[License-review] GDPR compliance through software license terms? (Re: Approval Request - ViraTrace Public Source License 1.0)
roland at rolandturner.com
Fri Dec 11 03:39:10 UTC 2020
> 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 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
* 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.)
1: nor the analogous relationships in other jurisdictions
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