“Open by default” as law
EMBAG obliges the federal administration to publish all software under open source licences in future and to release government data as Open Government Data. The law thus leads to more openness and innovation and brings about a cultural change in the federal administration. Digital sustainability is also promoted through more “digital public goods”.
The Federal Act on the Use of Electronic Means for the Fulfilment of Public Authority Tasks (EMBAG) was passed by the National Council and the Council of States in March 2023 and is expected to enter into force on 1 January 2024. It is the new Swiss digitisation law for the central and decentralised federal administration, which lays down the requirement of “digital by default” (Art. 3) and creates the legal basis for other aspects such as standards, interfaces, interoperability and pilot trials (Art. 12 to 15). Of great importance are the new requirements for federal software and data. Firstly, EMBAG stipulates that in future the Federal Administration must publish programmes and modules developed by employees or external parties as open source software (OSS) (Art. 9). Secondly, the EMBAG requires the Confederation to release all government data that is not personal or security-related as Open Government Data (OGD) (Art. 10). These two “open by default” regulations introduce a significant paradigm shift towards more openness, transparency and practical reuse of software and data. For the federal administration and the economy, this results in numerous opportunities, but also some challenges.
Political background to the release of open source software
The political discussion on the publication of OSS by the federal administration is over twelve years old. The topic was initiated by the Federal Supreme Court in 2011. In order to enable other courts to use judicial software free of charge and thus save taxpayers’ money, the Federal Supreme Court published its court application OpenJustitia under an OSS licence at the time. This did not suit the Weblaw company, which wanted to sell its proprietary software to cantonal courts and therefore felt that it was being competed with by the Federal Supreme Court. In the following years, there were heated discussions, both through political initiatives and legal opinions, about whether and, if so, how the state should be allowed to release its own software under an OSS licence. Finally, both the lobbying work of the Parliamentary Group on Digital Sustainability (Parldigi) and the successful open source development practice of the IT industry led to the EMBAG not only allowing the release of OSS, but even providing for mandatory publication of the source code “unless the rights of third parties or security-related reasons would preclude or restrict this.” In future, therefore, all federal offices will have to deal with the publication of OSS – the worldwide requirement “Public Money, Public Code” will now be implemented in the best possible way in Switzerland at the federal level. At the same time, the OSS release is also advantageous for external IT service providers, as it allows them to continue using their software developed on behalf of the Confederation as OSS in other customer projects.
Why “by default” is important
It is still unclear which central requirements the federal offices must comply with regarding OSS. A practical guide to OSS in the federal administration has existed since 2020 and is managed by the Digital Transformation and ICT Steering (DTI) unit of the Federal Chancellery. However, the chapter “Release of OSS” currently states that the departments themselves are responsible for whether and how they publish OSS and cooperate with communities. This means that content-related guidelines and recommendations are now necessary as to how federal agencies must implement Article 9 of the EMBAG in future. The Canton of Bern is already further along in this regard. The cantonal ICT ordinance has already allowed cantonal offices to release their own software as OSS since 2018. Corresponding regulations and checklists for the release of OSS have also been accessible online since then. However, this Bernese regulation also shows that in reality only a few new OSS applications are released as a result, as only one application has been published on the GitHub profile of the Canton of Bern since 2018. The ratio of effort to benefit is apparently too small for individual authorities, and awareness of the overall economic benefits is still too low for administrative bodies to make the extra effort of their own accord and release internal applications as OSS. For this reason, the regulation “Open Source by default” in the EMBAG makes sense, because the authority is now obliged to implement this requirement – the OSS release becomes the new normality.
“Open Government Data by default
In addition to software, Article 10 of the EMBAG stipulates that federal data must also be released “by default” in future. Similar to the release of OSS, economic considerations and the promotion of innovation are also cited as the main motivation for this regulation. Here, too, Parldigi was active in the political accompaniment of the topic for many years. Although there was no direct political resistance as in the case of OSS, the Federal Council’s OGD strategies to date have not yet led to actual data releases at most federal offices. Only a few federal offices are currently represented with their own data on the opendata.swiss platform, even though over 9,000 data collections from the public sector are already linked on this metadata portal.
