[License-discuss] [License-review] GDPR compliance through software license terms? (Re: Approval Request - ViraTrace Public Source License 1.0)

[Pamela Chestek]

Moving the conversation to license-discuss, since it's not about the 
terms of this license specifically but more generally about the 
intersection of GDPR compliance and software licensing.

Pam

Pamela Chestek
Chair, License Committee
Open Source Initiative

On 12/10/20 10:39 PM, Roland Turner via License-review wrote:
> Hi Wayne,
>
>> First, regarding rationale: Our company is in the business of 
>> creating frameworks and software products which facilitate automated 
>> contact tracing initiatives across the globe. These frameworks and 
>> products must be GDPR- and HIPPA-compliant and have been designed to 
>> be such, with strict, ongoing legal review processes undertaken to 
>> ensure this. The frameworks and products that we create are designed 
>> to be utilized by governmental agencies and private corporations in 
>> the creation of applications and platforms which aid in the fight 
>> against COVID-19 and future pandemic scenarios. In order for this to 
>> be of benefit, the frameworks and software we develop must be open 
>> source, so that the governmental agencies and private corporations 
>> can be free to utilize them. Unfortunately, due to the legal 
>> compliance issues vis-a-vis GDPR and HIPPA, a level of control 
>> regarding development must be maintained. It is our position that the 
>> GNU and other OSI-approved licenses do not provide this level of 
>> control.
>
> Others are addressing the appearance of a profound incompatibility 
> between what you're proposing ("free to utilise" vs. "level of control 
> [by Viratrace]") and the Open Source Definition.
>
> I'm interested in the concept of software license terms as an element 
> of GDPR compliance. Can you explain how you see license terms being a 
> relevant part of this? It is my understanding that data protection law 
> in most jurisdictions is about the legal obligations of organisations 
> in control of personal data both with respect to that data and to 
> people that it relates to (and often to regulators), and 
> legal/contractual obligations of other organisations processing that 
> data on their behalf; software licensors are not part of the picture. 
> As neither Viratrace nor likely licensees would be looking to 
> establish a controller/processor relationship[1] through the license, 
> the relevance is not immediately clear to me.
>
> (For a sense of where I'm coming from:
>
>   * Although this is my first ever post to license-review, I've been
>     involved in open-source license advocacy for rather a long time.
>     It was I who initially proposed late last century (!) a
>     multi-license approach for Mozilla.
>   * I serve as Chief Privacy Officer for my employer — a specialist
>     processor of personal data — and in that capacity have assisted
>     customers with data protection obligations across a dozen
>     jurisdictions on four continents.
>   * Although the specific concerns of Free Software are largely out of
>     scope here, I am an advocate of the approach and have spoken in
>     public about the overlapping objectives of Software Freedom and of
>     GDPR data subject rights.
>   * I am tangentially involved in Singapore's TraceTogether program as
>     an independent expert, both on the technology and on personal data
>     protection.
>   * I am working on a design for a system to extend TraceTogether
>     which coincidentally also uses secure enclaves, although for a
>     much simpler purpose that the one that you appear to be pursuing.)
>
>
> - Roland
>
>
> 1: nor the analogous relationships in other jurisdictions
>
>
>
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-- 
Pamela S. Chestek
Chair, License Committee
Open Source Initiative

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