Use of free software in public agencies

The Congressmen of the Republic addressing this Bill, EDGAR VILLANUEVA NUÑEZ and JACQUES RODRICH ACKERMAN making use of the legislative faculty granted by the article 107DEG of the Peruvian Constitution, present the following bill:

USE OF FREE SOFTWARE IN GOVERNMENT AGENCIES

EXPOSURE OF REASONS

The complexity of the world we're living in demands permanent review and constant adaptation of its institutional framework to be up to date with the current technological trends that the world imposes.

The discovery of new informatic technologies and among them, the Free Software one, has become an ideal instrument to assure the preservation of the State's data.

In this way technology fulfills its role of easying the different and multiple human activities, being one of them, the handling of public information.

According to the Peruvian Constitution, in section 5 of article 2DEG, "all persons have the right to solicit information that one needs without disclosing the reason, and to receive that information from any public entity within the period specified by law, at a reasonable cost. Information that affects personal intimacy and that is expressly excluded by law or for reasons of national security is not subject to disclosure".

Section 6 of the same article emphasizes the right all persons have "to be assured that information services, computerized or not, public or private, do not provide information that affects personal and family intimacy".

Having said so, it's obvious the concern of our Constitution for establishing institutional bases that protect the citizens' freedom to information access and the non-disclosure of information that affects personal and familiar intimacy, likewise for reasons of national security.

The guarantee of these rights in our Constitution isn't solely based in the good will of the State's agents to fulfill the norms of the Constitution, but also by the use of technologies that in some cases contribute and in others do not, to an effective protection of said citizens' rights.

It's in this context that it's of utmost importance for the State the incorporation of those technologies that help to reinforce the exercise of the citizens' access to information and it's due reserve in cases that require so.

The use of Free Software in all of the State's agencies points in this way. Basically we can say that the fundamental principles that drive the present Bill are tightly related to the basic guarantees of a democratic State and we can sum them up in the following:

   * Free Access of the citizens to public information
   * Perenniality of public data
   * Security of the State and of the citizens 

To guarantee the citizens' free access to information it turns out that it's undispensable that the coding of the data isn't tied to a sole provider. The use of standard and open formats assures this free access, making possible the creation of compatible software.

To guarantee the perenniality of public data, it's undispensable that the use and maintainment of software do not depend on the good will of the providers, nor of monopolic conditions, imposed by those. Systems whose evolution can be guaranteed by the availableness of source code.

To guarantee national security it's vital to have systems that are devoid of elements that allow remote control or the transmission of non-desired information to third-parties. So, it's required to have systems whose source code is freely accesable to the public, so that it's inspection is allowed to the State, the citizens and a great number of freelance experts in the world.

This proposal provides more security, because the knowledge of the source code will eliminate the growing number of programs with spyware.

In the same way, this Bill furthers the security of the citizens, both in their condition of legitimate holders of the information handled by the State as in their condition of consumers. In this last case it would allow the growth of an extensive supply of free software devoid of potential spyware that makes it possible to jeopardize the private life and indivual freedoms.

The State, looking to improve the quality of public administration as both keeper and manager of private information, will establish the conditions in which agencies of the State will acquire software in the future, that is, in a manner that is compatible with the constitutional guarantees and basic principles previously stated.

The project clearly states that a any given software in order to be acceptable for the State must not only be technically adequately to carry out a given task, but must also fulfill some requisites in license matters, without which the State could not guarantee the citizen the adquate process of his data, looking over for their integrity, confidentiality and permanent accessibility, all of which are critical elements for its fulfillment.

The State establishes conditions for the use of software by the agencies of the State, without meddling in any way in the transactions of the private sector. It's acknowledged that the State does not have the ample spectrum of contractual freedom that the private sector has, because it is restricted due to the requirement of transparency of all public acts, and in this sense the common benefit must be the leading factor to take into account when legislating over this matter.

The project also guarantees the principle of equality before the Law, because no natural or legal person is excluded of the right to purvey those goods, under the conditions stated in this Bill and without any more limitations than the ones that are established in the Bill of Contracts and Acquistions of the State (T.U.O. Supreme Decree NDEG 012-2001-PCM).

Additionally to these advantages we could highlight benefits that would begin to show up as a consequence of these measures, immediately after being carried out.

To begin with, there are the job opportunities for local programmers. Of the universe of server software commercialized in the U.S.A. over the last year, the 27% belongs to "free" software, a truly significative portion for that huge and competitive market. The number speaks for itself and constitutes a firm answer to those who would think that free software would imply a hefty limitation to the employment of programmers of the country. On the contrary, the inititative will allow the release of a great amount of resources, and an enticement to propel human creativity.

By making use of free software, professionals can analize the root of the problems and improve the development in whatever cases are necessary, nurturing from the globally available free software, under different licenses. It is an ideal area to employ creativity, an aspect in which young peruvians would be able to reach good levels.

