The Bay State Brawl

Is the Massachusetts open-standards debate the beginning of a national battle?

The state of Massachusetts' adoption of an open standards IT policy has uncorked a firestorm of argument over innovation, competition, and intellectual property rights. This isn't just a governmental turf war, or a simple case of proprietary versus open standards. It raises major questions about how (and if) government should make decisions about technology.

In late 2003, Eric Kriss, the budget chief appointed by Republican governor Mitt Romney, provoked howls of outrage, shouts of approval, and murmurs of confusion with a leaked memo outlining "a comprehensive Open Standards, Open Source policy for all future IT investments and operating expenditures." Was this an anti-Microsoft fiat, an admirably forward-looking proposal, or just a puzzling conflation of an interoperability protocol and a software movement?

That memo was quickly followed in January 2004 by a formal release of the policy and an Enterprise Technical Reference Model (ETRM). A final version of the ETRM was recently approved by the state.

The ETRM's recommendations include, among other things, that executive branch agencies move to Adobe PDF and open document format (ODF) as the standard for document storage and exchange. (ODF is approved by OASIS, a global standards consortium.) Executive branch employees must use office productivity software that natively supports ODF when saving or exchanging documents, although not when creating them., StarOffice, KOffice, and IBM Workplace fit the ETRM's requirements. Microsoft Office does not.

Microsoft proponents worry that small vendors will be shut out of new business opportunities with the state, and that small businesses and private citizens alike will be unfairly burdened by the new formatting requirements. However, the Information Technology Department (ITD)—the division of the state government charged with implementing the new policy—states that the policy applies only to the Executive Department, and that "the final ETRM applies only to documents that agencies create and save, not to documents they receive from third parties."

Confrontation and Concern
The most recent skirmish in this complicated and prolonged battle took place on October 31, when Democratic state senator Marc Pacheco's committee on Post Audit and Oversight held a three-and-a-half hour session to discuss the process by which the ETRM was approved. Nobody came away happy. Sen. Pacheco, who opposes the plan, outlined four areas of concern. First, he said the supervisor of public records, Alan Cote, did not believe the ITD had the authority to move forward unilaterally.

"We also found out for the first time that there was no total cost analysis done [when the policy was first issued in 2004] and the proposal they'd proffered for this hearing was significantly insufficient in terms of the data collected," Pacheco says. While the cost of procuring open source software might be negligible, other expenses (such as converting files and retraining Microsoft users) could be high. Or they could be low—nobody knows.

In addition, "the whole process issue was a major problem," due to the lack of involvement of other state agencies; and, last, the disabled community felt the policy represented "a step backward" for accommodations. He concludes, "It's about implementing a policy that very few people think is needed." On the other side of the discussion, Andrew Updegrove, an open standards proponent, writes in his blog that "the hearing was stacked against the positive." The only witnesses at the hearing speaking on behalf of the ITD were chief information officer Peter Quinn and ITD general counsel Linda Hamel, and there was no question-and-answer period for invited members of the public.

A Hasty Plan
At the hearing, even Quinn admitted that the ITD had to take a more serious look at how the new policy can accommodate the disabled. "Shame on me," he reportedly said, for not consulting with disability activists during the planning process. ITD's response to the concerns of the disabled, posted on the department Web site, suggest the outcry came as a bit of a surprise.

Representatives of the Massachusetts Office on Disability, the Bay State Council of the Blind, and the Disability Policy Consortium all testified at the hearing that ODF would adversely affect Massachusetts state employees with disabilities. Visually impaired people, for example, who use screen-reading programs that are interoperable with Microsoft software, have no ODF or PDF alternative.

As to Pacheco's worries about cost analysis, "I credit the argument that there are implementation costs," says John Palfrey, executive director of the Berkman Center for Internet & Society at Harvard Law School and a member of the Open ePolicy Group, which recently released The Roadmap for Open ICT Ecosystems.

Palfrey says the cost issue is an empirical question that can easily be answered. The larger question is, "should a state be in the role of choosing among vendors, if it comes down to that by means of choosing a standard for purchasing?" he asks. "If you adopt an open format ... will that be good or bad for choice, innovation, and interoperability?"

A Question of Choice
Microsoft advocates argue that "choice" means offering users a full range of technologies to choose from, both proprietary and open source. "Procurement neutrality, we feel, is always in the best interests of our government and private sector customers—allowing solutions to compete on their merits while giving customers the most choice and, ultimately, deriving the best value," writes Alan Yates, general manager of Microsoft, in an e-mail. Tim Bray, director of Web technologies at Sun Microsystems, countered in a recent panel discussion hosted by the Berkman Center that "Choice comes from standards. Choice comes from competition. Choice doesn't come from monopoly."

And it's true that Microsoft could put itself back in the running in Massachusetts if it agrees to support ODF. The company, however, has been reluctant based on issues of resource allocation, support, and fidelity with Microsoft formats.

The final version of the ETRM was approved by the state in September 2005 and is due to go into effect January 1, 2007. For now, the situation is at a stalemate until ITD addresses the concerns raised in the Post Audit and Oversight committee hearing. But with Democratic secretary of state William Galvin aligned with Pacheco and Cote against the ETRM, and with the new budget chief, Thomas Trimarco, taking a less active role than his predecessor, Peter Quinn is essentially the lone government advocate for the plan.

"It has been a profile in courage on the part of the CIO taking a very advanced policy stand on an important issue," says Palfrey. "The world is changing and policies like this, I hope, will reflect the best of that over time."

What's Really at Stake?
If this is a tale about technology, it is equally a tale about politics. Eric Kriss, the Romney administration's most vocal open source proponent, is a serial entrepreneur who founded Workmode, an open-source Web application development company in 1998. And the Boston Herald reported that, as of the time of the original leaked memo, Kriss remained on Workmode's board of directors and drove a Jaguar paid for by the company.

On the Democratic side, Senator Pacheco is up for reelection in 2006, and many speculate that Galvin might run for governor at that time as well. Add to this volatile brew the fact that Governor Romney might shortly announce his entry into the 2008 presidential race, and it's clear how this state debate might play out on a national stage.

"There are a lot of ramifications, there's no doubt about it," Sen. Pacheco says. "What does this say in terms of an administration's position on intellectual property rights?" He worries, for example, that emerging-technology companies with large investments in research and development will perceive that the state is hostile to proprietary technologies and take their business elsewhere.

"This isn't a startup business. We're talking about the government, where people ... depend on our systems to be secure. So if we're going to change what we're doing, we'd better be sure we know what we're doing, that the costs associated with it are well thought out," he concludes.

Palfrey observes that Massachusetts is "an aggressive state in respect to politics. [It] makes bold political statements all the time." That isn't necessarily a bad thing. "As Justice Brandeis said, states are the laboratory for democracy, and policies that are successful in one state will likely be adopted by other states. ... It could be a harbinger of things to come, and a 50-state fight."

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