General Resolution: Statement about the EU Legislation "Cyber Resilience Act and Product Liability Directive"

Time Line

Discussion Period: 2023-11-12 2023-12-03
Voting period: Saturday 2023-12-09 00:00:00 UTC Friday 2023-12-22 23:59:59 UTC

Proposal A Proposer

Santiago Ruano Rincón [[email protected]] [text of original proposal] [text of amended proposal] [text of final amended proposal]

Proposal A Seconds

  1. Gunnar Wolf [[email protected]] [mail]
  2. Mattia Rizzolo [[email protected]] [mail]
  3. Lisandro Damián Nicanor Pérez Meyer [[email protected]] [mail]
  4. Nicolas Dandrimont [[email protected]] [mail]
  5. Simon Quigley [[email protected]] [mail]
  6. Pierre-Elliott Bécue [[email protected]] [mail]
  7. Emmanuel Arias [[email protected]] [mail]

Proposal A

Choice 1: CRA and PLD proposals include regulations detrimental to FOSS

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 is 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. Discovered 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.

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.
    1. As the Debian Social Contract states, our goal is "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 work 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". (2)
    2. 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 (the original projects that we integrate in our operating system).
    3. If upstream projects stop making available their code for fear of being in the scope of CRA and its financial consequences, system security will actually get worse rather than better.
    4. Having to get legal advice before giving a gift 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 Debian Social Contract: "We will not hide problems." (3)
    1. The Free Software community has developed a fine-tuned, tried-and-tested 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).
    2. Debian spends a lot of volunteering time on security issues, provides quick security updates and works closely together with upstream projects and 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.
    3. 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. This greatly increases the risk of leaking information about vulnerabilities to threat actors, representing a threat for all the users around the world, including European citizens.
    4. 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.
    5. 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 retain parity 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 fulfill the requirements imposed by CRA. Debian and other Linux distributions depend on their work. If accepted as it is, CRA will undermine not only an established community but also a thriving market. CRA needs an exemption for small businesses and, at the very least, solo-entrepreneurs.

Sources:

(1)
CRA proposals and links
PLD proposals and links

(2) Debian Social Contract No. 2, 3 and 4

Proposal B Proposer

Luca Boccassi [[email protected]] [text of proposal]

Proposal B Seconds

  1. Aigars Mahinovs [[email protected]] [mail]
  2. Chris Hofstaedtler [[email protected]] [mail]
  3. Lucas Nussbaum [[email protected]] [mail]
  4. Michael Biebl [[email protected]] [mail]
  5. Russ Allbery [[email protected]] [mail]
  6. Holger Levsen [[email protected]] [mail]

Proposal B

Choice 2: CRA and PLD proposals should only apply to commercial ventures

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. Security issues under active exploitation will have to be reported to European authorities within 24 hours (1). The CRA will be followed up by an update to the existing Product Liability Directive (PLD) which, among other things, will introduce the requirement for products on the market using software to be able to receive updates to address security vulnerabilities.

Given the current state of the electronics and computing devices market, constellated with too many irresponsible vendors not taking enough precautions to ensure and maintain the security of their products, resulting in grave issues such as the plague of ransomware (that, among other things, has often caused public services to be severely hampered or shut down entirely, across the European Union and beyond, to the detriment of its citizens), the Debian project welcomes this initiative and supports its spirit and intent.

The Debian project believes Free and Open Source Software Projects to be very well positioned to respond to modern challenges around security and accountability that these regulations aim to improve for products commercialized on the Single Market. Debian is well known for its security track record through practices of responsible disclosure and coordination with upstream developers and other Free and Open Source Software projects. The project aims to live up to the commitment made in the Debian Social Contract: "We will not hide problems." (2)

The Debian project welcomes the attempt of the legislators to ensure that the development of Free and Open Source Software is not negatively affected by these regulations, as clearly expressed by the European Commission in response to stakeholders' requests (1) and as stated in Recital 10 of the preamble to the CRA:

      'In order not to hamper innovation or research, free and open-source
      software developed or supplied outside the course of a commercial
      activity should not be covered by this Regulation.'

The Debian project however notes that not enough emphasis has been employed in all parts of these regulations to clearly exonerate Free and Open Source Software developers and maintainers from being subject to the same liabilities as commercial vendors, which has caused uncertainty and worry among such stakeholders.

