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[liberationtech] FinFisher is now controlled by UK export controls

Danny O'Brien DObrien at cpj.org
Mon Sep 10 14:39:44 PDT 2012


Just to add to this:

It's surprising just how much of the old cryptowar  language is still hanging around ready to trip someone up. The US government is still unwilling to grant blanket exemptions for classes of crypto-using products, so the only way you can know whether you're violating the broad language of the law is to ask very specifically for an export license.  And if you ask, they may say no. This was the issue with much of the United States "Axis of Evil" (Sudan/Syria/Iran/N. Korea) sanctions too  -- Mozilla had to tread very carefully in order to get a permitted exception before the recent sanctions rewrite. That rewrite contains no pre-emptive exemptions (you still have to apply)  and other companies still play far too safe WRT offering downloads to these countries rather than risk asking permission and being turned down.

As Eric says, the UK is part of Wassenaar, which means public domain and personal use crypto is okay to export, but various "strongish" crypto requires a license, at least in theory: http://rechten.uvt.nl/koops/cryptolaw/cls2.htm#Wassenaar


To broaden Wassenaar to include surveillance tech by extending it with regard to specific categories of use is one approach to attempt to dissuade local companies from selling mass surveillance tools to repressive regimes. I know that PI has been thinking and working on this for a very long time, and is not unaware of the problems of creating well-meaning restrictions that can be applied overbroadly. Another legislative approach is to prohibit the distribution of certain tools with certain capabilities to certain target groups (prohibit sales to law enforcement (or all but certain types of law enforcement), government actors, blacklist countries).

I think the real challenge with either strategy is not re-animating the crypto wars, but preventing a well-meaning effort to control the spread of tools of mass surveillance becoming an excuse to, in some countries, investigate or criminalize infosec tool creators and distributors, and in others to create parallel, extrapolated laws that go after  local dissidents who undermine the local public health and morals of the Net through their use or possession of dangerous Internet  tools -- ie using the language controlling surveillance tools  to also  cover circumvention or secure communication tools. You could already go after distributors of such well-regarded tools for domestic crypto violations in a disturbingly large set of countries, though I've not seen anyone do that (partly I think because the commercial sector's use of crypto is similarly unenforced in most countries, but mostly because the prosecutors who go after dissident reporters and technologists aren't particularly au fait with their own crypto law).

We all need to tread very carefully here. Legislators can be taught to see the problem as being rogue states conducting mass surveillance, but closer to home they will tend to see it as individual criminals using spyware. It makes sense if you are thinking about limiting the behaviour of foreign governments to concentrate limiting the local incentives to manufacture and export those tools; you can't, after all, effectively outlaw the practice of those foreign governments. But viewing this simplistically as controlling the tool over  controlling the action is a problematic practice if we accept  code is speech. The connection with the crypto-wars is the belief that we should aim to criminalize bad behavior, not struggle futilely to outlaw the ownership and distribution of particular programs that can be used in pursuit of that behavior.

d.

________________________________________
From: liberationtech-bounces at lists.stanford.edu [liberationtech-bounces at lists.stanford.edu] on behalf of Eric King [eric at privacy.org]
Sent: Monday, September 10, 2012 16:21
To: Jacob Appelbaum
Cc: liberationtech
Subject: Re: [liberationtech] FinFisher is now controlled by UK export  controls

Hi all,

Apologies, I should have taken longer to explain what we this all means.

To get the obvious bit out of the way:  PI spent the first decade of it's existence fighting the crypto wars and is against government control of cryptography. While the governments decision is not the outcome we wanted, as a temporary measure, we welcome what the British government is trying to do.

So to clarify some points:

No new cryptography controls have been put in place. The British government, in seemly trying to do the right thing for once, has used the only power it had to control FinFisher immediately. It's reinterpreted the remnants of the old cryptography controls that were never fully removed and has applied them to FinFisher.

We don't feel the success of the crypto wars has been undone in this action. This is by no means a permanent solution and have said so clearly to the British government. As a method of controlling FinFisher it's stupid and has the potential to be easily circumvented. We're calling for export controls on surveillance technology because of what it is, not because it happens to use cryptography.

