Harmful Provision Buried in National Defense Authorization Act (NDAA)
While some high-profile policy fights are playing out this week in the Senate on the National Defense Authorization Act (NDAA), a little-noticed provision was discovered in the NDAA that may prove harmful to intellectual property rights.
Buried in that bill is a provision that would change dramatically the way the Pentagon contracts with technology companies. Right now, tech companies that provide source codes for communication and management at the Department of Defense can keep those codes private. The NDAA would change that practice.
Specifically, Section 881 through 886 of Subtitle I of the NDAA changes the way the Pentagon develops and acquires software products from private entities. The change will compromise the American principle of protecting intellectual property and will forward the goals of some former Obama Administration staffers who want to continue Obama era policies of using open source technology for federal government systems. This provision is favored by progressives in Congress like Sen. Elizabeth Warren (D-MA) and holdover staffers from the Obama Administration. It is unlikely that Sen. John McCain (R-AZ), the manager of the NDAA bill on the Senate floor, even knows this provision has been snuck into the base text of the bill.
Source codes for a technology company are the company’s lifeblood. It is the reason why the companies exist and why they innovate. Without protection for the development of new source code intellectual property, there would be no incentive for future innovation and development. If the Department of Defense to moves forward with this policy, the best and brightest American tech companies will be tossed aside for insourced technology.
Think about how the government handled the rollout of healthcare.gov. That website was rolled out on October 1, 2013, and it did not work as promised. It was promised as a one-stop shop for individuals who lived in states that had opted out of the state exchange system.
Government bureaucrats mismanaged the rollout and ended up creating a website that barely worked. According to a Washington Post report from early 2016, although a private contractor was used, an internal report of the Department of Health and Human Services found that the government bureaucrats “failed to recognize the enormity of the undertaking, were disorganized” and “used poor contracting practices” that lead to the disastrous rollout. The decisions of government bureaucrats, not private sector contractors, caused the problem.
Mandating government access to a technology company’s privately developed source code will inevitably lead to a federal government that uses inferior technology. Companies will not share source codes, and technology development will migrate back into government entities. The Obama Administration set up the government tech entities 18F and the United States Digital Service to provide open source technology for use by the federal government. These two government entities have been accused of being non-responsive to the needs of different government agencies and wasting money. Despite the promise of an efficient government-run technology office, these two organizations in the federal government engage in slow and inefficient production of the technology needed to run the federal government.
Using open source for government computers will create another problem. It will make them vulnerable to cyberattacks. Because source codes would be centralized in the government, they would be easier to access by hackers. Another related problem would be that if the U.S. government is mandating that source codes are handed over, expect China and Russia to also demand source codes for any of the American based companies that operate in those nations to demand the same. Considering the lack of intellectual property protections in those nations, that would further deter private sector companies from contracting with the Pentagon.
This is just the beginning. If the Pentagon can set this policy, then expect the advocates of government-centered technology creation to have other agencies of the federal government make the same demands on private sector companies. This provision was little noticed until recently, and hopefully, sane minds prevail and remove this provision from the NDAA.
The NDAA provision is dangerous and will diminish the national security of the United States by using inferior technology, subject government computers to hacking threats and set a dangerous precedent for other areas of the federal government contracting. It would be hard to imagine that a Republican-controlled Congress and a Republican President would allow these Obama Administration created provisions stand.
Andrew Langer is president of the Institute for Liberty, a conservative public policy advocacy organization.