DHS Cyber Czar, Tech Titans Tell Commerce to Rethink Hacking Arms Control

A lawmaker from Virginia's high-tech corridor is pressing Congress to delete hacking tools from an international arms control agreement.

The deal -- reached in 2013 -- bans multinational firms and cyber vendors from transmitting information about "intrusion software" across borders without first obtaining a license. When the Obama administration proposed a U.S. rule to execute the agreement in May 2015, federal officials received hundreds of public comments, largely rejecting the plan. 

A serious error, critics say, is that transferring technical data about the taboo tools is necessary to immunize potential targets against infection.

No information security firms were consulted on the addition of spyware to the so-called Wassenaar Arrangement, a multilateral 41-country forum founded in 1995 to regulate the transfer of conventional weapons and dual-use goods like certain lasers and supercomputers.

"There were none that were sitting on the advisory groups" the Commerce Department relied on to help the State Department reach an international consensus on hacking tool controls, Cheri Flynn McGuire, Symantec vice president for global government affairs and cybersecurity policy, told lawmakers Tuesday. 

Rep. Gerry Connolly, D-Va., McGuire and other tech industry leaders urged a renegotiation of the pact during a joint House Homeland Security and House Oversight and Government Reform committee hearing. Even the Department of Homeland Security cyber czar went as far as saying, without a doubt, the proposal should be reconsidered. 

It all started with good intentions. The United States and allies want to stop oppressive regimes from hacking into the communications of political dissidents with intrusion software. But unbeknownst to Wassenaar negotiators from State and Commerce, U.S. information security providers need access to such code for good reason. They can't protect government or industry against malware without studying it and essentially hacking into systems with it to understand how the code impacts a machine. These -- legal -- techniques are called vulnerability or "exploit" research and "penetration testing."

Software and server contractor VMware transmits technical data on malicious code across borders every day, to protect its own internal networks, as well as the networks of corporate and government customers, said Iain Mulholland, VMware vice president of engineering trust and assurance. 

Holding up a computer printout of 40 lines of typed code, he said, “The thing that we are trying to control today is this.”

"This is the code for the Heartbleed security vulnerability," a bug discovered in widely used encryption software in 2014, and "If I want to proliferate that, I take it around the corner and I photocopy it, or I email it, or I post it on the Internet,” Mulholland added.

"We're trying to take a physical construct that's worked pretty well for 20 odd years and we're trying to drop it into the digital world and frankly, my view is that simply doesn't work," he said. 

Connolly, whose district includes the Herndon, Vienna and Fairfax headquarters of some of the country's largest tech companies, agreed the nonproliferation treaty mindset does not make sense in cyberspace.  

Congress hopefully will "explore a radical rethinking of what's in place right now," Connolly said. "Industry is asked to spend a lot of time and money trying to comply with something that is not efficacious in my mind."

For example, it takes Microsoft one to three months or more on average to obtain an approval on a license application. Meanwhile, each day, 19 new software security vulnerabilities are reported by researchers, according to an analysis of 2014 government data by GFI Software

Microsoft receives about 1,000 reports of vulnerabilities in its products every year that must be taken care of by teams from across the globe.

"We could be looking at 1,000 vulnerabilities times three, four, or five export licenses just to triage vulnerabilities," said Cristin Flynn Goodwin, Microsoft assistant general counsel for cybersecurity. "That's not talking malware. That's not talking about new tools or new issues. That's just to be able to do our daily work. That would -- from what we understand -- eclipse the total volume of licenses that the department of Commerce grants. “

Phyllis Schneck, DHS deputy undersecretary for cybersecurity and communications, said if companies claim the licensing process can take weeks, then the proposed hacking tool restriction has problems.

"The best cybersecurity protection we can provide is to understand,” as quickly as possible, “what's happening and make sure that when a cyber actor tries to execute their instruction on a machine they don't own, that machine knows a) not to execute it or b) that it's happening, so it can tell everybody else about it and not sustain an injury," she said.

"The ability or the thought that that would get delayed in any of the ways mentioned today is detrimental to our cybersecurity," Schneck added.

In addition, U.S. tech giants pointed out they could lose their top spot in the $75 billion global cybersecurity market to foreign firms not bound by the prohibitions. About 75 percent of the world, including cyber powers like Israel and China, is not part of the Wassenaar Arrangement, Mullholland said.

The trade imbalance would put "those who rigorously implement and enforce the rule at a distinct competitive disadvantage," he said.  

Symantec and Microsoft officials also strongly recommended the rule be remanded back to Wassenaar for renegotiation. 

Schneck said, "We have to together," as agencies and industry partners, "absolutely revisit this proposed rule."

In terms of next steps for U.S. negotiators, "everything is on the table -- whether we go back to Wassenaar" or issue another proposed rule “with edits and clarifications or interpretations or carve-outs," Kevin Wolf, Commerce assistance secretary for export administration, told lawmakers.

Proposals to the Wassenaar body are due in March and are debated throughout the year, with final decisions made in December, said Ann Ganzer, State director of conventional arms threat reduction.