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Netherlands: Participation app remains closed to the public

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The Dutch House of Representatives (Tweede Kamer) debates in public, as it should. But as not everyone has the opportunity to go to Den Hague and sit in the gallery, the Tweede Kamer released an app to follow the debates via livestream. Unfortunately, this app not is released under a Free Software licence. Our Dutch volunteer Jos van den Oever wanted to participate but was not able to run the app on his device and got active.

In principle, it is a good idea to create and use technical solutions to increase the transparency of parliaments. However, the implementation in the Netherlands with the Debat Direct app is the opposite, as the app is not accessible to everyone. With the Debat Direct app, citizens can follow parliamentary debates easily from everywhere – but not with every device. The app is only available in the Apple, Google, and Microsoft app stores and is not available under a Free Software licence. A similar functionality is offered in an online webapp. Our Dutch volunteer Jos van den Oever wanted to participate and use the app on his Firefox OS phone - a Free Software operating system for mobile phones - unfortunately without success. Therefore Jos tried to get the app's source code in January 2018 in order to make it also accessible on other devices. It turned out to be a long fight.

PMPC
Public Money? Public Code!

Request under PSI

The request for the source code invoked the Dutch implementation of the European Public Sector Information (PSI) directive (Wet hergebruik overheidsinformatie). The PSI directive allows public information to be requested in the original, reusable form in which it is present at the public institution. It is worth noting that the Parliament is exempt from Freedom of Information requests to make non-public information public, and so the PSI directive is only applicable if information is already public. However, for almost two decades now a large majority of Dutch MPs have been asking their government to use and publish software under a Free Software licence in order to give everybody the right to use, study, share, and improve the code. But so far Parliament has not led by example. Jos' request was not complied with; the code remained closed to the public. Jos did not give up and brought the case to court.

Reverse Engineering

Unfortunately the court did not agree with Jos and decided that source code is not the reusable form of software. However, most of the source code was made public on the website of the app as source maps. Jos wrote a script to save the js files from the source maps and managed to largely recreate the app from these files and reverse engineered build files. But even though Jos, and anyone else, may retrieve the source code, it remains without a proper licence; it can be studied, but not shared or improved.

Court Case

Jos appealed with the newly discovered source maps, which resulted in a hearing on 17 March 2021. Jos was the plaintiff at the hearing at the highest general administrative court in the Netherlands, the Administrative Jurisdiction Division at the Council of State (CoS). In the hearing, the Parliament argued that the source maps do not contain the source code, even though Jos submitted the source code that he extracted to the hearing. On 31 March 2021, the CoS ruled that Parliament does not have to publish the source code since, in their judgement, the source code is not public. So even though it is factually public, via source maps, it is not legally public according to the CoS judgment. In other words: it is not public because Parliament says it is not public.

As weird as that may sound, from a legal perspective the PSI directive does not apply to the Parliament and thus the app does not need to be made public. The bright side of the decision is that this does not say anything negative about the possibility of obtaining source code for software that is available publicly.

The FSFE therefore calls upon the Dutch Parliament to impose rules on itself, to act transparently, and to publish the source code of such applications under a Free Software licence in the future.

Here you can read more about the activity (Dutch): https://broncode.org

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