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".

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: bosco, open source, publicly funded software, source code, spain


Reader Comments

The First Word

Speaking of copyright violations, 1984 would like a word...

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.

They call the agency involved in stonewalling requests and blocking the public from knowing what's going on the Council of Transparency and Good Governance? If they don't call their military higher ups the Council of Peace and Civil Discourse they've really dropped the ball.

However, according to the Spanish Transparency Law and the regulation of intellectual property, work carried out in public administrations is not subjected to copyright.

Which raises some unpleasant possibilities, none of them good.

Starting at the 'best possible' I can think of is that the code is garbage, they know it, and they don't want people to be able to confirm just what a mess it is.

Going down you've got the possibility that the code wasn't made by a government agency and they don't want people to know who it was that secured the contract to make it because of potential corruption concerns.

And down at the very bottom, based upon the large discrepancy between the numbers and who was fighting so hard to torpedo the subsidies from the get-go you've got a variant of the middle option, where the code was made by a company who just so happened to be heavily involved in the energy industry and therefore had a vested interest in excluding as many people as they could.

—That One Guy

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  • identicon
    Anonymous Coward, 27 Aug 2019 @ 8:29pm

    Rights? What are those?

    The government giveth and the government taketh away.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Aug 2019 @ 2:21am

      Re: Rights? What are those?

      The government taketh, and occasionally bribes people with their own money.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Aug 2019 @ 12:28pm

        Re: Re: Rights? What are those?

        Nah; it bribes people with YOUR money. The people being bribed already don't have to pay taxes.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 28 Aug 2019 @ 12:53am

    Speaking of copyright violations, 1984 would like a word...

    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.

    They call the agency involved in stonewalling requests and blocking the public from knowing what's going on the Council of Transparency and Good Governance? If they don't call their military higher ups the Council of Peace and Civil Discourse they've really dropped the ball.

    However, according to the Spanish Transparency Law and the regulation of intellectual property, work carried out in public administrations is not subjected to copyright.

    Which raises some unpleasant possibilities, none of them good.

    Starting at the 'best possible' I can think of is that the code is garbage, they know it, and they don't want people to be able to confirm just what a mess it is.

    Going down you've got the possibility that the code wasn't made by a government agency and they don't want people to know who it was that secured the contract to make it because of potential corruption concerns.

    And down at the very bottom, based upon the large discrepancy between the numbers and who was fighting so hard to torpedo the subsidies from the get-go you've got a variant of the middle option, where the code was made by a company who just so happened to be heavily involved in the energy industry and therefore had a vested interest in excluding as many people as they could.

    reply to this | link to this | view in chronology ]

    • icon
      Matthew Cline (profile), 28 Aug 2019 @ 2:49am

      Re: Speaking of copyright violations, 1984 would like a word...

      Or, in a combination of your first and third possibilities:

      The code was written by the government, but was purposefully written to exclude as many people as possible, and it's obvious that it was written for that purpose because the coders didn't bother to disguise it as garbage.

      reply to this | link to this | view in chronology ]

  • icon
    JdL (profile), 28 Aug 2019 @ 1:25am

    Whenever the government spends money on one individual and denies it to another, the reasons should be public knowledge.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Aug 2019 @ 3:28am

    Well, if you ask Elsevier, we don't even have the right to see publicly funded research without a university-level subscription.

    reply to this | link to this | view in chronology ]

  • icon
    BentFranklin (profile), 28 Aug 2019 @ 6:08am

    On the case of voting machine software, most definitely.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 28 Aug 2019 @ 7:55am

    What to do?

    "Do Citizens Have A Right To See The Algorithms Used By Publicly-Funded Software?"

    They should, but getting around the way authoritarian governments with undo amounts of self interest isn't going to be easy. Merely exposing those self interests won't be sufficient as those in authority tend to have thick skins, and a lot of denial. The question is, what will it take?

    reply to this | link to this | view in chronology ]

  • identicon
    Paul Brinker, 28 Aug 2019 @ 8:19am

    Someone who writes this kind of code

    As someone who writes this kind of code, a user readable version of the algorithm should be made available as a minimum for checking to see if it works. The public should be able to collect the same inputs and manually walk through the math to get the same result.

    They hate the idea of doing this because you can find weakness in the math, or bias based on income, or finding out your social program kicks people off the program for really stupid reasons. The more in the dark the public is the better for those dark secrets to stay in the dark.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Aug 2019 @ 12:09pm

      Re: Someone who writes this kind of code

      They hate the idea of doing this because you can find weakness in the math, or bias based on income, or finding out your social program kicks people off the program for really stupid reasons. The more in the dark the public is the better for those dark secrets to stay in the dark.

      It doesn't even have to be secret. Unnecessary complexity is a well-known pattern for keeping people from claiming benefits available to them, to reduce the costs. For example:

      • The IRS doesn't pay many of the credits people are eligible for, because they didn't know to claim it.
      • Traffic court hours are set up so people need to take a day off work. Cheaper to pay the fine.
      • Subsidized housing may require many forms and a long waiting list, so people end up in non-subsidized.

      If they release the code, someone could make the process easier. For example, they could make one site that checks your eligibility for every social program, and suddenly expenses will go up. Like when people made apps to auto-dispute property tax assessments and traffic tickets, and governments started complaining of lost revenue.

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 28 Aug 2019 @ 6:13pm

        Re: Re: Someone who writes this kind of code

        When I was working on one states benefits system, many of the items you remark about actully came up. I could get data directly from the state tax system and unemployment system, with this information I could vet newly unemployed and we'd quickly find and be able to help people before they may have known they could get help. This idea of course failed badly as there are actual laws saying we cant vet people this way and can at best advertise the fact that the system exists.

        reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 29 Aug 2019 @ 3:54pm

    Oops

    At first, I thought the headline read: “Do Citizens Have a Right to Sue Algorithms…”

    reply to this | link to this | view in chronology ]


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