[Off-Topic] The Damn Regulation Law Is Back!

Update 09/08/2009: A brief mention in a Yahoo! News story on this subject.

Update 08/26/2009: Excellent historical analysis of a good legislative proposal that had already been rejected once, via Gizmodo

Update: 08/25/2009: I just added a long argumentative text about the Law in this article.

It’s in the news:

The proposal that regulates the practice of the systems analyst profession was approved this Wednesday, the 19th, by the Senate’s Committee on Constitution, Justice and Citizenship (CCJ). The bill (PLS 607/07), authored by Senator Expedito Júnior, now goes to the Committee on Social Affairs (CAS) for a terminal decision.

Under the substitute bill previously approved by the Committee on Science, Technology, Innovation, Communication and Information Technology (CCT) and adopted by the CCJ rapporteur, Senator Marconi Perillo, only professionals with a university degree in systems analysis, computer science or data processing will be allowed to practice the systems analyst profession.

I recommend everyone reread my article from last year on this topic. This law is a complete farce, created by this Expedito Júnior, embraced by this Marconi Perillo.

The Text of the Proposed Law

I decided to take a more detailed look at the text. The original proposal was the failed Bill No. 1,947 of 2003 by Eduardo Paes, which was, thankfully, shelved. Then, not satisfied, Expedito Júnior introduced the disastrous Bill No. 607 of 2007. I recommend everyone read the original version first, which can be downloaded as a PDF at this link.

The first review was by the Committee on Science, Technology, Innovation, Communication and Information Technology, published on 03/05/2008. The analysis isn’t entirely bad, but it has several flawed points of interpretation (I’ll reserve judgment on whether this reflects bad faith or laziness for a more careful read), in my opinion. For example, it first cites the opinion of the SBC — Brazilian Computing Society — which states:

According to information disclosed by the SBC itself, what matters in regulating the profession is the observance of certain principles such as the free exercise of activities related to the information technology field. Thus, no professional council should create any obstacle or restriction to the above principle, and the field should be self-regulated.

That’s correct — I think all professionals in the field agree with that — but the following paragraph contains a flawed interpretation (obviously made by someone outside the field):

In this case, that is not the issue, because art. 2 establishes that professionals “may” practice the profession of Systems Analyst, Computer Science or Data Processing, which greatly expands the possibilities for professional classification, covering practically all university courses in the information technology field.

To be clear, art. 2 states the following:

Art. 2. The following may practice the profession of Systems Analyst in the country:

I – holders of a university degree in Systems Analysis, Computer Science or Data Processing, issued by official or accredited schools;

II – graduates of foreign schools recognized by the laws of their country who have had their diplomas revalidated in accordance with current legislation;

III – those who, at the time this Law takes effect, can demonstrate that they have practiced the role of Systems Analyst for a minimum of five years

In other words, the interpretation completely excludes self-taught individuals and researchers who chose not to get a formal degree for various reasons (see my article Should I Get a Degree?). This article clearly excludes a large number of the most qualified professionals. Even item III doesn’t clarify what “demonstrated five or more years of practice” means. Does it refer to employment records? Does it refer to invoices to clients who purchased IT services? What are the criteria?

The analysis continues with the assertion:

Art. 4 of the bill, in establishing what the activities and attributions are, does not restrict the activities of other professionals. Nor is any exclusivity established or is it stated that any particular activity or attribution will be reserved for holders of degrees in the aforementioned professions.

Article 4 defines activities such as definition, management, coordination of software projects — including explicitly “coding.” That is, all the activities of project managers, architects, programmers and the like. And in the same article we have:

Sole paragraph. Technical responsibility for projects and systems for data processing, information technology and automation, as well as the issuance of technical opinions, reports or assessments, are exclusive to the Systems Analyst.

I may be misreading this, but it seems clearly exclusive to me and, once again, excludes the segment of self-taught programmers. And the analysis follows with a FUD:

One cannot imagine that the data processing center of a public body, financial system institutions, or even private companies could do without the technical accountability of a professional character, given the interface and synergy created with citizens, clients and consumers.

In my opinion, this is precisely the wrong justification being used in the vast majority of arguments in favor of the law: that a formally trained professional is necessarily far superior to a more experienced self-taught professional. And this is the entire basis of my argument in my article from last year on the subject. I recommend reading it carefully.

