EU data watchdog raises concerns over Microsoft contracts
reuters.com
reuters.com
What if the entire machinery known as "State" (govs, senates & assemblies, justice, agencies) realized that the logical long-term choice is to develop and maintain open-source software for pretty much anything they do, so as to effectively 1. enrich the 'national' or 'regional' wealth of all citizens and 2. contribute to technology in a historical way?
Nuance: I'd qualify the whole endeavor a 'mildly massive untertaking', it's not a switch but a decade-long effort. Bigger than the longest of usual "LTS". But the benefits, in terms of saved money (lower taxes?), quality of service (if any citizen can participate, whether as programmer or writer or evangelist or trainer or whatever), security (I'd wager there'd be enough eyeballs to proof this software), and probably 50 other externalities, like massive general training / jobs, better technical expertise of many state workers at every level, possible service to citizens (switching them off the customer status in some domains critical to democracy, especially when it's free thus they are the product), yadi yada.
The State could be an excellent digital host for itself, and a great steward for its population, if it addressed the technological matter in a professional way, with the right heart and the right mind.
If executed superbly, it could qualify as some "8th wonder", the first digital and truly collective one, to ever be built. A true hallmark of the 21st century. And we can all, all of us worldwide, participate to make a master; then proceed to fork based on our local systems —political and technical— and cultural preferences.
I hope I do not have to explain why I'm a little jaded, a feeling of too much deja vu and not enough 'tomorrow', when I read such ethical yet misguided fights. /understanding rant
EU, you have your heart in the right place, your ethics are fair and much needed in this world, but at our current pace your solutions seem ancient —so 20th century. Think 2030+ now and begin building long-term, towards a definitive solution. Move the needle, redefine things, fail/break the old stuff to make room for contemporary greatness. OSS for public software is a low hanging fruit, however giant, and you'll do the world a fantastic service worthy of your wealth and values.
Source of ideas: I am a concerned French citizen, and being born some 10,000 km away gave me a wider-than-Western-EU perspective of modernity, for some 37 years and counting.
> The State could be an excellent digital host for itself, and a great steward for its population, if it addressed the technological matter in a professional way, with the right heart and the right mind.
Given my past experience, that's a very big if, unfortunately. :-(
The idea that governments' actions should strive for some more idealistic goals isn't entirely wrong. But then again: why should we expect less from private citizens and corporations? They are just as much part of society, have rather more power to influence the software market, and tend to have more money to spent (I've recently seen a government office still using CRT).
But mandating open standards: yeah, totally.
Relevant buzzwords: State as an Open-source Service (StaaOS)
I share your concerns for gov efficiency; a common reasonable idea seems to make a "hybrid institution" e.g. create an independent agency run by citizens, with a governance model a la NGO / not-for-profit.
An ideal management, imho, would involve various 'captains' of the tech industry (I'd say there's a pool of at least 10,000 people fitting that bill on earth today, i.e. ~1 per mil., and I'm possibly low-balling it by orders of magnitude). The structure should definitely be mission-driven (probably architected much like a business). Several countries enjoy great success (in quality, cost, etc.) with such types of agencies.
It's easier to defend a huge company like SAP, MS or ... than an unknown underdog. Even more so when that big corp often invites you to tech nights and similar learning opportunities whereas small opensource projects have no marketing budget to swoon, wine and dine those consultants.
Governments cannot discriminate, which is the fastest way to trial product - targeting your most fertile customers and adapting. Therefore, they will be locked into massive waterfall-style design.
Governments cannot ignore edge-cases.
It makes it really hard, though I’ve noticed that lots of new gov.uk stuff and things like Id.gov are pretty good.
1. EU members signed contracts with Microsoft 2. EU changed the law 3. Contracts are not following the law.
Seems like a great way to have your cake and eat it too. Don’t like the contracts? Change the law (because you have the power to do so). Seems like something a dictator would do.
They've yet to deliver on that announcement but that seems more like the usual delays than willful obstruction.
Are these contracts signed before GDPR? Signed after?
Is there some part of the EU that you can submit a contract and that they go thru and raise any compliance issues that you should change? Or is it, do you best, and possibly get a knock on the digital door by the EU at a later date and a backdated fine?
Hard to form any opinion about this without knowing when the contracts got signed (by both parties) and how changes in law affect existing contracts from an accountability aspect (good/bad faith) on both sides.
https://europa.eu/youreurope/business/selling-in-eu/public-c...
