Lessons and examples from the new Swiss law and the need to adapt the Procurement Law to prioritize open source artificial intelligence systems in the Brazilian Government
In September 2023, Switzerland took a significant step in forwarding the use of open source software in the public sector with the approval of the Federal Act on the Use of Electronic Means for the Performance of Official Tasks (Bundesgesetz über den Einsatz elektronischer Mittel zur Erfüllung von Behördenaufgaben, known as EMBAG). This innovative law sets a new standard for transparency, explainability, and government efficiency in the digital age, strongly encouraging the adoption of open source solutions whenever possible.
EMBAG not only fosters the dissemination of the source code of software developed or contracted by the Swiss government, but also establishes guidelines for cooperation between different levels of government and with private entities in the use of technologies. The law addresses crucial issues such as interoperability, data sharing, and the creation of standards for source openness, establishing a regulatory framework that seeks to balance technological innovation with data protection and information security.
A notable aspect of EMBAG is the provision for a central repository for source codes, databases, and other resources, facilitating knowledge sharing between different government agencies and even with companies and entities in the private sector. This approach not only spurs on efficiency and the reduction of costs, but also fosters a broader and more inclusive innovation ecosystem, thus contributing to the continuous advancement and security of the state’s technological structure.
In the context of this significant change in Switzerland, it is timely to question how – and if – Brazil can be inspired and even go beyond foreign initiatives. As I proposed in the doctoral thesis I defended at PUC/RS and at the University of Granada (Spain), it is important to discuss the modification of the Brazilian legislation on public procurement and competitive bidding, in order to prioritize the procurement of open source artificial intelligence systems for the government.
Such proposal goes beyond the Swiss approach, as it suggests an even more proactive stance regarding the transparency and auditability of AI systems used in the government. The adaptation of the procurement law would require that all AI systems procured by the government be open source, except in the cases of urgent need and lack of open source options in the market.
In addition, another proposal that is important to discuss in the wake of what is provided for in Swiss legislation, is the development of a domestic repository of open source artificial intelligence models, allowing openness and access to all citizens, institutions and private initiative, in order to provide opportunities and facilitate all interested parties to follow up, review, and contribute to the models used by the Government.
The adoption of the open source strategy presents significant benefits that can be advocated from several perspectives. Firstly, it advances accessibility and transparency, by ensuring that the source code is available for critical assessment, facilitating the understanding of the fundamentals, elements, design, and functionalities of computational models. This enables a more effective public and private inspection of the systems used.
On the other hand, from an economic point of view, the implementation of an open source-based policy can result in substantial cost savings. The sharing of computational models between the different agencies and spheres of government avoids duplication of efforts and investments, allowing a more efficient allocation of public funds. In addition, it fosters greater collaboration in development, which translates into more security and lower cost for projects.
It is a fact that the implementation of such proposals will require a concerted effort between lawmakers, governors, public policy makers, and civil society. Ongoing dialogue will be required to address challenges and adjust initiatives pursuant to the project structure, size of objectives, and available funds. However, the potential benefits in terms of transparency, efficiency, and public trust make this effort worthy of development.
By adopting an open source approach to artificial intelligence within the government, inspired by the Swiss initiative but with a broader reach, Brazil has the opportunity to stand out as a regional and global exponent in algorithmic governance, applying artificial intelligence technologies in a transparent and responsible manner, and setting a new standard for digital compliance.
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*Edson Pontes Pinto, partner of Ernesto Borges Advogados. University Professor (Faculdade Católica de Rondônia). PhD in Legal Science (University of Granada). PhD in Law (PUC/RS). Master of Laws (PUC/SP). General Officer of ESA/RO (OAB/RO).
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