Access to Source Codes for State Software. From Administrative Transparency to Digital Transparency

ABSTRACT Digital technology has transformed the way the public administration works. Numerous administrative decisions – such as the calculation of social benefits or the processing of building permits – are now made with the help of software that automatically incorporate the appropriate legal regulations. There is renewed discussion around transparency in public administration: citizens have a right to information, and should be able to access the computer codes used to reach a decision they are subject to. In this context, the opening up of source codes is vital to the smooth running of democratic administration, and for reinforcing user confidence in automated administrative decisions. Access to source codes contributes to the reconfiguration of administrative relations and accompanies the implementation of State software transparency. To gauge its scope, this article looks at the principles and legal regime governing access rights to the source codes of software used in public administration.

KEYWORDS Administrative Transparency - Access to Source Codes - Public Software - Algorithmic Explainability - Right to Information

TABLE OF CONTENTS 1. Introduction. – 1.1. Transparency, administrative democracy and access to administrative documents. – 1.2. Transparency and digital administration. – 1.3. Access to source codes of State software. Creating software transparency. – 1.4. Plan. – 2. The principles governing the opening up of the source codes of the software used in the public administrations. – 2.1. Accessibility of source codes, an important opening up of administrative action. – 2.1.1. The source code, an administrative document that can be communicated and disseminated. – 2.1.2. Aims of access to source codes. – 2.2. The explainability of source codes, a hermeneutic to perfect. – 2.2.1. The motivation for automating administrative decisions. – 2.2.2. Making the source code intelligible. – 3. The legal regime of access rights to the source codes of software used in public administration. – 3.1. The legal framework for access rights to source codes. – 3.1.1. The conditions on which access rights to source codes can be applied. – 3.1.2. Limits to exercising access rights to source codes. – 3.2. The development of digital commons to encourage the opening up of source codes. – 3.2.1. Definition of digital commons. – 3.2.2. Access rights to source codes and free software