"If your company, organisation or institution is established in the EU (In this case, the 28 EU member states + Iceland, Norway and Liechtenstein.), you have the right to compete for a public tender in any EU country. You have the right to:
compete for a public tender in another EU country without discrimination use supporting documents (certificates, diplomas, etc.) issued by your country have equal access to all information regarding tenders, regardless of the EU country in which you are established have access to the review procedures in the respective country"
That last one implies that equally access to review procedures in EU member states must be available. That would cover contracts and with that, raises more questions about the accountability of this.
But my takeaway is, if Microsoft can have a contract questioned at a later date, how exposed are smaller companies in the same vain.
It's more a matter of: If you push your legal rights in such a contract to the absolute limits, well, you may run into some issues later on when laws change.
If you're a tiny company but you put maximum onerous one-sided rules in your contracts, AND you somehow have the government you're selling to by the short and curlies so they sign it anyway, yeah, this view of 'eh, microsoft has got it coming' would imply this small company is now on the hook for keeping a team of lawyers on the ball.
That seems fair to me.
In real life, there's no way a small company would even go for such a pushed contract in the first place, or if they did, that's because they messed up by copying the wrong contract text, or there's a big brother helping them out.
Or, perhaps said simply: If this notion of 'oops the rules changed right in the middle of the contract, that is not fair!' becomes relevant, they probably were.. NOT acting in good faith in the first place.
That assumes a benevolent government. Rules can change because of balance-of-power shifts, or as a result of misinformed debates.
If you do business in a heavily-regulated economy like Europe, part of the cost of doing business is legal and compliance. This is a valid tradeoff the Continent has made. It makes many consumers and workers happy while adding fixed costs to commerce.
that's true in any jurisdiction, right? Laws and regulations can always override contracts.
What varies is how easily new rules can be introduced, how easily they can be challenged, and the number of entities with rule making power.
Broadly speaking, Europe's systems make it easy for rules to be introduced and hard for them to be struck down by a competing arm of government. There also tend to be more regulators with independent rule making authority in Europe than in America.
This derives, fundamentally, from differing levels of trust in government, and differing views on the scope of government's job.
It is not like that governmental agencies are making up rules.
I was making a broad statement about rule making processes in the Europe (EU and member states) versus Europe. That said, GDPR is independently interpreted by each of the EU's member states. It is a complain-investigate regime that does not bind one member state to the other's precedents. That's a lot of leeway for regulatory variance.
Still, I do not see you go from that to "[it is] easy for rules to be introduced and hard for them to be struck down ".
edit: remember, the alternative is 28 potentially incompatible rules.
For small companies not engaging in anything specifically nefarious (i.e. Cambridge Analytica) the real danger is really rather limited. If you read https://europa.eu/youreurope/business/dealing-with-customers..., which should take about 10 minutes, you will understand enough about the requirements to stay clear of any danger.
One common complaint is that the law isn't very specific. It sets out principles more than checklists. That is unfortunately necessary because it's impossible to anticipate every set of circumstances individually, and because technology is a fast-moving target no specific requirements ("use md5 hashing") could keep up with.
Yet if you've understood those principles ("don't collect data you don't need to provide the actual service/product the customer is buying" etc) and strive for the spirit of these rules you shouldn't have any problems.
Why would that matter? If the law changes, contracts may have to be updated. Microsoft is large enough to be in the "should have known the changes were coming, and should have acted upon it" camp.
"Is there some part of the EU that you can submit a contract and that they go thru and raise any compliance issues that you should change?"
Yes/No. On the one hand: NO, just like with (almost) all other laws and regulations in any government (or, for that matter, companies. You can't ask Apple or Google whether doing X will get your app on the App Store, for example). Allowing that would be impractical, as governments would be overwhelmed by entities looking to find exactly how far they can go before they get 'caught'.
Also, there's the "Separation of Powers" thing (https://en.wikipedia.org/wiki/Separation_of_powers). That brings me to the YES: on the other hand, there is: https://en.wikipedia.org/wiki/Test_case_(law). It will cost you money, but, if you do it right, less so than when you go in full.
Also, the ones to be fined, if any, in this case likely also, and maybe more so (as a, perhaps somewhat bad, analogy, there's nothing wrong with a North Korean company applying for some US defense contract; companies hiring them to do the work would be in the wrong) would be Microsoft's customers. Many of them also are large enough to be in the "should have known the changes were coming, and should have acted upon it" camp.
Sometimes laws might explicitly grandfather previous arrangements or provide transition periods, but that's not a given.
In the case of GDPR, of course grandfathering would render the law moot, but it did take many years from the law passing to becoming effective.
To make an example which is relevant to our field, if a law is passed making non-compete invalid, would you expect it to only apply to new contracts?
If slavery were legal today and abolished tomorrow, you couldn't keep your slaves just because they were signed into indentured servitude before the law came into effect.