Exploring Cryptographic Software in Debian's Main Archive

To: Software in the Public Interest, Debian Project
From: Roszel C. Thomsen II, Partner, Thomsen & Burke LLP
Date: July 31, 2001
Re: Exploring Cryptographic Software in Debian's Main Archive

Thank you for this opportunity to comment on Sam Hartman's white paper entitled Exploring Cryptographic Software in Debian's Main Archive.

We are providing this information as a general guideline to you. BXA requires that each entity exporting products be familiar with and comply with their affirmative obligations set forth in the Export Administration Regulations. Please note that the regulations are subject to change. We recommend that you obtain your own legal advice when attempting to export. In addition some countries may restrict certain levels of encryption imported into their country. We recommend consulting legal counsel in the appropriate country or the applicable governmental agencies in the particular country.

By way of background, the export of cryptographic software from the United States is governed under the United States Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) administered by the Commerce Department's Bureau of Export Administration (BXA). BXA revised the provisions of the EAR governing cryptographic software most recently on October 19, 2000. I refer to these as the new US Regulations in order to distinguish them from prior regulations that were more restrictive.

When the Clinton Administration came to Washington, encryption items were controlled for export from the United States as munitions under the Arms Export Control Act and the International Traffic in Arms Regulations. Most applications for licenses to export strong encryption items were denied. Industry and public interest groups lobbied for liberalization, and the Clinton Administration reformed the outdated U.S. export controls on encryption items in a series of graduated steps, culminating the new US Regulations. The new Bush Administration is considering further liberalizations that may be published later this year.

Despite these liberalizations, the U.S. export controls on commercial encryption items remain complex and onerous. American companies must submit encryption items for technical reviews by the intelligence authorities prior to export. Exports to some agencies of foreign governments require licenses, as do exports to telecommunications and Internet service providers wishing to provide services to some government agencies. Finally, post-export reporting requirements apply to many exports from the United States. Thus, U.S. encryption export controls continue to impose a significant regulatory burden on American companies, retarding the worldwide deployment of strong cryptography in commercial software programs.

Not all software programs with encryption are commercial products, however. For purposes of the EAR, cryptographic source code controls fall into three categories: (a) open source, (b) community source, and (c) proprietary source. The rules governing exports of each type of source code are different, and they have been amended in important respects in the new US Regulations.

Open source refers to software that is available to the public without restriction free of charge, under a GNU-style license agreement. Debian would appear to fall into this category. The old regulations allowed the export of open source to any end-user without a technical review, provided that the person making the open source available filed a contemporaneous notification with BXA and the National Security Agency (NSA). However, the old regulations were silent with respect to restrictions (if any) on the export of compiled executable software derived from open source.

Under the new US Regulations, not only the open source, but also the compiled executable software derived from open source, is eligible for export under the same conditions as the open source itself, provided that the compiled executable is available without restriction and free of charge. Unfortunately, if you include the compiled executable software into a product that you distribute for a fee, then the resulting product is subject to all of the rules that apply to commercial software programs. For example, they must be submitted to BXA and NSA for a one-time technical review, described above.

Community source refers to software that is available to the public free of charge for non-commercial use but that contains further restrictions on commercial use. Community source may be exported under essentially the same conditions as open source, but community source remains subject to more detailed reporting requirements.

Proprietary source refers to all source code that is neither open nor community source. Exporters may provide proprietary source code to any end-user in the EU and its partners, and to any non-government end-user in other countries, promptly upon filing of a technical review with BXA and NSA. The same reporting requirements applicable to community source also apply to proprietary source.

Please keep in mind that persons in the US who may post to sites outside the US are governed by US law, even if they do so in their individual capacity. Therefore, you may want to warn persons in the US that their posting to the current crypto server outside the US are still subject to US regulations.

Finally, you should be aware that a core set of US export controls apply to all exports of open source cryptographic software from the United States. In essence, these controls prohibit the export of open source cryptographic software under License Exception TSU to (1) prohibited parties (listed at http://www.bxa.doc.gov/DPL/Default.shtm), (2) prohibited countries (currently Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria and Taliban Occupied Afghanistan) and (3) design, development, stockpiling, production or use of nuclear, chemical or biological weapons or missiles.

