TISA Agreement Might Outlaw Governments From Mandating Open Source Software In Many Situations

Since last summer, we’ve written a couple of times about TISA, the “Trade In Services Agreement” which is another secretive trade agreement involving a ton of countries, which will likely have an impact on the internet. There have been a few leaks of the various negotiating documents, and recently, WikiLeaks released a bunch more, including the e-commerce annex (though, it appears that a similar such copy leaked a few weeks ago as well).

Frankly, there’s plenty of stuff in the TISA agreement that I think would actually be good for the internet, including many of the provisions I would normally cheer on if they were being presented and debated openly. We can discuss the merits of various proposals, but only if the discussion is held openly. Unfortunately, like with the TPP and TTIP agreements, all of the details are secret other than through leaks — and as with some of those other agreements, the parties have agreed to keep all “negotiating” documents totally secret until five years after TISA is agreed upon.

So, even as I think there are ideas within TISA that actually are desirable, I can’t see any reason why the people negotiating it can’t make those arguments and positions publicly, and allow the public in on the debate. The fact that they’re being kept secret, even when they’re good ideas, makes me question whether or not they’re truly good ideas, or what sorts of stupid poison pills have been slipped in.

But one clause, in particular, found in the leaked version is immensely troubling, opening up the possibility of effectively banning many governments from requiring open source software for certain activities. That’s Article 6 in the latest leaked draft, which is text proposed by Japan:

Article 6: … Transfer or Access to Source Code 1. No Party may require the transfer of, or access to, source code of software owned by a person of another Party, as a condition of providing services related to such software in its territory.

2. For purposes of this Article, software subject to paragraph 1 is limited to mass-market software, and does not include software used for critical infrastructure.

Now, this is nowhere near complete — it is “bracketed text” which is still being negotiated, and Colombia already opposes the text. Also, some may argue that the second bullet point, which says it only applies to “mass market” software and not “critical infrastructure” software solves some of these issues. Finally, some might argue that this is reasonable if looked at from the standpoint of a commercial provider of proprietary software, who doesn’t want to have to cough up its source code to a government just to win a grant.

But, if that language stays, it seems likely that any government that ratifies the agreement could not then do something like mandate governments use open source office products. And that should be a choice those governments can make, if they feel that open source software is worth promoting and provides better security, reliability and/or cost effectiveness when compared to proprietary software. That seems tremendously problematic, unless you’re Microsoft.

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