Open Source Devs Reverse Decision to Block ICE Contractors From Using Software

Less than 24 hours after a software developer revoked access to Lerna, a popular open-source software management program, for any organization that contracted with US immigrations and Customs Enforcement, access has been restored for any organization that wishes to use it and the developer has been removed from the project.

The reversal underscores the inherent duality of open source development. The community's commitment to total freedom means that anyone can use the code as they please, even in ways that the developers might find repugnant. It's the price the community has accepted for the manifold benefits that open source software provides.

As Motherboard reported on Wednesday, open-source developer Jamie Kyle changed the terms of Lerna’s license so that any groups working with ICE would be barred from using the software. The modified version specifically banned 16 organizations, including Microsoft, Palantir, Amazon, Northeastern University, Johns Hopkins University, Dell, Xerox, LinkedIn, and UPS. Lerna was originally controlled by the MIT license, one of the most permissive open-source agreements.

Although Kyle acknowledged that it’s “part of the deal” that anyone “can use open source for evil,” he told me he couldn’t stand to see the software he helped develop get used by companies contracting with ICE.

Kyle’s modification of Lerna’s license was originally assented to by other lead developers on the project, but the decision polarized the open-source community. Some applauded his principled stand against ICE’s human rights violations, while others condemned his violation of the spirit of open-source software.

Eric Raymond, the founder of the Open Source Initiative and one of the authors of the standard-bearing Open Source Definition, said Kyle’s decision violated the fifth clause of the definition, which prohibits discrimination against people or groups.

“Lerna has defected from the open-source community and should be shunned by anyone who values the health of that community,” Raymond wrote in a blog post on his website. “The Lerna project’s choice is, moreover, destructive of one of the deep norms that keeps the open source community functional—keeping politics separated from our work.”

Raymond worried that if adding exclusions to open-source licenses became a commonplace it could create “tremendous uncertainty” about the ethics and legality of using the code.

There’s a great deal of uncertainty about whether Kyle’s code would have been legally enforceable. Daniel Stockman, who told me he has been the only active core contributor to Lerna for the past year, compared Kyle’s changes to a controversial license format created in 2002 by prominent developer Douglas Crockford.

Crockford’s license modified MIT’s by including the phrase “the software shall be used for good, not evil.” Crockford licensed a variant of the programming language JavaScript, which was hosted by Google until 2009 when Google decided it violated the definition of free and open-source software.

It also raised serious legal issues at IBM, which interpreted the clause as a restriction on the freedom to use Crockford’s language in its products. So when IBM lawyers reached out to Crockford asking him to create a special license to use his programming language, he did just that. The license read: “I give permission for IBM, its customers, partners, and minions to use JSLint for evil.” According to Crockford, IBM’s lawyers were satisfied with this modification.

On Thursday morning, Stockman removed Kyle as a contributor, and issued an apology for the changes. Stockman described the license change as a “rash decision” that was “unenforceable.”

As for why Kyle was removed from the project, Stockman cited “several past violations of [Lerna’s] code of conduct.”

When I messaged Kyle about being removed from the project, he was under the impression that Stockman’s discussion of the issue with “some Microsoft employees” was the impetus behind his removal, but Stockman disputes this characterization. He said he discussed the issue with Sean Larkin, a technical program manager at Microsoft and contributor to a large open source project called WebPack, but denied that Larkin’s connection to Microsoft was a motivating factor.

“An important thing to note about Sean is that he was a member of a large open-source project first, and then recently became an employee of Microsoft,” Stockman told me in an email. “I see his instinctive loyalties and energetic, constructive feedback to be aligned in the same direction: open source first, Microsoft second.”

The Lerna debacle exposes an emerging schism in the development community about the place of politics in open-source software development. As Gabriella Coleman, an anthropologist at McGill University, noted in a 2004 paper in Anthropological Quarterly, “political agnosticism” in the open-source software community has historically been one of its defining features and is arguably a key reason for its widespread adoption.

“It is felt that if Free Open Source Software was directed towards a political end, it would sully the ‘purity’ of the technical decision-making process,” Coleman wrote. Moreover, she argued that politicizing software is generally perceived by the community as curtailing its members freedom and is considered a form of censorship.

Ironically, the open source movement’s commitment to political neutrality ends up becoming a salient cultural critique in itself. As Coleman noted, open source software “inadvertently has become a vehicle by which to rethink the naturalness of intellectual property law” through its rejection of code ownership. It has accomplished this mainly through its reliance on open source licensing, such as Copyleft or the MIT license, which flip intellectual property rights on their head.

Seen in this light, the modification of Lerna's license fundamentally undermined the point of open-source software.

“I think developers can be activists, if they so choose, and I support tools and licenses designed to make this easier,” Stockman told me. “There are lots of reasons for contributing to open source, and I do not think we need more gatekeeping in the form of prescriptive decrees about what a ‘real’ open-source programmer looks/feels/acts like.”

Stockman emphasized that the reversion to the MIT license doesn’t amount to his support of ICE, an agency he described as “monstrous” and that “must be abolished.” But modifying the license won’t abolish ICE or hurt the companies that contract with them, he said.

“Open source, even in a project where there is only one active contributor, is never just about one individual,” Stockman said. “Community is paramount in an all-volunteer effort. Even acquiescence from multiple core contributors is not sufficient to justify a change like this, a controversial modification of the legal framework that in many ways makes open source ‘work.’”