EU's Cyber Resilience Act raises concerns about open source and cybersecurity
The European Union is revising its proposed Cyber Resilience Act (CRA), which aims to
strengthen Europe's defenses against cyber attacks and improve product security. The
law targets a wide range of products marketed to European consumers, including
Internet of Things (IoT) devices, desktop computers and smartphones. It imposes
vulnerability disclosure requirements on device manufacturers and distributors, and
introduces new cybersecurity incident liability provisions.
The Electronic
Frontier Foundation (EFF), a leading nonprofit international legal organization,
welcomed the intent of the legislation, but also expressed concern that it raises
concerns about open source and cybersecurity: the proposed law would penalize open
source developers who receive any additional revenue for their work. It would also
require manufacturers to report actively exploited, unpatched vulnerabilities to
regulators. This requirement has the potential to expose the circumstances and
exploitation of these vulnerabilities to a wider audience, further exacerbating the
harm the legislation is intended to mitigate.
1. Threats to open source software
Open source software is
the backbone of the modern Internet. The contributions of developers of open source
projects such as Linux and Apache are freely used and incorporated into products
distributed to billions of people around the world. This can only be achieved
through revenue streams that reward developers for their work, including individual
donations, foundation grants and sponsorships. This development and funding
ecosystem is integral to the operation and security of today's software-driven
world.
The CRA imposes liability on commercial activities that bring
vulnerable products to market. While Section 10 of the proposed law exempts
non-profit open source contributors from liability by exempting "commercial
activities," the exemption defines commercial activities too broadly. Any open
source developer who solicits donations for their software or charges for support
services is not exempt, so they would be liable for damages if their product
inadvertently contains a vulnerability and then incorporates it into the product,
even if they did not make the product themselves. Often, open source contributors
and developers write software and make it available to others out of goodwill and
gratitude. If these developers receive even a bounty for their work, it will put
them at risk. Small organizations that produce open source code for the public good
may subject their entire operation to legal challenges simply because they lack the
funds to take the risk. This would force developers and organizations to abandon
these projects altogether, damaging the entire open source environment.
In
response, the Electronic Frontier Foundation calls on the CRA to further exempt
individuals who provide open source software from liability, including when they are
paid for their work.
2. Vulnerability disclosure requirements pose a
cybersecurity threat
Article 11 of the proposed text requires
manufacturers to voluntarily disclose exploited vulnerabilities to the European
Union Agency for Cyber Security (ENISA) within 24 hours. ENISA would then be
required to forward details of these vulnerabilities to member states' Computer
Security Incident Response Teams (CSIRTs) and market surveillance bodies. As a
measure of accountability, this requirement would provide an incentive for product
manufacturers with poor product security records to actively seek out and mitigate
vulnerabilities. Regardless of intent, this requirement is likely to have unintended
consequences for manufacturers who prioritize product security. Vulnerabilities that
pose a serious security risk to consumers are often treated as closely guarded
secrets by these companies until the fix is properly applied and deployed to the end
device. These vulnerabilities can take weeks or even months for the proper fixes to
be applied.
The short time frame can prevent companies from applying "deep"
fixes that correct the root cause of the vulnerability, opting instead for "shallow"
fixes that only address the symptoms. Deep fixes take time, and the 24-hour
requirement will start a timer on the response and will result in a haphazard
patchwork response.
The second impact is that more organizations and people
will soon become aware of the vulnerabilities, which will greatly increase the risk
that they will be exposed to someone who might want to exploit them maliciously.
Government knowledge of a range of software vulnerabilities in manufacturers could
create tempting targets for hacking and espionage. Manufacturers concerned about the
security outcomes for their customers have little control or insight into the
operational security of ENISA or member state agencies that are aware of these
vulnerabilities. This reporting requirement increases the risk that vulnerabilities
will be added to the offensive arsenal of government intelligence agencies.
Manufacturers should not be concerned that reporting flaws in their software will
lead to further development of cyber warfare capabilities at their expense.
Another
issue is that the reporting requirements do not include public disclosure. In order
for consumers to make informed decisions about the products they purchase, security
updates should be provided along with details about security vulnerabilities.
Given the significant risks associated with this requirement, the Electronic
Frontier Foundation calls on European legislators to refrain from imposing
inflexible deadlines for fixing vulnerabilities to address security issues and to
release detailed reports on vulnerabilities to ENISA only after they have been
fixed. In addition, detailed disclosure of security fix procedures is needed.
Stricter requirements may be imposed on companies that are mediocre at product
security - but this should be the exception, not the rule.