We are moving full-steam ahead into conference on the 2018 National Defense Authorization Act. Of the issues to be debated, a seemingly obscure provision regarding open source code has caused a massive stir.
The Senate included provisions intended to reduce costs by giving preference to open source software; unfortunately, open source software will end up costing Americans dearly in terms of dollars and national security.
In a letter to the House and Senate Armed Services Committees, Rep. Doug Lamborn (R-Colo.) noted that it is unwise to pass additional legislation before the Government-Industry panel on technical data rights has completed their review of sections 2320 and 2321.
Americans for Tax Reform and Digital Liberty agree with Congressman Lamborn, and express our concerns in a coalition letter signed by 10 conservative groups. Requiring the Department of Defense use open source code for unclassified software as the preferred programming source code will adversely impact intellectual property rights and violate long-standing technology neutral procurement policies. As a result, we conclude that striking sections 881, 883, 884, 885, and 886 of the Act is vitally important as this legislation moves forward.
Under the language in section 881 of the Act, companies providing software to the DoD must turn over source code in its original format. This requirement violates U.S. copyright laws, as well as the Trade Secrets Act by mandating private companies give up their intellectual property rights to work with the federal government.
Section 883 requires that software projects being developed to be obtained through the General Services Administration’s Technology Transition Service, even if a similar tool or resource might be available through the private sector. This is economically inefficient, as it outsources work to 200 federal employees rather than the thousands of private sector employees available to solve these problems. This ineffective action only perpetuates dangerous government policy in this area.
Preferring open source code also creates a likely “front-door” opportunity for our nation’s enemies to infiltrate some of our most strategic systems. Section 886 sets a precedent that could lead to other agencies using this open source model for all future software licensing, further endangering American IT systems.
Striking these sections from the NDAA should not be difficult because these provisions are not included in the House version. Removal of these sections and allowing the current panel review to continue is the right move for Americans on both a fiscal and national security basis.