This is my comment I submitted to the BIS on their Wassenaar rules:
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Hi.
I created the first “intrusion prevention system”, as well as many tools and much cybersecurity research over the last 20 years. I would not have done so had these rules been in place. The cost and dangers would have been too high. If you do not roll back the existing language, I will be forced to do something else.
After two months, reading your FAQ, consulting with lawyers and export experts, the cybersecurity industry still hasn’t figured out precisely what your rules mean. The language is so open-ended that it appears to control everything. My latest project is a simple “DNS server”, a piece of software wholly unrelated to cybersecurity. Yet, since hackers exploit “DNS” for malware command-and-control, it appears to be covered by your rules. It’s specifically designed for both the distribution and control of malware. This isn’t my intent, it’s just a consequence of how “DNS” works. I haven’t decided whether to make this tool open-source yet, so therefore traveling to foreign countries with the code on my laptop appears to be a felony violation of export controls.
Of course you don’t intend to criminalize this behavior, but that isn’t the point. The point is that the rules are so vague that they become impossible for anybody to know exactly what is prohibited. We therefore have to take the conservative approach. As we’ve seen with other vague laws, such as the CFAA, enforcement is arbitrary and discriminatory. None of us would have believed that downloading files published on a public website would be illegal until a member of community was convicted under the CFAA for doing it. None of us wants to be a similar test case for export controls. The current BIS rules are so open-ended that they would have a powerful chilling effect on our industry.
The solution, though, isn’t to clarify the rules, but to roll them back. You can’t clarify the difference between good/bad software because there is no difference between offensive and defensive tools -- just the people who use them. The best way to secure your network is to attack it yourself. For example, my “masscan” tool quickly scans large networks for vulnerabilities like “Heartbleed”. Defenders use it to quickly find vulnerable systems, to patch them. But hackers also use my tool to find vulnerable systems to hack them. There is no solution that stops bad governments from buying “intrusion” or “surveillance” software that doesn’t also stop their victims from buying software to protect themselves. Export controls on offensive software means export controls on defensive software. Export controls mean the Sudanese and Ethiopian people can no longer defend themselves from their own governments.
Wassenaar was intended to stop “proliferation” and “destabilization”, yet intrusion/surveillance software is neither of those. Human rights activists have hijacked the arrangement for their own purposes. This is a good purpose, of course, since these regimes are evil. It’s just that Wassenaar is the wrong way to do this, with a disproportionate impact on legitimate industry, while at the same time, hurting the very people it’s designed to help. Likewise, your own interpretation of Wassenaar seems to have been hijacked by the intelligence community in the United States for their own purposes to control “0days”.
Rather than the current open-end and vague interpretation of the Wassenaar changes, you must do the opposite, and create the narrowest of interpretations. Better yet, you need to go back and renegotiate the rules with the other Wassenaar members, as software is not a legitimate target of Wassenaar control. Computer code is not a weapon, if you make it one, then you’ll destroy America’s standing in the world. On a personal note, if you don’t drastically narrow this, my research and development will change. Either I will stay in this country and do something else, or I will move out of this country (despite being a fervent patriot).
Robert Graham
Creator of BlackICE, sidejacking, and masscan.
Frequent speaker at cybersecurity conferences.
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