Wheeler: ITAR typically no barrier to releasing government open source code

Antideficiency Act also no obstacle to adopting open source

Export control regulations shouldn't necessarily be an obstacle to the release of unclassified government open source code, said David Wheeler, a research staff member of the Institute for Defense Analyses. He spoke Oct. 15 during the Mil-OSS WG4 conference in Arlington, Va.

"If software is intended to be released to the public, you can ask the U.S. government department or agency to approve its public release," he said.

As a result, programmers wanting to release code back into open source communities need not necessarily get bogged down by applying for a license under the State Department-run International Traffic in Arms Regulations.

"If you determine that it's okay to release to the public, there is no more ITAR control," he added.

However, the review process to determine whether the code is releasable to the public isn't well defined, Wheeler acknowledged. "The law doesn't actually say. It just dumps the problem off onto the--the phrase they use is 'cognizant government official.'"

However, even that imprecise language still creates parameters, Wheeler said, since the official making the public release decision must be "cognizant" of the code--meaning that the decision of whether to release shouldn't be in the hands of officials too high within government hierarchy.

Reviewers can also look to the military control technologies list for export controls categories--and typically, the software that people release to the public as open source "is pretty obviously not a category."

When it comes to government utilization of open source, an objection brought up that the Antideficiency Act prohibits it is inaccurate, Wheeler also said.

The act, which first became law in 1884, prohibits the government from accepting "voluntary services," which on its face could seem to exclude open source code. But, the law distinguishes between "voluntary" services and "gratis" services and bans only the former. The law's prohibition on voluntary services comes from a 19th century practice whereby individuals would volunteer their services to the federal government, and then present a bill for them. But, if the government gains agreement ahead of time that a service won't be invoiced--i.e., is gratis--the Antideficiency Act exclusion no longer applies, Wheeler said.

As for what constitutes agreement ahead of time that code is gratis, Wheeler said it's a reasonable supposition that if people normally download code from a source and don't get charged for it, "it would be bizarre to think that the government couldn't do the same thing." Wheeler, who hastened to add he isn't an attorney, noted that misinterpretation, rather disagreement over what constitutes agreement ahead of time, is the typical Antideficiency Act-related obstacle.

Voluntary "has this weird technical meaning, dating from the 1800s," he added.

For more:
- download Wheeler's presentation from the Mil-OSS WG4 conference--filled with many useful references (.pdf)

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