Therefore, the Debian project asks the legislators to enhance the text of these regulations to clarify beyond any reasonable doubt that Free and Open Source Software developers and contributors are not going to be treated as commercial vendors in the exercise of their duties when merely developing and publishing Free and Open Source Software, with special emphasis on clarifying grey areas, such as donations, contributions from commercial companies and developing Free and Open Source Software that may be later commercialised by a commercial vendor. It is fundamental for the interests of the European Union itself that Free and Open Source Software development can continue to thrive and produce high quality software components, applications and operating systems, and this can only happen if Free and Open Source Software developers and contributors can continue to work on these projects as they have been doing before these new regulations, especially but not exclusively in the context of nonprofit organizations, without being encumbered by legal requirements that are only appropriate for commercial companies and enterprises.

Sources:

(1)
CRA proposals and links
PLD proposals and links
Response from the European Commission to a question from the European Parliament on FOSS awareness

(2) Debian Social Contract No. 2, 3 and 4

Proposal C Proposer

Bart Martens [[email protected]] [text of proposal]

Proposal C Seconds

  1. ChangZhuo Chen (陳昌倬) [[email protected]] [mail]
  2. Paul Wise [[email protected]] [mail]
  3. Simon Richter [[email protected]] [mail]
  4. Laura Arjona Reina [[email protected]] [mail]
  5. Holger Levsen [[email protected]] [mail]

Proposal C

Choice 3: The EU should not overrule DFSG 6 and FOSS licenses

Debian Public Statement about the EU Cyber Resilience Act (CRA) and the Product Liability Directive (PLD)

The CRA includes requirements for manufacturers of software, followed up by the PLD with compulsory liability for software. The Debian project has concerns on the impact on Free and Open-Source Software (FOSS).

The CRA makes the use of FOSS in commercial context more difficult. This goes against the philosophy of the Debian project. The Debian Free Software Guidelines (DFSG) include "6. No Discrimination Against Fields of Endeavor - The license must not restrict anyone from making use of the program in a specific field of endeavor." A significant part of the success of FOSS is its use in commercial context. It should remain possible for anyone to produce, publish and use FOSS, without making it harder for commercial entities or for any group of FOSS users.

The compulsory liability as meant in the PLD overrules the usual liability disclaimers in FOSS licenses. This makes sharing FOSS with the public more legally risky. The compulsory liability makes sense for closed-source software, where the users fully depend on the manufacturers. With FOSS the users have the option of helping themselves with the source code, and/or hiring any consultant on the market. The usual liability disclaimers in FOSS licenses should remain valid without the risk of being overruled by the PLD.

The Debian project asks the EU to not draw a line between commercial and non-commercial use of FOSS. Such line should instead be between closed-source software and FOSS. FOSS should be entirely exempt from the CRA and the PLD.

Quorum

With the current list of voting developers, we have: 

 Current Developer Count = 1004
 Q ( sqrt(#devel) / 2 ) = 15.8429795177549
 K min(5, Q )           = 5
 Quorum  (3 x Q )       = 47.5289385532646

Quorum

Data and Statistics

For this GR, like always, statistics will be gathered about ballots received and acknowledgements sent periodically during the voting period. Additionally, the list of voters will be recorded. Also, the tally sheet will also be made available to be viewed.

Majority Requirement

All proposal need a simple majority.

Majority

Outcome

Graphical rendering of the results

In the graph above, any pink colored nodes imply that the option did not pass majority, the Blue is the winner. The Octagon is used for the options that did not beat the default.

In the following table, tally[row x][col y] represents the votes that option x received over option y. A more detailed explanation of the beat matrix may help in understanding the table. For understanding the Condorcet method, the Wikipedia entry is fairly informative.

The Beat Matrix
 Option
  1 2 3 4
Option 1   72 71 121
Option 2 67   73 119
Option 3 58 64   114
Option 4 35 32 39  

Looking at row 2, column 1, CRA and PLD proposals should only apply to commercial ventures
received 67 votes over CRA and PLD proposals include regulations detrimental to FOSS

Looking at row 1, column 2, CRA and PLD proposals include regulations detrimental to FOSS
received 72 votes over CRA and PLD proposals should only apply to commercial ventures.

Pair-wise defeats

The Schwartz Set contains

The winners

Debian uses the Condorcet method for voting. Simplistically, plain Condorcets method can be stated like so :
Consider all possible two-way races between candidates. The Condorcet winner, if there is one, is the one candidate who can beat each other candidate in a two-way race with that candidate. The problem is that in complex elections, there may well be a circular relationship in which A beats B, B beats C, and C beats A. Most of the variations on Condorcet use various means of resolving the tie. See Cloneproof Schwartz Sequential Dropping for details. Debian's variation is spelled out in the constitution, specifically, A.5.

Debian Project Secretary