Note: This is a living document partially written for those new to export controls - if you think I misunderstood something let me know and I'll address it within!
I want to highlight this Twitter thread here
which goes over the 4D4 ("Intrusion Software") in a bit of detail. I feel like many people who are proponents of 4D4 complain that the rest of us, who have concerns, don't properly understand export control frameworks. I would posit there IS NO UNDERSTANDING OF EXPORT CONTROL FRAMEWORKS BY DESIGN :). But to be more specific about the concerns the following bite size bit is the most important part:
Being able to look, objectively, at a piece of hardware and say "This is a stealth coating because it has the following manufacturing characteristics" is a different category than being able to look at a piece of software and saying "This bypasses ASLR and DEP". Deep down, while radio frequencies are in general going to be a universal thing, and performance can be measured, the export control language applied to software exists in a huge fog! What does it mean to "bypass a mitigation"?
The Issues of End Use Controls
What this results in is END USE controls. In other words, instead of saying "We want to ban antennas that can emit the following level of power" we are writing controls that say "We want to ban software that CAN BE USED for the following thing". This means instead of looking at the software to control it, you end up looking at the marketing, so the controls are littered with marketing language ("Carrier Grade Speed!") and do not have functions, characteristics, or performance levels of any kind.
Sometimes you see long lists of functionalities in software controls, as if this is going to be a definitive characteristic if you add enough of them. For example, 5a1j ("Surveillance software") is essentially:
- Collects network information
- parses it and stores the metadata about it (aka, FTP usernames and such) into a DB
- Indexes that information (why else would you have this in a DB?)
- Can visualize and graph relations between users (based on the information you indexed)
- Can search the DB using "selectors" ("again, why else is it in a DB?")
This is what modern breach detection
software is - a product category that did not really exist when 5a1j was formulated. But each of the pieces DID exist and given a market opportunity, they got put together as you would expect. In other words - long lists of functions are not enough to make a good control (especially when all the functions you are describing are commoditized in the ELK Docker image)
are the big differentiation typically. The general rule is that if you cannot define a performance level, you are writing a terrible regulation because it will apply broadly to a huge population you don't care about and have massive side effects, but the international community has typically just ignored this for software controls (because it is hard). Part of the difficulty here is that performance levels in the cyber domain tend to go up a lot faster than in most manufacturing areas. The other issue is that for the controls people seem to want, there are no clear metrics on performance. For example, with 5a1j there is nothing that differentiates the speeds/processing/storage that Goldman Sachs (or even a small university) would use versus a country backbone ISP.
Another thing to watch out for is the contrast between controls on "Software" and the controls on "Technology". Usually these controls go hand in hand. They'll say "We control this antenna, but also we control technology for making those antennas so you can't just sell a Powerpoint on how to make them to China either". In software, this gets a lot more difficult. Adding an exception to a technology control does not fix the software control...
What we are learning is that software export controls work best when tied to an industry Standard. This does not describe the current cyber tools regulations (4d4 or 5a1j), however. We do know that end use-based controls are not good even with very large exceptions carved into them for reasons which might require another whole paper, but which seem obvious in retrospect when looking at the regulations as "laws" which need to be applied on an objective basis.
I got flack last Sunday for Tweeting that export controls "ban" an item, which they clearly do not. However, the effect of export controls is similar - largely a slower, more painful, and silent death rather than a strict ban. I.E. export controls are less a bullet to the head and more a chronic but fatal disease for your domestic industry. This is partially because licensing has an extremely high opportunity cost on US businesses which raises the expense of doing business up and down the supply chain.
There's a common misconception among export control proponents that when used loosely (aka, automatic licensing with only reporting requirements), export control is "cost free" for businesses. Nothing could be further from the truth. Even very small companies (aka startups) are now international companies, and having to understand their risks from export control regimes can be prohibitively expensive with such broadly (and poorly) designed controls as 4d4 or 5a1j.
More strategically, no proponent of strict export control regimes wants to look at their cost and efficacy. Do they even work? Do they work at a reasonable cost? For how long do they work? Do we have a realistic mechanism for removal of controls once they become ineffective? These are all questions we should answer before we implement controls. The long term impacts are recorded at policy meetings in sarcastic anecdotes - "We don't even build <controlled system> in the US anymore, we just buy it from China - that export control did its job!"
Sadly, this means that export controls are almost certainly having the exact opposite effect from what is desired. This could probably be addressed by having a quite strict "Foreign availability" rule when designing new regulations. After all, what is the point of putting restrictions on our exports when the same or similar technology is available from non WA members? Any real stress on these issues is mysteriously missing from discussions around the cyber-tools regulations. :)
The goal of the Wassenaar Arrangement and other similar agreements is of course to avoid the problem of unilateral controls
, which are an obvious problem. What they don't want to hear is that the implementation differences between countries are large enough that the controls are unilateral anyway
. To have truly non-unilateral controls you need one body making licensing decisions - and by design WA does not work like that.
The gaps in implementation are large enough that entire concepts appear in one country that don't exist in others - most prominently, the "Deemed Export" ruleset, which says that if I sell an Iranian an iPhone in Miami
, that is the same as exporting it to Iran and I need to get a license.
Goals, both Stated and Unstated
The stated goal of export controls is avoiding technology transfer for national security purposes! (Note that "human rights issues" are not a stated goal for the WA).
The unstated goals are more complex. For example, we get a lot of intelligence value out of the quarterly reports from software companies for all of their international customers. There's probably also limited intel value in the licensing documents themselves ("Please have your Chinese customer fill out a form - in English - stating what they are using your product for!") Obviously the US likes having a database somewhere of every foreign engineer who has accessed a lithography plant, I guess. Because this stuff is unstated, it's hard to argue against in terms of ROI but I would say that for most of this you can get a ton better value by having a private conversation with the companies involved, which is a good first step towards building the kinds of relationships we always claim we want between the USG and industry. As stated previously, the costs imposed by even a "reporting only" licensing scheme are enormous.
When I talk to Immunity customers (large financials) about 5a1j, they assume that the reason the USG wants reporting on all breach detection systems sold overseas is so they can better hack them. It's hard to argue with that. This is a high reputational cost that the USG pays among industry for intelligence that is probably of little real value.
The other unstated goal is leverage
. Needless to say with a complicated enough export control regime, nearly every company will eventually be in violation. Likewise, blanket export licenses can massively reduce your opportunity cost, and many countries are happy to issue them in various special cases. Again, I think from a government's perspective it is better long term to develop fruitful bilateral relationships.
A lot of these issues are especially true with "end use"-centric controls - which rely on information that the SELLER or BUILDER of the technology has no way to know ahead of time.
And the last-but-not-least unstated goal is to control the sale of 0day
. Governments are mostly aligned in their desire to do this, although few of them understand what that means, what the side effects would be, or how this would really play out. But parts of the rest of their strategy (VEP) only really work when these controls go into place, so they have a strong drive to write the controls and see how things work later. It is this particular unstated but easily visible goal that I think is the largest threat towards the security industry currently.
I tried in this document to start painting the landscape as to where cyber tool export controls can go wrong. Part of my goal joining ISTAC was to stop making the mistakes we made with 5a1j and 4d4 by putting things into a bit of a more coherent policy framework. Hopefully this document will be useful to other technical and policy groups as together we find a way to navigate this tricky policy area.
To be fair, we've known a lot of these issues for a very long time, and we simply have not fixed them:
|From this very good, very old book.|