However this a hell of a lot of grit that has just been thrown into Gamma's machinery. They will have to re-configure chunks of FinFisher if they want to try evade the controls, and even then the control will very likely remain effective. From this point on it, what this decision means is a little unclear but the likely scenario is that right now Gamma is being investigated for records of every location they have shipped FinFisher to. Updates and technical support should have stopped until licences are granted and while the British government won't stop exports to all the same countries PI might want it to - it will be a significant chunk. These licences will then be published and we'll have some indication as where else FinFisher will be operating.

However there are a hell of a lot of unanswered questions and we've written to the government asking for urgent clarification on the below points:

        • When and in what circumstances was the assessment of the FinSpy system carried out, the conclusion reached and the advice given that a licence to export was required?
        • Had Gamma International previously sought advice from your client as to whether the FinSpy system required export control, when was this and what was the advice given?
        • What audit had been carried out of the export of the FinSpy system to countries outside the EU prior to the advice referred to?
        • What enforcement action is/will be taken against Gamma International for previous exports of the FinSpy system without a licence?
        • Has Gamma International been required to retrospectively apply for licences for previous exports of the FinSpy system? If not, why not?
        • Has Gamma International sought any licences to export the FinSpy system and/or provide technical assistance, and, if so, to which countries and which licences have been granted and which refused?
        • Notwithstanding the generality of question 6 above, material in the public domain suggests that the FinSpy system has been used in Egypt, Turkmenistan, Bahrain, Dubai, Ethiopia, Indonesia, Mongolia and Qatar. Has Gamma sought any licences for exports of FinSpy or the provision of technical assistance to any of these countries? If so, which ones and were licences granted or refused?
        • Kindly provide a detailed explanation and supporting documentation of precisely which components of FinSpy are controlled?

The end goal is a subsection of the Wassenaar technical annex list to be entitled "Surveillance", and control FinFisher directly within it, not because it just happens to use cryptography. In the mean time, this doesn't appear to do any damage elsewhere, but does causes a whole lot of problems for Gamma.

There's more to be said, but as this is part of an ongoing legal action, there are some things that have to remain confidential for the moment. For those who have met me, you'll know I'm terrified of my work in this area doing more harm than good, so I encourage people to call me out on anything you think I've missed or doesn't make sense.  In the mean time I hope the above will help dispel some of the concerns, but please ask if things are unclear, either on or off list.

Best,
Eric


--
Eric King
Head of Research, Privacy International
+44 (0) 7986860013   |   skype:blinking81   |   @e3i5

On 10 Sep 2012, at 19:39, Jacob Appelbaum <jacob at appelbaum.net> wrote:

> Eric King:
>> Hi all,
>>
>> I thought this list would be interested to know that the British Government has decided to place FinFisher under UK export controls. There are a ton of questions that remain to be answered, and it's only part of the bigger goal to control the export of surveillance technology, but it's a good first step!
>>
>>> In a letter sent earlier in August to Privacy International's lawyers Bhatt Murphy, a representative of the Treasury Solicitor stated:
>>>
>>> The Secretary of State, having carried out an assessment of the FinSpy system to which your letter specifically refers, has advised Gamma International that the system does require a licence to export to all destinations outside the EU under Category 5, Part 2 (‘Information Security’) of Annex I to the Dual-Use Regulation. This is because it is designed to use controlled cryptography and therefore falls within the scope of Annex I to the Dual-Use Regulation. The Secretary of State also understands that other products in the Finfisher portfolio could be controlled for export in the same way."
>>>
>>> Press release is here:
>>> https://www.privacyinternational.org/press-releases/british-government-admits-it-has-already-started-controlling-exports-of-gamma
>>>
>>> Full copy of the letter: https://www.privacyinternational.org/sites/privacyinternational.org/files/downloads/press-releases/2012_08_08_response_from_tsol.pdf
>> Best,
>>
>> Eric
>
> This is absolutely fucking horrible. They're controlling it based on
> *cryptography* after we WON the cryptowars? What. The. Fuck. And even
> worse, they must require a license? And they don't state categorically
> that they'll deny it on some kind of humanitarian or anti-crime related
> basis?
>
> I mean, I am sure this is the result of a lot of hard work by many
> people and I don't mean to imply any disrespect. Did this just undercut
> the work from the 90s? Wany people explicitly fought hard to win the
> decision of having our free speech rights apply to the net for code as
> speech.
>
> Argh,
> Jake

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