Monday, March 19, 2018

Some CrazyPants ideas for handling Kaspersky

These pants make more sense than some of the ideas posted for handling Kaspersky

So the benefit of being a nation-state, and the hegemon of course, is that you can pretty much do whatever you want. I refer, of course, to last week's LawFare post on policy options for Kaspersky Labs. The point of the piece, written by a respected and experienced policy person, Andrew Grotto, is that the US has many policy options when dealing with the risk Kaspersky and similar companies pose to US National Security. Complications include private ownership of critical infrastructure, the nature of cyberspace, and of course ongoing confusion as to the whether we have punitive or palliative aims in the first place. Another complication is how crazypants all the suggestions are.

He lists six options, the first two dealing with "Critical Infrastructure" where the Government has direct regulatory levers and Kaspersky has a zero percent market share already and always will. The third one is so insane, so utterly bonkers, that I laughed out-loud when reading it. It is this:

Ok, so keep in mind that "deemed export" is an area of considerable debate in the US Export Control community, and not something any other country does. While yes, applying the BIS Export Control rule in this case would immediately cause every company that does business in the United States to rush to uninstall KAV, this is not where the story would end.

Instead, we would have a deep philosophical discussion (i.e. Commerce Dept people being hauled in front of Congress) - because for sure not everyone who works at Azure, every backup provider in the world, or literally any software company, is a US Citizen. Because while Kaspersky has deep and broad covert access to the machines they are installed on, they are not the only ones.

We currently interpret these rules extremely laxly, for good reason.

The next suggestion in the piece is adding Kaspersky to the Entities list - essentially blacklisting them without giving a reason. Even ZTE did not get this treatment and while they paid a fine and are working their way back to good graces if possible, this was highly defensible. I mean, in these cases what about the thousands of US businesses that already have Kaspersky installed? The follow-on effects are massive and the piece ends up recommending against it, since the case against Kaspersky, while logical, is possibly not universally persuasive as a death sentence without further evidence?

Tool number 5 is the FTC doing legal claims against Kaspersky for "unfair or deceptive acts or practices" in particular, for pulling back to the cloud files that are innocuous. Kaspersky's easy defense is going to be "We don't know they are innocuous until we pull them back and analyze them, we make it clear this is what we do, we are hardly the only company to do so, for example see this article." I.E. the idea of FTC legal claims is not a good one and they know it.

The last "Policy Tool" is Treasury Sanctions. Of course we can do this but I assume we would have to blow some pretty specific intel sources and methods to do so.

Ok, so none of the ideas for policy toolkit options are workable, obviously. And as Andrew is hardly new at this, I personally would suggest that this piece came out as a message of some kind. I'm not sure WHAT the message is, or who it is for, but I end with this image to suggest that just because you CAN do something doesn't mean it is a good idea.

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