[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 and embraced by this Marconi Perillo.

The Text of the Proposed Law

I decided to go through the text more carefully. The original proposal was the failed Bill No. 1,947 of 2003 by Eduardo Paes, thankfully shelved. Not satisfied, Expedito Júnior introduced the disastrous Bill No. 607 of 2007. I recommend reading the original version first, available 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. It isn’t entirely bad, but it has several flawed points of interpretation, and I’d rather not decide whether that comes down to bad faith or laziness. The report opens by citing the SBC, the Brazilian Computing Society:

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, and I think everyone in the field agrees with it. But the very next paragraph gets the interpretation wrong, obviously written by someone from 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 leaves out self-taught individuals and students who chose not to get a formal degree for various reasons (see my article Should I Get a Degree?). The article excludes a good chunk of the most qualified professionals.

Even item III doesn’t spell out what “demonstrated five or more years of practice” means. Does an employment record count? Does an invoice for IT services billed to a client count? 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 and coordination of software projects, explicitly including “coding.” That is, everything project managers, architects, programmers and the like do. And the same article gives us:

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 it, but that paragraph looks clearly exclusive to me and, once again, leaves out self-taught programmers. The analysis then falls back on some 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.

This is the wrong justification behind most arguments in favor of the law: that a formally trained professional is always far superior to a more experienced self-taught one. It’s the entire basis of my argument in my article from last year. I recommend reading it carefully.

To be fair to the analysis, it did at least suggest cutting the most serious parts:

• 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”;

Which brings us to the latest mess: the approval in the Committee on Constitution, Justice and Citizenship, published on 08/19/2009. The proposal passed with all the modifications suggested by the Committee on Science and 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 …

In plain terms, this removes the chapters that created the oversight bodies: the Federal Council of Informatics, the Regional Councils, professional registration and oversight, annual fees, emoluments and rates and, finally, infractions and penalties. Those would have been the most harmful parts if implemented. I really hope they stay out.

The Seventh Element

Since 08/20/2009 the substitute bill has been 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’ll pass without much trouble, which is terrible!

My arguments in the article Let’s Stop the Regulation from last year still hold. Even after giving up the articles that created the whole bureaucratic machine and the penalties, it’s still a terrible law for the 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 single article replaces articles 7 through 33 without defining anything, leaving it open and arbitrary what the Executive will do about supervising and registering professionals. Deep down, everything that was removed is still implicitly valid.

This article didn’t exist in the 2008 version from the Committee on Science and Technology. It was the only thing added in the version approved by the CCJ on 08/19/2009 and is, in my opinion, what made the text regress the most. 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. It 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 modernization.

As the SBC itself pointed out, this market should be free and self-regulated, which it already is in practice. There’s no need whatsoever for regulation of this kind.

I’ve said before that we can discuss a more realistic text. But this particular one is far too harmful to be considered. It would need to be rewritten from scratch 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 (if anyone does, please comment here). It restricts the activity by starting from the wrong premise that formally trained professionals are always better than self-taught ones, which, from personal experience, is very false. Some of the best people I’ve worked with over these past 15 years had no degree.

Most people in favor fall into two groups: those who have read the 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 exactly the bad professionals who can’t compete with self-taught people and want to lean only on the force of “credentials” as the criterion. This market self-regulates as bad professionals get naturally pushed into lower-value activities.

There’s also a confusion between the careers of “coder” and “developer.” The coder is a commodity, close to a typist, who just translates diagrams and requirements into code with no attention to quality. The developer is a born architect, with total control over their own creation. One is a commodity; the other is the “cream of the crop,” rising in the market through pure meritocracy and natural selection via 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 moving from the Taylorist-Fordist Classical Software Engineering based on Waterfall to the post-Toyotist Agile movement of Lean, Scrum, XP and others. Our tools today and the ones from ten years ago are quite different, and the internet completely changed the course of the profession.

These changes are too sudden to try to regulate. In a scenario like this, the free market is the best way to deal with the problem.

For all of this, I remain vehemently opposed to this proposal and hope there are sensible people on the Committee on Social Affairs, with the good sense to ask society and us, the affected category, before shelving this text once and for all.