Do Citizens Have A Right To See The Algorithms Used By Publicly-Funded Software?
from the public-money-means-public-code dept
In 2009, the Spanish government brought in a law requiring electricity bill subsidies for some five million poor households in the country. The so-called Bono Social de Electricidad, or BOSCO, was not popular with energy companies, which fought against it in the courts. Following a 2016 ruling, the Spanish authorities introduced new, more restrictive regulations for BOSCO, and potential beneficiaries had to re-register by 31 December 2018. In the end, around 1.5 million households were approved, almost a million fewer than the 2.4 million who had benefited from the previous scheme, and a long way from the estimated 4.5 million who fulfilled the criteria to receive the bonus.
The process of applying for the subsidy was complicated, so a non-profit organization monitoring public authorities, Civio, worked with the National Commission on Markets and Competition to produce an easy-to-use Web page that allowed people to check their eligibility for BOSCO. Because of discrepancies between what the Civio service predicted, and what the Spanish government actually decided, Civio asked to see the source code for the algorithm that was being used to determine eligibility. The idea was to find out how the official algorithm worked so that the Web site could be tweaked to give the same results. As Civio wrote in a blog post, that didn’t go so well:
Unfortunately both the government and the Council of Transparency and Good Governance denied Civio access to the code by arguing that sharing it would incur in a copyright violation. However, according to the Spanish Transparency Law and the regulation of intellectual property, work carried out in public administrations is not subjected to copyright.
Civio was not the only one to have problems finding out why details of the algorithm could not be released. The non-profit research and advocacy organization AlgorithmWatch also asked several times exactly whose copyright would be violated if the source code of the governmental BOSCO software were shared, but without success. The fact that code, apparently public-funded and thus not subject to copyright, is nonetheless being withheld for reasons of copyright, is one unsatisfactory feature of the BOSCO saga. Another is that secret government algorithms are being used to make important decisions about citizens. As Civio says:
“Being ruled through secret source code or algorithms should never be allowed in a democratic country under the rule of law,” highlights Javier de la Cueva, Civio’s lawyer and trustee, in the lawsuit. “The current interpretation of the law by the [Council of Transparency and Good Governance] will allow public administration to develop algorithms hidden from public scrutiny,” he warns. For this reason, we appealed the refusal of the Transparency Council before court.
There is another issue beyond the lack of transparency of governmental algorithms that impact people’s lives. Supporters of open access rightly point out that it is only fair for the public to have free access to academic research they have paid for. Similarly, it seems only fair for the public to have free access to the source code of software written and used by the government, since they have paid for that too. Or as a site created by the Free Software Foundation Europe on precisely this issue puts it: “If it is public money, it should be public code as well“.