On the other hand, by means of the free software we get rid of illegal software that grazes in some agencies of the State. The non-allowed use of software inside the State or the mere suspicion of it are a powerful incentive to make any given public employee modify this situation that goes against intelectual property.

Even though it is correct to say the adoption of free software is not necessary to abide by the law, its use will reduce drastically the irregular ocurrences and will act as "medium of legal infection", both in the State as in the private sector.

We can count many countries that are formally acknowledging an exclusive use of Free Software in the public sector.

Among them we have France, where a legal norm about this subject is on debate. The government of the city of Mexico (DF) has already started an importan migration to adopt free software in a general way, being this country leader in the western world. Also Brazil, the state of Recife has ruled its adoption. The Popular Republic of China has been using free software for several years as a policy of the state, likewise in scandinavian countries. In the U.S.A. both the NASA and the U.S. Navy among other organizations have adopted free software for some of their needs, as have also done so other governement and private entities.

Finally, the project grants the execution of this law to the Presidency of the Council of Ministers for being this organism the one that concentrates the direction of all government institutions. In this sense it has an strategic advantage to carry on the given reform and the migratory process of propietary software to free software.

COST BENEFIT ANALYSIS

This initiative does not imply any expense to the national treasury. However, for the fulfillment of its objectives it will be necessary to make a reassignment of the governmental expenditure whose incidence confines itself to what is effectively expended by each governmental organism in the processes of contracts and bids of the State for the acquisition of software.

Even if it is true that free software when compared with propietary software represents a substantial saving to the economy of the State, it is not the central point of support of this Bill. As we made a point before, its advantage focuses on the technological reassurements that the program conveys to the information that the State handles, information that in many instances is of a reserved nature.

In this sense a better protection of the citizens' rights constitutes an unmeasureable benefit that must be taking into account from the cost benefit analysis point of view. We can sum up the benefits of the project in the following topics:

National Security

The State, so it can carry on with its tasks must store and process information related to the citizens. The relationship between the individual and the State depends on the privacy and integrity of this data, which must be adequately kept against three specific risks

Disclosure Risk, the confidential data must be handled in such way that the access them is made possible only to authorized persons and institutions.

Risk of impossibility of access, the data must be stored in such way that the access to them by authorized persons and institutions is guaranteed for all its period of usefulness.

Risk of handling, the alteration of data must be restricted, again only to those authorized to do so.

With free software all this risks are considerably attenuated.

It allows the user to make a complete and exhaustive inspection of the mechanisms that are used to process data. The fact that free software allows the inspection of its sources is an excellent security measure because having the mechanisms exposed to the eyes of trained professionals makes hiding malicious functions inside them exponentially more difficult, even if the end user does not take the time to search for them by himself.

Technological Independence

With propietary software there is no freedom of contract in the aspects of extension and correction of the system in use, a technological dependence is forged, one in which the provider is in the position of ruling, one-way only, terms, deadlines and costs.

Free Software entitles the user with the freedom to control, correct and modify the program to suit it better to his needs. This freedom is not aimed at programmers only. Even though they are the ones who can take advantage of it first-handedly, the users benefit greatly too, for in this way they can hire any programmer (not neccesarily the original author) to correct given errors or add functionality.

Cost of software

It is greatly reduced, because being free there is no need to ask for additional licenses to continue using the program. This happens with propietary software. It is important for the user to be able to keep these costs under control, because if he cannot, he might be impeded to further carry on with his goals, binded by non planned occurences. Here is again the technological dependence that rivals free software.

More work sources

With free software handwork that was chained as a consequence of the technological dependency of the State to propietary software is freed. Now user resources (in this case the State agencies) will be assigned for maintenance and support of free software.

Creativity and managerial booster

Costs

The big cost that is involved with the change from propietary to free software is limited to the migratory process. Even if its true that the migratory process involves costs in studies, decision making to implement the new systems, handwork to implement the change, data conversion, retraining of personal and eventually expenses in licenses and/or development and time; its no less certain that all these are fixed costs and are payed only once, propietary software has its costs too, which were payed and which cannot be gotten back. But aside from this costs there are others involved with propietary software: permanent actualizations (some times reinforced by a self-supported monopoly) and above all the huge price for the State that is the loss of the freedoms that guarantee the control of its own information. These costs are permanent and with the passage of time, sooner or later exceed the fixed costs of carrying out a migration.

To sum it up, the benefits of the migratory process exceed its costs.

INCIDENCE OF THE NATIONAL LEGISLATION NORM

The following project does not affect any law over whose matter there is no given legislation By the previously exposed and considering:

That sections 5 and 6 of article 2 of the Constitution protect the citizens rights to info rmation as they also give the sufficent guarantee to efficiently protect the non-disclosure of information when the law so states it.