With this background, your specific questions with respect to Debian are address in the order that they appear in Sam Hartman's white paper, below in italics.

Exploring Cryptographic Software in Debian's Main Archive

Sam Hartman

Debian Project

Debian is a free operating system. Currently for US export reasons, Debian splits cryptographic software off into a separate archive located outside the US. This document summarizes the questions we would need to answer from a legal standpoint in order to merge these two archives.

About Debian

Debian is a group of individuals working to produce a free operating system. These individuals are responsible for decisions they make while working on Debian; there is no legal Debian organization that developers work for or that decisions are made on behalf of. There is a registered non-profit, Software in the Public Interest (SPI), that holds money and resources for Debian. So decisions developers make may impact resources owned by SPI and thus impact SPI. Other Debian resources are owned by various sponsors. Debian generally depends on sponsors for network connectivity. There are also third-party groups that copy the Debian software onto mirrors so that people around the world can download and use it. Others make and sell CDs of Debian. All these groups might be accountable to a greater or lesser extent for the decisions Debian makes. We want to conduct ourselves in a manner that minimizes the liability for all parties and, within that constraint, maximizes the value of our efforts.

As with all operating system vendors, Debian needs to include cryptographic software. This software provides security, allows users to engage in Internet commerce, and accomplishes other tasks requiring cryptography. Today, this software is stored on a server outside the United States, known as the non-US server. Currently Debian takes no measures to assist US developers in following export control regulations if they upload software to the non-US archive or to prevent them from uploading software. We would like to move cryptographic software from the non-US server onto our main server in the US.

With the increasing networked nature of the work, and the fact that more and more critical functions are being placed on computing platforms, and the unfortunate growth of mischief and deliberate malice, security is going to be increasingly important. Cryptography is an important corner stone of a number of security processes. Any OS that does not make an effort to seamlessly integrate cryptography is unlikely to be competitive.

Putting all software on a single source, and the corresponding ability to create a single set of CD's that have integrated cryptographic support makes it easier for the users, makes it easier for CD vendors, simplifies the task of developers uploading software to these sites, and simplifies the task of replicating the software repositories on the internet.

The rest of this document will focus on the main server within the US and on its mirrors and copies around the world. It's important to realize that there is currently a parallel structure set up to deal with the non-US server.

Every few months Debian developers release a new official version of Debian. This software is made available on the main (and for cryptographic software, the non-US) server to a group of primary mirrors around the world. These mirrors copy the software off the main server and make it available to users and secondary mirrors. The users can use HTTP, FTP, or a variety of other methods to retrieve the software. CD images are made available to users and resellers. These images can be burned onto physical CDs by individuals or by those wanting to sell/give away Debian.

In addition, there are two constantly evolving releases of Debian: the testing and unstable releases. These releases are updated on a daily basis by developers around the world. Like the official releases, these releases are made available on the main and non-US servers to primary mirrors. The primary mirrors make software available via HTTP, FTP and other methods both to end users and to secondary mirrors. CD images are sometimes made from these releases. The important difference between these evolving releases and the official release is that they are constantly changing.

Often, developers upload binaries and source code at the same time. However, we support many different types of computers each of which requires different binaries for the same source code. Most developers make binaries only for one of the computer architectures we support when they upload a changed program. Automated processes go and use the source code they have uploaded to make binaries for the other architectures. As such, some binaries for a particular source code program will likely be uploaded at a later time than that source code.

Some Debian developers also use Debian resources to work on as-yet-unreleased software. The primary resource that is useful for this task is the Debian CVS server. Source code to projects on this server is almost always available to the public, but may change many times in a day. The CVS server is in the US.

However most Debian software is not developed directly by Debian developers. Instead, the software is released to the public by some third party. Some software is made available to the public on sites within the US, while other original authors release their software on sites outside the US. Debian developers are responsible for integrating the software into Debian. As part of this job, many Debian developers end up working closely with the original software author, often contributing code back to the original release.

