The Digital Republic Act n°2016-1321 was promulgated and officially published on October 7th, 2016. [3] This law confirms that source codes of publicly financed software programs are to be made accessible by default; it, however, still leaves accessibility restricted by a very broad exception in the case of a risk "to the security of the information systems of administrations", and adds an explicit provision that free software be "encouraged" in public administrations—a provision that has no normative scope. The promulgation of this Act is also an opportunity to recall April's campaign.
Article 2 : Accessible source codes, but an exception in the form of a blank check
Article 2 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 [4] and which risks gutting this clause of its substance.
Furthermore, the Joint Commitee (a body of 7 members, one from each parliamentary chamber) 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 3 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 2
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 L. 300-2 of the French Code of relations between the public and administrations now provides :
Article L300-2
Are considered as administrative documents, pursuant to sections I, III, and IV of this Book, whatever their date, place of conservation, or form might be, the documents created or received by the State or by local authorities during the exercise of their public-service mission, as well as by the documents created or received by any other public-law or private-law entities entrusted with such a mission. Such documents include, but are not limited to, records, reports, studies, reviews, minutes, statistics, instructions, bulletins, ministerial notes and replies, correspondance, opinions, forecasts, source codes, and decisions.
[...]
Abstract of article L311-5 of the French Code of relations between the public and administrations:
[…]
Are not disclosable:
[…]
2° The other administrative documents that would be jeopardized by consultation or disclosure:
[…]
d) The safety of the State, public safety, the safety of persons, or the security of the information systems of administrations
Article 16 : 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.
Article 16 :
Article 16
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.
April's Campaign around the French “Digital Republic” Bill
In 2013, through the Higher Education and Research Act, the French parliament enacted legislation that for the first time gives priority to free software [5]. April took an important part in these debates and, while the organization was very pleased by this favorable vote, it stated that this was only a first step in a process that ought to be generalized by true public policy in favor of free software.
The public consultation
April started taking part in the preparatory work on the “Digital Republic” bill as soon as the online public consultation [6] organized by the French government was taking place, in September and October 2015. This was the first time a governmental bill was subject to public review and proposals prior to its presentation before the Council of Ministers. The dedicated platform enabled individual citizens to formulate their opinion. Despite its limitations, it was an opportunity to express one's views on each topic, to propose amendments to the text and even new articles.
In order to promote computing that users can trust and that is at the service of the general good, we suggested two amendments to the bill's draft text: source code of publicly financed software should have the status of accessible administrative documents [7] and free software should have priority in public administrations [8].
The result of the consultation showed a clear and deep-rooted trend in favor of free software [9]. Among the ten most voted proposals, several were related to the use of free software. Our proposal that priority be given to free software ranked 3rd and our proposal that “software source code be an accessible administrative document” came in 7th place.
The bill
However, ignoring this expression of citizen involvement, the bill presented for debate before Parliament incorporated none of these proposals. The government made only hazy declarations of intent and vague and noncommital promises that would do little to encourage the use of free software.
As a result, April campaigned for the incorporation of its proposals in the bill : we met the rapporteurs for the bill, both at the National Assembly and at the Senate; we met members of the Parliament, both senators and deputies, to raise their awareness and bring them to vote for, or even introduce, amendments in favor of the right to access the source code of publicly financed software, and amendements in favor of giving priority to free software in public administrations. April also contacted the elected representatives and called on every citizen to do the same.
Source codes as accessible administrative documents
This work led the National Assembly to adopt, in January 2016, against the government's position, an amendment that adds source code to the list of accessible administrative documents. Sadly, this principle of accessibility was quickly restricted. First, by the creation of a new exception — introduced in the Assembly and confirmed in the Senate — in case of a risk to the security of the information systems of administrations. Second, by an amendment adopted by the senators, that excludes from the list of accessible documents the source codes of “public or private entities in charge of a public service mission in a field opened to competition”. This is the case of EPICs (public service companies with a commercial and industrial mission), like, for instance, in the field of public transportation, the French national railway company SNCF. During the debates in the Senate, April made an infographic document to support true accessibility to source codes [10]. It was conveyed to the senators and widely broadcasted through social networks. Let's hope that the meeting of the Joint Commitee (a body of 7 members of each parliamentary chamber) in June will lead to the removal of the latter exception. The first amendment, having been adopted with the same wording by both chambers couldn't be subject to modifications.
Priority to free software in public administrations
Several deputies introduced amendments supporting priority to free software in public administrations. To counter this proposal, the government argued that there was a “constitutional risk” on the basis of an alleged incompatibility between priority to free software and the principles of fair competition and of public procurement. April published an analysis demonstrating the legal validity of the aforementioned amendments [11](in French). Furthermore, the French National Digital Committee (an advisory body) explained in a synthetic document [12](in French) that giving priority to free software would not mean breaching either “technological neutrality” in public procurement or the competition rules of the European Union.
The government seemingly bases its position on a “legal note” from the Department of Judicial Affairs (DJA) of the French Ministry of Finance. April sent a written request to the government in order to have access to this legal note. This request remains as of yet unanswered. April then requested the document directly from the DJA. This request was denied on the basis of article L. 311-5 of the French Code of relations between the public and administrations and the quite vague exception of the “secret of governmental decision-making process”. Thus, the government refuses to act openly on this matter, despite the fact that transparency is a cornerstone of any democratic debate. April reacted by seizing the French Freedom of Information Commission (CADA). Our request was examined on April 28th, right after the debates in the Senate. We are still waiting for the Commission's, non-binding, decision.
It is to be noted that this very same DJA received a crash course in EU law by the administrative judge [13] who had ruled on the request of access to the source code of the income-tax calculator.
The Law Committee of the National Assembly adopted an amendment limited to encouraging the use of free software in public administrations. During the public session, several amendments were in favor of giving priority to free software. The elected representatives behind these amendments held a long and high quality debate (45 min.) to invalidate each and every objection raised by Axelle Lemaire (Secretary of State for Digital Affairs) and Luc Belot (the bill's Rapporteur). Despite this admirable plea and the support of several deputies of different political backgrounds, these amendements were rejected by a short margin.
The bill was then presented to the Senate in April 2016. Several senators introduced amendments supporting priority to free software. When it was examined within the Senate's Law Committee, the Rapporteur had an amendment adopted, that cancelled the article encouraging the use of free software on the grounds that it lacked the power of law enforcement. Though, the Rapporteur stated that he “shared the concerns of the article's proponents as regards the public administrations' control, and perhaps even sovereignty, over their information systems”. April also thinks that limiting oneself to “encouraging” the use of free software does indeed demonstrate a striking lack of political ambition and that this notion is devoid of any legally binding requirement. What is more, the Rapporteur might have given his preference to supporting priority to free software rather than leaving the article out.
Amendments supporting priority to free software were again introduced by senators from different political camps (Left and Right) for the public session. The public discussion lasted over one hour. Despite the general agreement on the strengths and benefits of free software, the senators went no further than reinstating an encouragement to free software, coupled with some vague objectives in terms of control and independence equally devoid of normative scope. Nothing other than a “statement of good intentions”, to cite a Senator in support of giving priority to free software.
It is a wasted opportunity for the French Parliament. April nevertheless welcomes this hour of debate, which gave free software proponents the opportunity to highlight efficiently the issues at stake and to expose why free software is a necessity. We feel like some progress has been made as regards free software, but regret that the Parliament members did not draw the logical conclusions. A day will come when priority to free sofware will be enforced by the law, as this is the course of history [14].