Not to say the analysis is entirely bad — at least the removal of the most offensive parts was suggested:

• suppression of articles 7 through 33, which create the Federal Council and Regional Councils of Informatics;
• exclusion, in item III of art. 2, of the clause “… and who must register with the Regional Councils of Informatics”;
• exclusion, in item II of art. 3, of the clause “… and who must register with the Regional Councils of Informatics”;

So, the reason for all this uproar was the approval in the Committee on Constitution, Justice and Citizenship, published on 08/19/2009. The proposal was accepted with all the modifications suggested by the Committee on Science, Technology, Innovation, Communication and Information Technology listed above.

Fortunately, the suppression of articles 7 through 33 was maintained:

… there is unconstitutionality of a formal nature in the provisions dealing with the supervision and exercise of the profession, as well as the registration of professionals and the payment of fees … These articles are therefore tainted by unconstitutionality, since parliamentary initiative to create public bodies and assign them functions is prohibited, by virtue of the aforementioned provision of the Constitution …

To be clear, this removes the chapters that define the oversight bodies, the Federal Council of Informatics, the Regional Councils of Informatics, provisions on Professional Registration and Oversight, on Annual Fees, Emoluments and Rates and, finally, Infractions and Penalties. These would have been the most harmful parts if implemented. I hope they stay out.

The Seventh Element

Since 08/20/2009 the substitute bill has been in process awaiting a rapporteur at the Committee on Social Affairs, where it can be approved or shelved. The way things are going, it looks like it will be approved without major problems, which is terrible!

My arguments in the article Let’s Stop the Regulation from last year still hold. Despite the removal of the articles creating the entire governmental bureaucratic machinery and penalties, it’s still a very bad law for the entire market. Worse, art. 7 of the current substitute bill makes me very uneasy:

Art. 7. The Executive Branch will be responsible for supervising and overseeing the practice of the Systems Analyst profession, and for the registration of IT professionals.

This replaces articles 7 through 33 with a single article that defines nothing and leaves completely open and arbitrary what the Executive will do in terms of supervising and registering professionals. In other words, everything that was removed is still implicitly valid.

This article didn’t exist in the 2008 version from the Committee on Science, Technology, Innovation, Communication and Information Technology. It was the only thing added in the version approved by the Committee on Constitution, Justice and Citizenship on 08/19/2009 and is, in my opinion, the thing that most regressed this text. The report reads:

On the other hand, to give viability to the objective of this initiative, we also wish to add an article aimed at delegating to the Executive Branch the function of deliberating on the matters dealt with in the articles suppressed herein. Thus, we accept the Substitute offered by the Committee on Science and Technology, with the addition of a provision.

Conclusion

If the Committee on Social Affairs approves this law, it will be an enormous setback for the national IT market. This law has the potential to be even more destructive than the market-reservation laws for IT from the 1980s, which left us almost a decade behind the First World in terms of modernization.

As the SBC already mentioned, this market should be free and self-regulated, which it already is in practice. There is no need whatsoever for regulation of this nature. As I’ve said before, we can discuss a more realistic text. But this particular text is far too harmful to be considered. It needs to be completely rewritten by experienced professionals active in the field, together with the entire new generation of developers.

I know of no parallel to this law anywhere in the world (I ask that if anyone does, please comment on this article). It effectively restricts the activity, starting from the wrong premise that formally trained professionals are necessarily better than self-taught ones, which is, from personal experience, very false. In reality, some of the best people I’ve worked with over these past 15 years had no formal degree.

The vast majority of people in favor fall into two categories: those who have read the proposed bill and its proceedings, and those who haven’t. Those who haven’t simply don’t know what they’re talking about.

Those who have read it and still agree are precisely the bad professionals who can’t compete with self-taught people, wanting to use only the force of “credentials” as the criterion. This market self-regulates as bad professionals are naturally pushed out, moving increasingly into lower-value activities. There’s also a confusion between the careers of “coder” and “developer.” The former is a commodity that closely resembles a typist, simply trying to translate diagrams and requirements into code with no attention to quality. A developer, on the other hand, is a born architect, with total control over their creation. The former is a commodity; the latter is the “cream of the crop,” who rises in the market through pure meritocracy and natural selection based on networking. With some exceptions, I’d say it’s a reasonable implementation of laissez-faire.

Our field doesn’t even have a consolidated working methodology. We’re still transitioning between the Taylorist-Fordist Classical Software Engineering based on Waterfall, and the post-Toyotist Agile movement of Lean, Scrum, XP and others. Our tools today and ten years ago are quite different. The internet completely changed the course of the profession. These are changes too sudden to try to regulate. In this type of circumstance, the free market is the best way to deal with it.

Therefore, based on all of this, I remain vehemently opposed to this proposed law and sincerely hope there are educated people on the Committee on Social Affairs who will have the good sense to ask society — and us, the affected category — before shelving this text once and for all.