The NDAA Threatens National Security, Intellectual Property

When House and Senate conferees meet this week to consider H.R. 2810, the 2018 National Defense Authorization Act (NDAA), they must eliminate several provisions included in the Senate’s version of the legislation that threaten national security and intellectual property. 

Title VIII, Subtitle I, “Development and Acquisition of Software Intensive and Digital Products and Services,” is ostensibly intended to improve information technology procurement at the DOD. Unfortunately, five sections of that title would have the opposite impact. In particular, they would harm taxpayers by promoting costly sole-source, government-based technology concepts over proven private sector solutions; threaten national security by recommending that the DOD use open source code for unclassified software as the preferred programming source code; weaken intellectual property rights; and violate long-standing technology neutral procurement policies.            

Section 881 violates both U.S. copyright laws and Trade Secrets Act, by requiring companies providing software to the DOD to turn over source code in its native electronic format to the agency. This should not occur without a substantive and serious debate in both the House and Senate.

Section 883 specifies how information technology (IT) projects within the DOD should be analyzed, designed, and procured. This section directs software projects currently in development but considered as “at risk” to be procured through the General Services Administration’s (GSA) Technology Transition Service, Office of 18F, even if a similar tool or resource might be available through the private sector. This type of short-sighted approach will clearly fail to improve the government’s management of IT acquisitions and operations, which is on the Government Accountability Office’s High Risk List. 

Regardless of the level of expertise of any federal operation, there should always be competition in the procurement process, particularly for the DOD. The Office of 18F was started in March 2014 by a group of Presidential Innovation Fellows supposedly to help improve and modernize government technology. This fledgling operation with approximately 200 employees scattered throughout the U.S. is highly unlikely to provide better software for the DOD than long-established private sector companies with tens of thousands of employees. 

The Senate modified Section 886 after the NDAA was agreed to on the floor of the Senate to clarify that those provisions of the bill exempt commercial off-the-shelf software from the open source code recommendations. However, Section 886 still requires the use of open source as the preferred licensing mechanism for future unclassified custom-developed software and related technical data. This preferred use of open source code could create a “back-door” opportunity for America’s enemies to attempt to infiltrate some of the country’s most strategic systems.

On July 1, 2004, the Office of Management and Budget (OMB) issued guidance consistent with OMB Circulars A-11 and A-130 as well as the Federal Acquisition Regulation stating that IT investment decisions are “intentionally technology and vendor neutral.” The document further stated that such decisions must conform to agency and federal enterprise architecture as well as consider the costs of security, privacy of data, and the system itself. By establishing open source software licensing as the preferred method for software licensing at the DOD, Section 886 not only violates that OMB guidance, it sets a precedent that could lead to other agencies using this as a model for all future software licensing. Congress should not effectively close DOD to any current or future software option that might better serve taxpayers.

On October 23, 2017, the Council for Citizens Against Government Waste and nine other organizations sent a letter urging the conferees to strike sections 881, 883, 884, 885, and 886 from the legislation, noting that these provisions threaten great harm. Failure to remove them would damage the procurement process, threaten national security, and weaken intellectual property rights.

Thomas A. Schatz is President of the Council for Citizens Against Government Waste.