The software in Debian complies with the Debian Free Software Guidelines; the DFSG. We believe this software has publicly available source code in the sense of section 740.13(e) of the EAR. The guidelines require that the source code be redistributable. The DFSG indirectly requires that one be able to distribute a product based on the source code without paying a fee. We distribute all the source code in Debian as part of our releases. Other software is distributed in our non-free archive, but our focus in this document is on the DFSG-free software. We would be interested in knowing to what extent we could move non-DFSG-free software for which we can distribute source code into the US, but we want to make sure advice in this area does not get confused with advice on how to handle DFSG-free software.

Debian developers live around the world and are citizens of many countries. Obviously some are US citizens, but many others are not. Some may be citizens of the seven forbidden countries in EAR section 740.13(e).

As mentioned, we have mirrors all around the world. We do not have any official mirrors (mirrors with which the project is connected) in any of the seven countries listed in EAR section 740.13(e), although since our software is publicly available, it might be copied into these countries. Most mirrors within the US currently only mirror the main server (the one without cryptography), although some mirror both the main and non-US portions of the archive. Debian takes no responsibility for mirrors within the US that mirror the non-US portion of the archive.

Our Goal

We want to include cryptographic software in our main archive. We want to understand the risks to developers, users, SPI, mirror maintainers, CD resellers, sponsors and any other parties that are connected with Debian so that we can make an informed decision. We want to be able to document and publicize these risks so that these parties do not commit a crime through ignorance. Obviously, we also want to avoid taking unnecessary risks.

In particular we would like to consider the following activities:

END Debian Document Preamble

I will try to reflect these goals in my answers to your questions. By way of summary, I think that an initial notification should suffice for the current archive and updates thereto. A new notification would be required only if a new program with encryption should be added to the archive. Additional distribution of freeware does not require further notification. However, commercial versions would be subject to the technical review, licensing and reporting requirements that apply to other commercial products. Predicting the future of changes to laws or regulations is difficult, but if the law changes, you would either have to take down the site or modify it in order to remain in compliance. You have no obligation to inform other constituencies of their legal obligations, but if you have a list of frequently asked questions, I would be pleased to suggest appropriate responses that you might wish to offer.

Questions (Note, each question by Debian is marked with "D:")

D: Do we need to notify the Bureau of Export Administration (BXA) about software we add to releases?

If the notification is drafted properly, and the archive remains on the site identified in the notification, then you only have to file a single notification with BXA for the initial archive. Only one notification for one U.S. site is required; no separate notification is required for mirror sites inside or outside the U.S. This notification would only have to be updated if you added a new program implementing encryption.

	Department of Commerce
	Bureau of Export Administration
	Office of Strategic Trade and Foreign Policy Controls
	14th Street and Pennsylvania Ave., N.W.
	Room 2705
	Washington, DC 20230

	Re:  Unrestricted Encryption Source Code Notification
	Commodity:	Debian Source Code

	Dear Sir/Madam:
	Pursuant to paragraph (e)(1) of Part 740.13 of the U.S. Export
	Administration Regulations ("EAR", 15 CFR Part 730 et seq.), we are
	providing this written notification of the Internet location of the
	unrestricted, publicly available Debian Source Code. Debian Source Code
	is a free operating system developed by a group of individuals,
	coordinated by the non-profit Software in the Public Interest.  This
	archive is updated from time to time, but its location is constant.
	Therefore, and this notification serves as a one-time notification for
	subsequent updates that may occur in the future.  New programs will be
	the subject of a separate notification.  The Internet location for the
	Debian Source Code is:  http://www.debian.org.

	  This site is mirrored to a number of other sites located
	outside the United States.

	  A duplicate copy of this notification has been sent to the ENC
	Encryption Request Coordinator, P.O. Box 246, Annapolis Junction, MD

	  If you have any questions, please call me at (xxx) xxx-xxxx.


D: What information do we need to include in the notifications?

The draft language above includes the information that you need to include in the notification

D: How often do we need to notify? We want to notify as little as possible as it creates more work for us and for the government, but we want to notify as often as necessary to follow the regulations.

As drafted above, and assuming that the archive remains on the Internet site identified in the notification, you should not have to file a subsequent notification for subsequent updates. You would only file another notification if you added a new program implementing cryptography.

D: If we move our cryptographic software into this country, and the laws or regulations change to be more restrictive, what are we likely to lose? Would we have to destroy any software, or CDs? Would we have to remove it from our master or secondary sites? If we use the increased availability of cryptographic software to improve the security of the rest of the system, and the cryptographic legal climate worsens, would be likely to have to discard all copies of such software in the U.S.?

