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Open-Source Leadership to the European Commission: CRA Rules Pose Tech and Economic Risks to EU

New cybersecurity rules for digital products proposed by the European Commission pose "unnecessary economic and technological risks to the European Union," according to a group of 12 open-source software leadership organizations.

In an open letter to the Commission published last week, the group stated: "We write to express our concern that the greater open-source community has been underrepresented during the development of the Cyber Resilience Act (CRA) to date and wish to ensure this is remedied throughout the co-legislative process by lending our support."

And by "support," I assume they meant giving the Commission a tutorial on the way open-source works.

As currently written, the CRA would impose a number of new requirements on hardware manufacturers, software developers, distributors, and importers who place digital products or services on the EU market. The list of proposed requirements includes an "appropriate" level of cybersecurity, a prohibition on selling products with any known vulnerability, security by default configuration, protection from unauthorized access, limitation of attack surfaces, and minimization of incident impact.

The list of proposed rules also includes a requirement for self-certification by suppliers of software to attest conformity with the requirements of the CRA, including security, privacy, and the absence of Critical Vulnerability Events (CVEs).

The problem with these rules, explained Mike Milinkovich, executive director of the Eclipse Foundation, in a blog post, is that they break the "fundamental social contract" that underpins open-source, which is, simply stated, that its producers of that software provide it freely, but accept no liability for its use and provide no warranties.

"Every open-source license contains 'as is,' no liability, and no warranty clauses," Milinkovich wrote. "I’ve always assumed that this is simple common sense: if I provide you with a working program that you can study, use, modify, and further distribute freely for any purpose, why should I accept any liability for your (mis)use of that program? It is the companies which commercialize the technology and make a business from it who need to accept liability and provide warranties to their paying customers, not the open-source projects which they have freely consumed. The CRA fundamentally breaks this understanding by legislating non-avoidable liability obligations to producers of free software."

The Eclipse Foundation is one of the world’s largest open-source software leadership organizations. It moved its legal residence from the United States to Belgium in 2021. The list of co-signers of the letter to the Commission includes. Associaçāo de Empresas de Software Open Source Portuguesas (ESOP), CNLL, The Document Foundation (TDF), European Open-Source Software Business Associations (APELL), COSS - Finnish Centre for Open Systems and Solutions, Linux Foundation Europe, OpenForum Europe (OFE), Open-Source Business Alliance (OSBA), Open-Source Initiative (OSI), Open Systems and Solutions (COSS), OW2, and the Software Heritage Foundation.

The groups collectively offered their expertise to the EU and member states to make "constructive changes to the legislation in support of strengthening cybersecurity without harming the open-source software community, which underpins commerce and public benefit concerns alike."

"We deeply share the CRA’s aim to improve the cybersecurity of digital products and services in the EU and embrace the urgent need to protect citizens and economies by improving software security," they stated in their letter. "However, our voices and expertise should be heard and have an opportunity to inform public authorities' decisions. If the CRA is, in fact, implemented as written, it will have a chilling effect on open-source software development as a global endeavor, with the net effect of undermining the EU’s own expressed goals for innovation, digital sovereignty, and future prosperity."

The leadership organizations urged the Commission to engage with the open-source community and take its concerns into account as they consider the implementation of the CRA. They even suggested how that might look with a list of recommendations:

  • Recognize the unique characteristics of open-source software and ensure that the Cyber Resilience Act does not unintentionally harm the open-source ecosystem.
  • Consult with the open-source community during the co-legislative process.
  • Ensure that any development under the CRA takes into account the diversity of open and transparent open-source software development practices.
  • Establish a mechanism for ongoing dialogue and collaboration between the European institutions and the open-source community, to ensure that future legislation and policy decisions are informed.

The CRA, while well-intentioned, in its current form shows a fundamental lack of understanding of open-source. No one is saying we're not facing significant cybersecurity threats. And no one is saying open-source is immune from those threats. The Apache Log4j remote code execution vulnerability, revealed in late 2021, showed that the compromised security of open-source software components can have a real impact. But the Commission would do well to accept the input of the open-source community. As the leadership groups noted in their letter, open-source represents more than 70% of the software present in products with digital elements in Europe.

"The software and other technical artefacts produced by us are unprecedented in their contribution to the technology industry along with our digital sovereignty and associated economic benefits on many levels," they wrote. "With the CRA, more than 70% of the software in Europe is about to be regulated without an in-depth consultation."

Posted by John K. Waters on April 27, 2023