That being free software the most suitable technological medium to protect the afore menti oned acts, it is imperative that the State use in all its agencies said system.

In consequence, having abliged by that established in the 75th article of the Congressional Regulation, the following Bill is proposed:

Legal Formula

The Congress of the Republic: Has given the following USE OF FREE SOFTWARE IN GOVERMENT ANGENCIES LAW

Article 1 - Object of the law

Employ exclusively free software in all the systems and computer equipment of every State agency.

Article 2 - Scope of Application

The Executive, Legislative and Judicial branches as well as the autonomous regional or loc al decentralized organisms and the corporations where the State holds the majority of the shares will use free software in their systems and computer equipment.

Article 3 - Authority of Aplication

The authority in charge to execute the law shall be the Council of Ministers.

Article 4 - Definition of Free Software

Free Software shall be defined for the effects of this law, that whose license shall guara ntee the user without additional cost the following:

Unrestricted use of the program for any purpose.

Unrestricted access to the respective source code.

Exaustive inspection of the working mechanisms of the program.

Use of the internal mechanisms and arbitrary portions of the software, to adapt them to the needs of the user.

Freedom to make and distribute copies of the software.

Modification of the software and freedom to distribute said modifications of the new resulting sofftware, under the same license of the original software.

Article 5 - Exceptions

Given the case where no solution which uses free software exists, that could satisfy the d etermined necesity, the State Agencies could adopt the following alternatives adhering to their order:

If verifiable time restraints should occur in attending a technical problem and propietary software was found to be available, the organism that needed it could negotiate a permit o f exception before the competent authority to utilize proprietary software that has the following characteristics:

The programs shall comply with the stipulants afore-mentioned in section 4 of the law, except for the free distribution of the modified program. In such a case the permit of exception could be definitive.

If the no programs of the preceeding category were available, those that exist in an free project of advanced development shall be chosen. The permit in this case shall be transitory and will automatically expire when the free software becomes matures with the functionality that is necessary.

If no products could be found that met these conditions, then propietary software could be used, but the demanded permit of exception from the competent authority will expire automatically two years after it was issued, having to be renewed prevous establishment that a satisfactory solution of free software was not available.

The competent authority shall emit a permit of exception only if the State organism guarantees the storage of data in open formats, without prejudice of payment for the proprietary licenses.

Article 7DEG. - Transparency of the exceptions

The exceptions that originate in the authority of a given application must be sustained and published in the website of the State's Portal

The resolution that authorizes the exception must ennumerate the functional requirements that the program must fulfill.

Article 8DEG. - Exceptional Authorization

In case some State agency can't fulfill its requirements with software stated in article 2DEG of this law then it is authorized to acquire propietary software to store or process data which must be kept in reserver, the respective authority must publish in the State's portal an inform where the risks associated with the use of given software for a particular application must be explained.

The exceptional permissions granted to State agencies related with security and national ddefense are exempted from the previously stated obligation.

Article 9DEG. - Responsabilities

The maximum administrative authority and the technical and informatic authority of each agencie of the State assume the responsability for the fulfillment of this law.

Article 10DEG. - Ruling Norm

The executive branch of the government will rule within a 180 days deadline, the conditions, deadlines and forms in which the current status quo will be changed to one in which satisifies the conditions of this law, and will guide, in that sense, all future contracts and negotiations for software acquisition.

In the same way, it will direct the migratory process of the propietary software systems to free software ones, in every case where the given circumstances so demand.

Article 11DEG. - Glossary of Terms

Program or Software, to any sequence of instructions used by a digital data processing system to carry out an specific task or to solve a given problem.

Execution or use of a program, to the act of using it on any digital data processing system to carry out a function.

User, to that natural or legal person that makes use of the software.

Source code, or source code program, to the complete set of instructions and source digital files created or modified by those who programmed it, plus all the support digital files, like data tables, images, specifications, documentation, and any other element that is necessary to create the executable program. As an exception, all those tools that are usually available as free software in other media may be be excluded, for example, compilers, operating systems and libraries.

Free software or program, to that which use guarantees the user, without further cost, the following:

Unrestricted use of the program for any purpose.

Unrestricted access to the respective source code.

Exaustive inspection of the working mechanisms of the program.

Use of the internal mechanisms and arbitrary portions of the software, to adapt them to the needs of the user.

Freedom to make and distribute copies of the software.

Modification of the software and freedom to distribute said modifications of the new r esulting sofftware, under the same license of the original software.

Propietary software (non-free software), that one which does not fulfill all the requirements listed in the previous statement.

Open format, any manner of digitally coded information that satisfies both existant standards and the following conditions:

Its technical documentation is publicly available.

The source code of at least one complete reference implementation is publicly available.

There are no restrictions for the creation of programs that store, transmit, receive or access data codified in such way

     Notify the Sir President of the Republic for its promulgation.

     Lima, 9th of April of 2002