The trend has been toward increased liberalization of the export controls on cryptography in the United States, rather than increased restrictions. This trend has been constant over the past decade and has accelerated in the past year. We cannot advise you with respect to what you might lose unless and until new regulations are published. However, we believe that you would retain copyrights to the software and some, albeit perhaps more limited, rights to export.

D: In order of decreasing preference, we would like to notify:

I think that you only have to file a new notification if you add a new program that incorporates cryptography. Updates to existing programs should be covered by the broad language of the notification we suggested, above.

D: New packages enter the debian archive through the following sequence of steps. At what point must the notification happen?

  1. Upstream developer releases a package as open-source. This step gets skipped in the case of a native-Debian package.
  2. A Debian developer packages the source and binary for Debian, frequently with source changes.
  3. The package is uploaded to ftp-master, incoming.
  4. The new package fails to install, because it's new.
  5. Ftp admins add the needed records for the package.
  6. The package installs into the archive, within a few days.
  7. The package gets copied to the mirror sites.

The regulations are pretty clear that the notification has to occur prior to or contemporaneous with public availability. Exports prior to public availability require an export license. Therefore, if the archive in step 3 is not publicly available, then either the package must be made publicly available prior to step 3 (and notifications sent), or export licenses will be needed for Debian developers. If the archive in step 3 is publicly available, then notification at that point would eliminate the need to have export licenses for Debian developers.

D: If the upstream author has notified BXA, is the notification needed? (Packaging for debian can involve modifications to the source involving file locations, and occasionally functional differences, although the general goal is to make the upstream code work in Debian with minimal modification.)

If the upstream author has notified BXA, that is sufficient.

D: Do we need to notify when new binaries (object code) are added if we have already notified for the source code?

I do not think that you have to file a new notification for object code, provided that a notification for the source code has been filed.

D: Is notification required for programs that do not contain crypto algorithms, but are linked against crypto libraries? What about programs that launch other programs in order to do cryptographic functions?

As long as the program is open source, it may include an open crypto API and still qualify under License Exception TSU.

D: New programs can be checked easily prior to their release (and notification done at that time), but when an update is performed, there isn't a manual step at which to do the notification. Would it be acceptable to notify BXA for each addition of software, with an indication that future updates may include the addition of crypto functionality?

Yes. Overreporting should probably be avoided where reasonable, but underreporting must be avoided. Future updates of an existing program do not require separate notification. Only new programs require separate notification.

D: Can we automate the process of sending in notifications?

You may automate the process of sending notifications. This in an internal procedural matter. BXA and NSA do not care how you handle the filing of notifications internally.

D: What form should the notification take?

The BXA notification may be in either electronic or paper form; however, the NSA notification must be in paper form.

D: Who can send in the notifications? For example, do they need to be a US citizen?

Any person may send in the notification; citizenship is not relevant.

D: Are there any other concerns we should be aware of? What steps other than notification do we need to take?

Other than notification, you might consider implementing a reverse IP lookup that identifies the computer requesting the download, and that blocks downloads of the cryptographic archive to countries embargoed by the United States: Cuba, Iran, Iraq, Libya, North Korea, Syria, Sudan and Taliban Occupied Afghanistan. In addition, you might consider having a provision in your license agreement, or a separate screen prior to download, that advises the person downloading the software as follows:

This software is subject to U.S. export controls applicable to open source software that includes encryption. Debian has filed the notification with the Bureau of Export Administration and the National Security Agency that is required prior to export under the provisions of License Exception TSU of the U.S. Export Administration Regulations. Consistent with the requirements of License Exception TSU, you represent and warrant that you are eligible to receive this software, that you are not located in a country subject to embargo by the United States, and that you will not use the software directly or indirectly in the design, development, stockpiling or use of nuclear, chemical or biological weapons or missiles. Compiled binary code that is given away free of charge may be re-exported under the provisions of License Exception TSU. However, additional technical review and other requirements may apply to commercial products incorporating this code, prior to export from the United States. For additional information, please refer to www.bxa.doc.gov.

