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How to Disclose or Sell an Exploit without Getting in Trouble 4: Selling Tips

At the end of his presentation Jim Denaro highlights the aspects, including the respective legislation, to take into account when selling an exploit.

Exploits on sale

Exploits on sale

We should now turn to selling very quickly. Right now there is no law in the U.S. that prohibits the selling of an exploit, and that is a situation that is probably likely to change in not too distant future. But for now, there’s not really much to worry about unless the techniques in developing your exploit – going back a few slides – have some problem, then you still have a problem. But the fact of the sale itself is not something that’s going to get you in trouble. However, there’s a lot of focus on this market now. Here are some recent articles (see right-hand image) from May 2013: “Booming “zero-day” trade has Washington cyber experts worried” and my favorite “The U.S. Senate Wants to Control Malware Like It’s a Missile”. Well, this stuff is dangerous!

Provisions of the National Defense Authorization Act

Provisions of the National Defense Authorization Act

Every year Congress has to pass the National Defense Authorization Act, it sets the budget for DoD and includes a bunch of other stuff that gets stuck in there. This year, for 2014 the Senate version hasn’t been passed yet, it’s still in Congress. The Senate version has provisions that seek to begin the process of regulating the sale of exploits. The House version doesn’t have this, it’s still just in the Senate, but I think this is where it’s headed. The Bill says that the President shall establish a process for developing a policy to control the proliferation of cyber weapons through a whole series of possible actions: export controls, law enforcement, financial means, diplomatic engagement, and so on.

The Armed Services committee’s commentary

The Armed Services committee’s commentary

The Senate Armed Services committee that had the Bill before it was passed to the rest of the Senate had some commentary on this (see right-hand image). They referred to the dangerous software, a global black market, gray market – it starts to look really bad. But they note that we need to have a carve-out for dual-use software and pentesting tools.

European initiative addressing distribution and sale of exploits

European initiative addressing distribution and sale of exploits

In Europe, the European Parliament recently passed a directive (see left-hand image); they’re a little bit ahead of us. This prohibition on a sale of tools, as they call it – basically, exploits – will be required to be enacted by all the member states in short order. This provision prohibits the production, sale, procurement for use, import, distribution of these tools that could be used to commit these enumerated offenses, which is pretty much all the bad things you can think of doing with a computer.

Possible exceptions depending on the intent

Possible exceptions depending on the intent

However, there’s an exception (see right-hand image). It’s a very important exception – for tools that are created for legitimate purposes, such as to test the reliability of systems; and it further notes that in order to violate this law you need to show a direct intent that the tools be used to commit some of the offenses. In both cases, both in the U.S. and in Europe, we’re seeing this trend that’s really going back to the definitional problem of how we define what an exploit is and how we make sure that legitimate tools can still be bought and sold.

Selling exploits - risk mitigation

Selling exploits – risk mitigation

So, this is kind of prospective. We don’t know what the laws are actually going to look like, but I would start thinking like this: think about dual-use tools. I mean, if you write something, don’t put it together as the next greatest hack. You are creating pentesting tools. If you look at software – I’m sure many of you have used Copy II Plus which is backup software – and the manuals for this software have very elaborate disclaimers that it’s strictly being used to back up your floppy, this is not being used to make illegal copies. And that’s where exploits will go. Some exploits will never be able to be looked at as a dual-use tool for sure. I mean, for instance, if you have a nuclear missile equivalent of an exploit, it’s hard to justify the pentesting value of that. But a lot of tools will fall into this area, and that’s where perhaps they should go.

Some other things you might do if you are selling. Know your buyer, to the extent you can. What may happen is someone in the U.S. is going to sell an exploit, is going to go to some channel, and it’s going to come back and get used against some U.S. interest. We might not hear about it because it may be a matter of secret, but this will happen and then there will be a huge drive to stop this from happening very quickly. That’s the same reason, you know, if someone is murdered with a certain type of weapon, that weapon has to be banned – that’s going to happen here. The way laws are created in this country is very reactionary, and I expect that trend to continue here. If you are selling something, don’t sell it through a channel where it will go to some country that’s under an embargo with the United States. Maybe your best bet is just to sell it to the U.S…

Know your buyer, to the extent you can.

Ask for insurances from your buyer so you don’t have knowledge that is going to some place where it’s not supposed go to. You could be lied to, but you can’t control everything, right? But at least you can get an assurance that it’s not going to be used in some illegitimate way.

Using disclaimers is a great idea

Using disclaimers is a great idea

And also, you can always use disclaimer language. I have some nice examples here (see left-hand image). This huge text in the top is actually from a software product many of you have probably used many times; it’s good stuff. I’ve highlighted probably the best of the operative language in it. But if you are selling something, be sure to use some disclaimer language that kind of flows along these lines, that would help you from being charged of being complicit in any sort of illegal use to which the software might eventually be put.

Lastly, I’d just like to highlight this bottom little paragraph which is actually from the Apple iTunes store, it’s the End User License Agreement that comes with that. It requires that you agree that “…you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.” God, that’s some dangerous stuff.

Jim’s contact details

Jim’s contact details

So, thank you! This (see right-hand image) is my contact log. I think we have some time here for questions.

Question: What about using a corporation to limit your liability for disclosure or selling?

Answer: Corporations can be held liable in many cases.

Question: I’d have a question regarding full disclosure vs. responsible disclosure. So, when we do it we do it via responsible disclosure, we contact the vendor. In most cases the vendors get a hotfix within about a week. Sometimes vendors will say: “We need more time,” but sometimes they’re going to say: “We’re not going to fix it and can’t publish it.” Google recently published the fact that they plan to disclose vulnerabilities within 7 days, have a 7-day turnaround. So, what happens if a company like Google intends to publish a vulnerability within the 7-day turnaround period, and the other company says to Google: “Don’t! If you do, we’ll sue you”?

Answer: Well, if Google has some kind of obligation not to – this would depend on the specific circumstances of it – but in this case, if no law has been broken, then Google could publish that without any problems.

Question: In my case, I contact a vendor and tell them I’ve got 10 vulnerabilities which I intend to publish, and they come back to me and say: “If you publish those, we’ll sue you.” And the same thing happens when Google says: “We’re not going to give 30 days; we’ll give you 7 days,” and the company comes back and says: “Google, we’re going to sue you if you publish.” It doesn’t carry the same weight whether they’re trying to sue Google and they’re trying to sue me, for example.

Answer: That’s the unfortunate part.
 

Read previous: How to Disclose or Sell an Exploit without Getting in Trouble 3: Minimizing Disclosure Problems

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