Upcoming EU Legislation (Cyber Resilience Act and Product Liability Directive)
Hi Debianites,
as a result of our discussions on DebConf23 and MiniDebConf Uruguay I
would like to alert a broader audience to some proposed legislation in
the European Union. I think Debian should take a public stand in this
debate. I would like Debian to discuss and decide about making a public
statement, as drafted here below.
Regards,
Ilu
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Draft - Debian Public Statement about the EU Cyber Resilience Act and
the Product Liability Directive
The European Union is currently preparing a regulation "on horizontal
cybersecurity requirements for products with digital elements" known as
the Cyber Resilience Act (CRA). It's currently in the final "trilogue"
phase of the legislative process. The act includes a set of essential
cybersecurity and vulnerability handling requirements for manufacturers.
It will require products to be accompanied by information and
instructions to the user. Manufacturers will need to perform risk
assessments and produce technical documentation and for critical
components, have third-party audits conducted. Discoverded security
issues will have to be reported to European authorities within 24 hours
(1). The CRA will be followed up by the Product Liability Directive
(PLD) which will introduce compulsory liability for software. More
information about the proposed legislation and its consequences in (2).
While a lot of these regulations seem reasonable, the Debian project
believes that there are grave problems for Free Software projects
attached to them. Therefore, the Debian project issues the following
statement:
1. Free Software has always been a gift, freely given to society, to
take and to use as seen fit, for whatever purpose. Free Software has
proven to be an asset in our digital age and the proposed EU Cyber
Resilience Act is going to be detrimental to it.
a. It is Debian's goal to "make the best system we can, so that
free works will be widely distributed and used." Imposing requirements
such as those proposed in the act makes it legally perilous for others
to redistribute our works and endangers our commitment to "provide an
integrated system of high-quality materials _with no legal restrictions_
that would prevent such uses of the system". (3)
b. Knowing whether software is commercial or not isn't feasible,
neither in Debian nor in most free software projects - we don't track
people's employment status or history, nor do we check who finances
upstream projects.
c. If upstream projects stop developing for fear of being in the
scope of CRA and its financial consequences, system security will
actually get worse instead of better.
d. Having to get legal advice before giving a present to society
will discourage many developers, especially those without a company or
other organisation supporting them.
2. Debian is well known for its security track record through practices
of responsible disclosure and coordination with upstream developers and
other Free Software projects. We aim to live up to the commitment made
in the Social Contract: "We will not hide problems." (3)
a. The Free Software community has developed a fine-tuned, well
working system of responsible disclosure in case of security issues
which will be overturned by the mandatory reporting to European
authorities within 24 hours (Art. 11 CRA).
b. Debian spends a lot of volunteering time on security issues,
provides quick security updates and works closely together with upstream
projects, in coordination with other vendors. To protect its users,
Debian regularly participates in limited embargos to coordinate fixes to
security issues so that all other major Linux distributions can also
have a complete fix when the vulnerability is disclosed.
c. Security issue tracking and remediation is intentionally
decentralized and distributed. The reporting of security issues to
ENISA and the intended propagation to other authorities and national
administrations would collect all software vulnerabilities in one place,
greatly increasing the risk of leaking information about vulnerabilities
to threat actors, representing a threat for all the users around the
world, including European citizens.
d. Activists use Debian (e.g. through derivatives such as Tails),
among other reasons, to protect themselves from authoritarian
governments; handing threat actors exploits they can use for oppression
is against what Debian stands for.
e. Developers and companies will downplay security issues because
a "security" issue now comes with legal implications. Less clarity on
what is truly a security issue will hurt users by leaving them vulnerable.
3. While proprietary software is developed behind closed doors, Free
Software development is done in the open, transparent for everyone. To
keep even with proprietary software the open development process needs
to be entirely exempt from CRA requirements, just as the development of
software in private is. A "making available on the market" can only be
considered after development is finished and the software is released.
4. Even if only "commercial activities" are in the scope of CRA, the
Free Software community - and as a consequence, everybody - will lose a
lot of small projects. CRA will force many small enterprises and most
probably all self employed developers out of business because they
simply cannot fullfill the requirements imposed by CRA. Debian and other
Linux distributions depend on their work. It is not understandable why
the EU aims to cripple not only an established community but also a
thriving market. CRA needs an exemption for small businesses and, at the
very least, solo-entrepreneurs.
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Sources:
(1) CRA proposals and links:
https://www.europarl.europa.eu/legislative-train/theme-a-europe-fit-for-the-digital-age/file-proposal-for-cybersecurity-regulation
PLD proposals and links:
https://www.europarl.europa.eu/legislative-train/theme-a-europe-fit-for-the-digital-age/file-new-product-liability-directive
(2) Background information:
https://blog.documentfoundation.org/blog/2023/01/24/tdf-position-on-eus-proposed-cyber-resilience-act/
https://blogs.eclipse.org/post/mike-milinkovich/european-cyber-resilience-act-potential-impact-eclipse-foundation
https://labs.ripe.net/author/maarten-aertsen/open-source-software-vs-the-proposed-cyber-resilience-act/
https://blog.opensource.org/author/webmink/
Detailed
analysis: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13410-Cyber-resilience-act-new-cybersecurity-rules-for-digital-products-and-ancillary-services/F3376542_en
(3) Debian Social Contract No. 2, 3 and 4
https://www.debian.org/social_contract
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