D: Currently, users around the world can access and potentially download software that is awaiting integration into our archive. Likely, we would do any necessary notifications as software is processed into the archive, so software in this state would be awaiting notification. Would this be a problem? If so, would it be acceptable to set up an alternate queue of cryptographic software awaiting integration into the archive available only to our developers? In order to process software into our distribution, developers who are often outside the US need to examine the software and make sure it meets certain guidelines. How should we accomplish this access? Are there any other solutions to this pre-notification area of the archive we should consider?

One issue we often run into is software patents. Clearly the integration of cryptography into software doesn't remove any of the patent concerns we would normally have to think about. However, are there any new issues we need to consider when patents interact with cryptography export regulations? It seems that at least for exemption TSU (section 740.13 of the EAR), patents do not influence whether the source code is public.

It is important to differentiate between the archive that has been a subject of notification, and new programs. You can update the archive that has been a subject of notification without further notification, as described above. Only new programs need to be subject of a separate notification, prior to posting. If new programs must be reviewed by developers prior to posting, and such software is not both publicly available and already notified to the U.S. government, then I recommend that you consider obtaining an export license authorizing this limited, pre-notification review. You are correct that patents do not disqualify software from eligibility for export under License Exception TSU.

D: Distribution, Mirroring and CDs

Do our mirrors within the US need to notify the BXA if we add cryptography to our archive? How often do they need to notify BXA? We would like to avoid a situation where mirrors have to notify for each new program Debian adds to the archive, even if our master server must send in such notifications. We need to keep operations simple for mirror operators. What, if anything, would mirrors outside the US need to do?

If we send an update to a mirror rather than waiting for it to download software, do we need to take any special steps? What if we send a mirror a request to download new/changed software?

Once the notification has been filed for the central server, no further notification is required for mirror sites.

D: Which of the following vendors (if any) would be able to ship unmodified Debian binaries (and source) with only notification? Which would require review and approval? Could the review be concurrent with shipment, or must approval predate shipment?

A) mail-order shipment of CD's for the cost of the media?
B) mail-order shipment of CD's for profit?
C) off-the-shelf sales of CD's for the cost of the media?
D) off-the-shelf sales of CD's for profit?
E) vendor providing CD's from A or C above, along with hardware. HW sold at a profit, but with no preinstall?
F) E, but with software pre-installed?
G) any of the above, selling support for the software?

If it's easier, another way to look at this is: what conditions must be met for the vendor to ship binaries under License Exception TSU, and what expenses is the vendor allowed to recover costs and/or sell at a profit?

Reasonable and customary fees for reproduction and distribution are allowed, but not license fees or royalties. Support also is allowed, subject to the above limitation.

D: If the one-time review is required for unmodified binaries shipped for-profit, can that approval be used by other vendors which are shipping unmodified binaries?

A one time review is for the product, and is vendor-independent.

D: Would it be acceptable to set up an official mirror in a country forbidden in EAR section 740.13(e)?

You would have to apply for a license to set up an official mirror in an embargoed country.

D: If it is technically infeasible to block access from the T7 countries to a web (or ftp, etc) server, does due diligence require extreme measures? Does the defacto standard of (US) industry common-practice meet due diligence?

The de facto industry standard should suffice. I hope that the government will recognize that any system devised by man can be defeated, with enough effort.

D: What steps should we take if we become aware of someone downloading software into one of these countries from a mirror within the US? What if we become aware of downloads into one of these countries from a mirror outside the US?

Some of our developers may live in or be citizens of the seven countries forbidden for exemption TSU. Would it be a problem for these developers to have access to cryptographic software on our machines? Would we need to ask them not to download such software? What steps should we take if we become aware of them downloading cryptographic software?

Simply posting cryptographic software on a server that may be accessible from an embargoed country does not constitute knowledge that the software has been exported there. Therefore, criminal liability would not apply to the act of posting. We recommend that you perform IP checking and deny downloads to known embargoed countries. This due diligence also would provide a defense to a claim of civil liability. If you find out that your software has been downloaded to a prohibited destination, then I recommend that you block future downloads to that specific site unless and until you obtain a license from BXA.

Debian thanks the Hewlett-Packard Linux Systems Operation for their support in obtaining this legal opinion.