Thus, the “open by default” principle in EMBAG should also lead to a cultural change in OGD: In future, federal agencies will publish their data free of charge, in a timely manner, machine-readable, in an open format and reusable for any purpose (Art. 10, para. 4). In addition to OGD-specific challenges, these requirements also lead to general questions about data governance and data management. As is the case everywhere in everyday business, a lot of data is produced and used in the administration today, but it is often still unclear who is specifically responsible for which data collections in which form, where exactly the data is stored and processed or according to which overarching rules interoperability, data security and data protection are guaranteed. These and other challenges must be addressed in order to realise the professional release of OGD, but the corresponding know-how is often lacking. For this reason, the Federal Statistical Office (FSO), which is in charge of the project, has initiated intensive further training for state personnel so that knowledge and experience in handling data can be further developed.
The FSO is also home to the exemplary OGD office, which takes care of the operational and strategic activities regarding the release of federal data and also networks with the cantons and municipalities. In contrast to OSS, this clear institutional and personnel location of OGD at the FSO is an ideal starting point for the implementation of EMBAG.
What still needs to be done? And how are other countries doing it?
A good law is important. But what is ultimately decisive is its application in practice. As mentioned, the coordination of OGD activities in Switzerland is already well advanced, while the implementation of the OSS release still needs to be clarified organisationally and also financially. According to the OSS benchmark, numerous federal offices already publish a large number of OSS components and applications. However, this is currently still done in a completely uncoordinated manner by the respective federal offices. Practical support is needed here, because OSS publications often raise technical, organisational and legal questions. Thus, many institutions, such as the European Commission, have created a so-called Open Source Program Office (OSPO), which bundles the diverse aspects surrounding OSS in one organisation. A corresponding “federal OSPO” with the necessary resources and competences would therefore be desirable. This office could promote the exchange of experience, develop good practices, facilitate networking and, in particular, develop legally secured recommendations and criteria for the future procurement of software.
A look beyond national borders shows that not everything has to be reinvented. Germany, for example, has created Open CoDE, a national portal for the exchange of OSS for public administration. The federal government, several federal states and many municipalities have already published over 50 software solutions on the platform and are thus driving the development of a digitally sovereign workplace and other IT projects. Open CoDE is part of the German government’s digital sovereignty activities. A Centre for Digital Sovereignty was also founded in Berlin to serve as a bridge between the public administration and the open source commu- nities and is the responsibility of the Federal Government Commissioner for Information Technology.
In France, too, there has been a national initiative since 2021, CodeGouv, with numerous OSS applications, guides and discussion forums for the exchange of experiences and concrete IT solutions. With a budget of 30 million euros, one of the tasks of the French open source programme is to make the already more than 9 000 OSS repositories of more than 100 public authorities accessible on the online portal.
Digital Public Goods for more digital sustainability
In principle, freely usable software components and data fall into the category of digital public goods because they do not wear out (like physical goods) and do not exclude anyone (like private goods). This has been the basic idea of digital sustainability for many years. This concept places the release of digital knowledge in the context of sustainable development. The United Nations calls this form of knowledge sharing Digital Public Goods and founded the Digital Public Goods Alliance in 2019. It names OSS, Open Data, Open AI Models (openly licensed models of artificial intelligence), Open Standards and Open Content as concrete examples of Digital Public Goods.
In this respect, EMBAG provides a legal basis for the creation of more digital public goods. In this way, EMBAG not only provides an important digitalisation boost for more innovation and efficiency in the federal administration, but also contributes to sustainable development at the global level at the same time through the “open by default” mechanism. In this way, EMBAG ultimately also promotes the use of the potential for digital sustainability – a sensible and important task for the IT sector.