French "Digital Republic" Bill : Accessible Source Codes, under Conditions, and Free Software Only Encouraged

Paris, July 11th. Press release.

The Joint Commitee (a body of 7 members, one from each parliamentary chamber) for the French “Digital Republic” bill held a conclusive meeting on June 29th, adopting a joint text. In this document the Commitee confirms that source codes of publicly financed software programs are to be made accessible by default. Even if this accessibility is still restricted by a very broad exception in the case of a risk "to the security of the information systems of administrations". The Commitee also continues to maintain an "encouragement" to free software in public administrations; a provision that has no normative scope.

Article 1 bis : Accessible source codes, but an exception in the form of a blank check

The final wording of Article 1 bis holds that source codes of publicly financed software are accessible administrative documents. While it is true progress towards openness and transparency, the third paragraph creates an exception to this accessibity in case of a risk "to the security of the information systems of administrations". A disproportionate exception, which is anchored in the myth of security through obscurity and which risks gutting this clause of its substance.

Furthermore, the Commitee thankfully came back on an amendment adopted in the Senat that had created a general exclusion of specific source codes from the scope of the right of access. A dangerous exception against which had April warned members of both parliementary chambers.

We should also note that Article 1 ter, as written by the Commitee, enactes that communication of administrative documents in electronic formats is to be made "in an open standard, easily reusable and operable by an automated processing system". A welcomed provision that is all the more meaningful on the heels of the recent revision of the French RGI (general interoperability framework), in April 2016.

Article 9 ter : a "statement of good intentions" on free software

As soon as the law comes into force, administrations will have to "encourage the use of free software and open formats in the development, procurement, and use, in whole or in part, of these information systems". This provision demonstrates a striking lack of political reach, is devoid of normative scope, and is clearly not up to the challenges we face. Only a true priority to free software in public administrations can ensure both their technological independance and their sovereignty over their information systems. A priority that translates into an obligation to make an informed choice in favor of free licences, when possible, and according to objective criteria defined by decree.

Despite the quality of the debates on this article, both in the Senate and in the national Assembly, the Parliament and the Government wasted this opportunity to ensure that administrations have computing that they can trust and that is in the service of the public's interest.

The bill as drafted by the Joint Commitee is available (in French). The next step will be the reading of the Commitee's "conclusions" in the two parliamentary chambers preceeding the final vote on the bill. First before the national Assembly, on July 20th, then before the Senate, in the first half of september.

Articles 1 bis and 9 ter as they should be enacted (our translation) :

Article 1er bis

I. - At the second sentence of the first paragraph of article L. 300-2 of the French Code of relations between the public and administrations, after the word "forecast", the words "source codes" are to be added:

II. - The 2° of article L. 311-5 of the French Code of relations between the public and administrations is modified as follows:

1° At the end of section d, the words “or to the safety of of persons” are replaced by “to the safety of persons or to the security of the information systems of administrations”;

2° (new) Section g is written as follows :

“g) To the search and prevention, by the competent services, of any and all legal offense;”

Article 9 ter

Administrations as defined by article L. 300-2 of the French Code of relations between the public and administrations shall ensure the control, sustainability, and independance of their information systems.

They encourage the use of free software and open formats in the development, procurement, and use, in whole or in part, of their information systems. They encourage the migration of all the components of these information systems to IPV6 protocol, when compatible, as of January 1st, 2018.