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The Kaining of America

Would You Trust The Government With Your Intellectual Property?

The opinions expressed by columnists are their own and do not necessarily represent the views of

Businesses are more than happy to do business with the federal government for many reasons: 1) they pay well; 2) they always pay, and 3) doing so contributes a service to the country. While the first two points, from a business standpoint, are most important, it’d be foolish to discount the third. Yes, there is a lot of waste in government, but there is also a lot of necessary and good done by it as well, particularly in the national security realm. And that important area is where our government could soon shoot itself in the foot if it doesn’t back off a plan to force companies to surrender proprietary intellectual property as a cost of serving the country.

The National Defense Authorization Act for Fiscal Year 2018 passed in the Senate this week. A friend who works on national security issues the other day told me about a provision buried in Title VIII, Subtitle I (it’s a very long bill, as you’d expect) called “Development and Acquisition of Software Intensive and Digital Products and Services.” He explained to me how it threatens our national security by disincentivizing companies from performing important work for the government on our behalf.

It may not seem like much, but the provision completely changes the way that software is sold and designed for the federal government and exposes intellectual property source codes of tech companies.

Tech companies aren’t particularly popular right now, and not without cause. You can’t turn on the news without hearing some story of how Google is strong arming organizations and other companies to bow to their will, or how social media platforms are imposing their left-wing speech codes to punish conservatives who refuse to toe the liberal PC line. But technology, like it or not, plays a very important and ever-increasing role in our national security.

Should this provision become law, it would, at a minimum, give tech companies pause about performing important functions for our government, and at worst have many top firms simply bowing out of the business altogether. That later option could leave huge gaps in security, both in gathering and analyzing important data.

Yes, Facebook and Twitter are obnoxiously preachy and intrusive when it comes to politics, but the tech world is much more than just them. It’s companies you’ve likely never heard of creating software you’ll likely never use as an individual to aid the national security community who keeps you from ever hearing about the important work they do.

The software they write is not just for national security data analysis, however. The business world has much need, and gains immeasurable benefits, from analyzing consumer and economic data as well. So the product of these companies has multiple uses and is, therefore, very important intellectual property. That the government would attempt to codify into law a provision that would essentially require companies to surrender that intellectual property to the government would mean many companies simply would stop doing business with them.

Just to be clear, we’re not talking about the government buying the license to use software, we’re talking about the government requiring these companies to turn over to the government the code that created the software. It’d be like requiring Kentucky Fried Chicken to give you their list of 11 herbs and spices before you’d order them for your company picnic. KFC wouldn’t do that, and neither would these companies.

The risk to the companies, quite frankly, it too high. We’ve all seen the leaks coming out of all areas of government since the start of the Trump administration. If people sworn to serve and maintain the confidentiality of classified material have the New York Times on speed dial, it’s not too much of a stretch to imagine someone with access to the source codes of important and valuable software sticking a flash drive into a computer and shifting to a very lucrative job in the private sector with a company very interested in such information.

Moreover, given all the breaches of government data in the last few years, companies would be required by the government to trust their intellectual property, which is oftentimes their only service, to an entity that has demonstrated no ability to protect such information. 

The National Defense Authorization Act, in one form or another, will end up becoming law. For the sake of our security and the integrity of private intellectual property, the provisions threatening those in the Development and Acquisition of Software Intensive and Digital Products and Services provision should be stripped from it first.

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