their disposal a well-staffed secretariat plus additional staffers for each parliamentary group. Some of the expert members also relied on support for research and drafting. The secretariat considered itself neutral and did not pursue its own agenda.

Its professional attitude garnered trust from Enquete members and proved to be a critical enabler for the work of the Internet Enquete. For a distributed governance group such as the Enquete Commission to work well and to make the best use for subsequent decision-making processes, a highly skilled and committed secretariat is of utmost importance.[82] Notwithstanding the support by staffers, participation in Enquete Commissions is very demanding. It requires from their members, who typically already have busy schedules, significant commitments over a period of several years.

In order to enable public participation, several members of EIDG successfully advocated the use of the Adhocracy Platform. This collaborative software tool allowed interested observers to submit assessments or recommendations to working groups and, additionally, to rate those drafts by the members of an adhocracy group. The Adhocracy platform constituted an experiment in public participation that various EIDG members regarded with some skepticism. One concern was that introducing a participatory platform would promise a degree of inclusiveness to the public that may end up in disappointment. Indeed, the Adhocracy platform suggests a very low participation threshold, regardless of one's expertise. In fact, the public contributions to the working groups were of mixed quality and the adhocracy platform meant a rise of the workload for the EIDG members who needed to read all of the contributions and, in some cases, communicate with their authors. Nevertheless, the Adhocracy platform has the potential to enhance public participation in a meaningful way if the interface between the actual membership and external participants could be further developed. One promising option is to synthesize public contributions by means of a skilled facilitator who understands the issues and is committed to feed them in a neutral way into the working groups.

[82] Some members of the secretariat had academic training.

3. Compromising Between Degrees of Public Scrutiny

Although the Internet Enquete explicitly aimed to involve the public in its work, the results did not meet general expectations. The level of participation was lower than expected and integrating public contributions into the process of report writing ended up increasing the already heavy workload of the working groups. To a certain extent, integrating public contributions and running the working groups in an efficient manner constituted conflicting goals. The same can be said about transparency. The streaming of sessions enabled interested observers and the press to closely follow the process and benefit from the expertise brought together. At the same time, the public character of the plenary sessions and some of the working groups meant that the members of the parliament would be more guarded and the chances for mutual learning opportunities diminished. Paradoxically, transparency thus transforms the event that the public deserves to have access to. Finding a compromise between open and closed sessions should be a matter open to experimentation for future Enquete commissions.

C. Translation Into Politics

Whether and how far the commission’s work pays off in the long term has to remain an object of observation. Although the permanent Bundestag’s commission Digitale Agenda was institutionalized after elections in 2013, it remains unclear in how far decision-makers will capture results and recommendations of the Commission’s work in order to implement policy measures. Up to now, the Enquete process does not provide mechanisms for policy implementation. Nonetheless, finding the appropriate implementation mechanisms that will help inform evidence-based policy making and provide justification for spending further resources should be taken into account in the process design.