Hello Dan,
The answer to your question appears to be "It depends on the
software".
Code of computer software being used by a government agency is not
specifically covered in the United States Freedom of Information Act.
These are the documents to which the FOIA specifically applies:
"§ 552. Public information; agency rules, opinions, orders, records,
and proceedings
(a) Each agency shall make available to the public information as
follows:
(1) Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public--
(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby,
the public may obtain information, make submittals or requests, or
obtain decisions;
(B) statements of the general course and method by which its functions
are channeled and determined, including the nature and requirements of
all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places
at which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing."
[...]
"(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying--
(A) final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register;
and
(C) administrative staff manuals and instructions to staff that affect
a member of the public;
(D) copies of all records, regardless of form or format, which have
been released to any person under paragraph (3) and which, because of
the nature of their subject matter, the agency determines have become
or are likely to become the subject of subsequent requests for
substantially the same records; and
(E) a general index of the records referred to under subparagraph (D)"
The Freedom of Information Act
5 U.S.C. § 552, As Amended By
Public Law No. 104-231, 110 Stat. 3048
http://www.epic.org/open_gov/foia/us_foia_act.html
By way of example, you may, under the FOIA, request a copy of a
document produced by the White House offices using Microsoft Word.
You may not, however, request to see the code for Microsoft Word,
because it is the intellectual property of the Microsoft Corporation,
and is protected by both US Copyright laws and the Berne Convention.
It is not a government record or public document.
It seems, however, that software actually produced by the government
*might* be examined under the FOIA:
"Imagine all the materials relating to cyber security that have been
obtained by groups such as EPIC over the last 10 years that the
government would have loved to have hidden: the Clipper Chip, Digital
Signature Standard, the Communications Assistance to Law Enforcement
Act (CALEA), Carnivore, FIDNet, and Echelon. FOIA was used to reveal
how these systems worked, and allowed for better informed public
debate on them. Would we really be better off if none of these
documents had been released?"
Reject the Corporate Secrecy Grab - Businessweek Online, January 29th,
2000
http://www.businessweek.com/technology/content/jan2002/tc20020129_6083.htm
On July 12th, 2000, the Electronic Privacy Information Center filed a
Freedom of Information Act request for all documents, including the
source code, of the "snooping" program developed by the FBI known as
Carnivore:
"On July 11, 2000, the existence of an FBI Internet monitoring system
called "Carnivore" was widely reported. Although the public details
were sketchy, reports indicated that the Carnivore system is installed
at the facilities of an Internet Service Provider (ISP) and can
monitor all traffic moving through that ISP. The FBI claims that
Carnivore "filters" data traffic and delivers to investigators only
those "packets" that they are lawfully authorized to obtain. Because
the details remain secret, the public is left to trust the FBI's
characterization of the system and -- more significantly -- the FBI's
compliance with legal requirements.
One day after the initial disclosures, EPIC filed a Freedom of
Information Act (FOIA) request seeking the public release of all FBI
records concerning Carnivore, including the source code, other
technical details, and legal analyses addressing the potential privacy
implications of the technology. On July 18, 2000, after Carnivore had
become a major issue of public concern, EPIC asked the Justice
Department to expedite the processing of its request. When DOJ failed
to respond within the statutory deadline, EPIC filed suit in U.S.
District Court seeking the immediate release of all information
concerning Carnivore."
Carnivore FOIA Litigation
http://www.epic.org/privacy/carnivore/
EPIC's suit resulted in the release of thousands of documents relating
to Carnivore - code documents were included, but were heavily
redacted. In some instances, there is only a section heading,
followed by an entire blacked out page.
You may examine the documents EPIC obtained here (litigation is still
ongoing):
Carnivore FOIA Documents
http://www.epic.org/privacy/carnivore/foia_documents.html
The Electronic Privacy Information Center has also been involved in
litigation demanding the release of source code and other materials
related to programs such as Echelon (the NSA's spy program), the
so-called "Clipper Chip" encryption initiative (which has been labeled
as "Classified" on national security grounds and currently out of
reach of the FOIA), and other cryptography and privacy issues. You
may see their entire litigation list, including documents which they
have won the release of, on their litigation page:
LITIGATION DOCKET
http://www.epic.org/privacy/litigation/
Nice to know we have an organization like EPIC looking out for us,
isn't it?
I hope you found this information helpful. If there is any part of my
answer which you find unclear, please don't hesitate to ask for
clarification. I'll be glad to assist you further.
--Missy
Search terms included: [ "Freedom Of Information Act" software "view
code" ], [ EPIC "Carnivore" ], [ EPIC FOIA ] |
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