Open source projects, embargoes and NDAs

Vendors may only disclose to project members under an NDA.

This article is a companion piece to one that I wrote soon after the advent of Meltdown and Spectre, Meltdown and Spectre: thinking about embargoes and disclosures, and another which I wrote more recently, Security disclosure or vulnerability management?. I urge you to read those first, as they provide background and context to this article which I don’t plan to reiterate in full. The focus of this article is to encourage open source projects to consider a specific aspect of the security disclosure/vulnerability management process: people.

A note about me and the background for this article. I’m employed by Red Hat – a commercial vendor of open source software – and I should make the standard disclosure that the views expressed in this article don’t necessarily reflect those of Red Hat (though they may!). The genesis of this article was a conversation I had as part of my membership of the Confidential Computing Consortium, of which Enarx (a project of which I’m a co-founder) is a member. During a conversation with other members of the Technical Advisory Board, we were discussing the importance of having a vulnerability management process (or whatever you wish to call it!), and a colleague from another organisation raised a really interesting point: what about NDAs?

What’s an NDA?

Let’s start with the question: “what’s an NDA”? “NDA” stands for Non-Disclosure Agreement, and it’s a legal document signed by one or more individuals or organisations agreeing not to disclose confidential material[1]. NDAs have a bad reputation in the wider world, as they’re sometimes used as “gagging orders” within legal settlements by powerful people or organisations in cases of, for instance, harassment. They are, however, not all bad! In fact, within the technology world, at least, they’re a very important tool for business.

Let’s say that company A is a software vendor, and creates software that works with hardware (a video card, let’s say) from company B. Company B wants to ensure that when its new product is released, there is software ready to make use of it, so that consumers will want to use it. In order to do that, Company A will need to know the technical specifications of the video card, but Company B wants to ensure that these aren’t leaked to the press – or competitors – before release. NDAs to the rescue! Company A can sign an NDA with Company B, agreeing not to disclose technical details about Company B’s upcoming products and plans to anyone outside Company A until the plans are public. If it’s a “two-way NDA”, and Company B signs it as well, then Company A can tell Company B about their plans for selling and marketing their new software, for instance, to help provide business partnership opportunities. If either of parties breaks the terms of the agreement, then it’s time for expensive legal proceedings (which nobody wants) and the likelihood that any trust from one to the other will break down, leading to repercussions later.

NDAs are common in this sort of context, and employees of the companies bound by NDAs are expected to abide by them, and also not to “carry over” confidential information to a new employer if they get a new job.

What about open source?

One of the things about open source is that it’s, well, “open”. So you’d think that NDAs would be a bad thing for open source. I’d argue, however, that they have actually served a very useful purpose in the development and rise of the open source ecosystem. The reason for this is that companies are often reluctant to have individuals sign NDAs with them, and individuals are often reluctant to sign NDAs. From the company’s point of view, NDAs are more difficult to enforce against individuals, and from the individual’s point of view, the legal encumbrance of signing an NDA – or multiple NDAs – may seem daunting.

Companies, however, are used to NDAs, and have legal departments to manage them. Back in the 1990s, I remember there being a long lag time between new hardware becoming available, and the open source support for it emerging. What did emerge was typically buggy, often reverse-engineered, and rarely took advantages of the newest features offered by the hardware. From around 2000, this has changed significantly: you can expect the latest hardware capabilities to emerge into, say, the Linux kernel, pretty much as soon as the supporting hardware is available. This is to some extent because there are now a large number of companies who employ engineers to work on open source. The hardware vendors have NDAs with these companies, which means that the engineers can find out ahead of time about new features, and have support ready for them when they launch.

There’s a balancing act here, of course, because sometimes providing code implementations and making them open can give away details of hardware features before the hardware vendors are ready to disclose them. This means that some of the engineering needs to take place “behind closed doors” and only be merged into projects once the hardware vendor is ready to announce their specifications to the world. This isn’t as open as one might like. On balance, though, I’d argue that this approach has provided a net benefit to the open source community, allowing hardware vendors to keep competitive information confidential, whilst allowing the open source community access to the latest and greatest hardware features at, or soon after, release.

NDAs and security

So far, we’ve not mentioned security: where does it come in? Well, say that you’re a hardware vendor, and you discover (or someone discloses to you) that there’s a vulnerability in one of your products. What do you do? Well, you don’t want to announce it to the world until a fix is ready (remember the discussion of embargoes in my previous article), but if there are open source projects which need to be involved in getting a fix out, then you need to be able to talk to them.

The key word in that last sentence is “them”. Most – one could say all – successful open source projects have members employed by a variety of different companies and organisations, as well as some who are not employed by any – or work on the project outside of any employer-related time or agreement. The hardware vendor is extremely keen to ensure that any embargo that is created around the work on this vulnerability is adhered to, and the standard way to enforce (or at least legally encourage) such adherence is through NDAs. This concern is understandable, and justified: there have been some high profile examples of information about vulnerabilities being leaked to the press before fixes were fully ready to be rolled out.

The chances, however, of the vendor having an NDA with all of the organisations and companies represented by engineers on a particular project is likely to be low, and there may also be individuals who are not associated with any organisation or company in the context of this project. Setting up NDAs can be slow and costly – and sometimes impossible – and the very fact of setting up an NDA might point to a vulnerability’s existence! Vendors, then, may make the choice only to disclose to open source project members who are governed by an NDA – whether through their employer or an NDA with them as an individual.

Process and NDAs

What does that mean to open source projects? Well, it means that if you’re working with specific hardware vendors – or even dependent on specific software vendors – then you may need to think very carefully about who is on your security/vulnerability response/management team (let’s refer to this as the “VMT” – “Vulnerability Management Team” – for simplicity). You may need to ensure that you have competent security engineers both with relevant expertise and who are also under an NDA (corporate or individual) with the hardware vendors with whom you work. Beyond that, you need to ensure that they are on your VMT, or can be tasked to your VMT if required.

This may be a tough ask, particularly for small projects. However, the world of enterprise software is currently going through a process of realising quite how important certain projects are to the underpinnings of their operation, and this is a time to consider whether core open source projects with security implications need more support from large organisations. Encouraging more involvement from organisations should not only help deal with this issue – that vendors may not talk to individuals on your project who are not under NDA with them. Of course, getting more contributors can have positive and negative effects in terms of governance and velocity, but you really do need to think about what would happen if your project were affected by a hardware (or upstream software) vulnerability, and were unable to react as you had nobody able to be involved in discussions.

The other thing you need to do is ensure that the process you have in place for reporting of vulnerabilities is flexible enough to manage this issue. There should be at least one person on the VMT to whom reports can be made who is under the relevant NDA(s): remember that for a vendor, even the act of getting in touch with a project may be enough to give away information about possible vulnerabilities. Although having anonymous VMT may seem attractive – so that you are not giving away too much information about your project’s governance – there can be times when a vendor (or individual) wishes to contact a named individual. If that individual is not part of the VMT, or has no way to trigger the process to deploy an appropriate member of the project to the VMT, then you are in trouble.

I hope that more open source projects will put VMTs and associated processes in place, as I wrote in my previous article. I believe that it’s also important that we consider the commercial and competitive needs of the ecosystem in which we operate, and that means being ready to react within the context of NDAs, embargoes and vulnerabilities. If you are part of an open source project, I urge you to discuss this issue – both internally and also with any vendors whose hardware or software you use.

Note: I would like to thank the members of the Technical Advisory Board of the CCC for prompting the writing of this article, and in particular the member who brought up the issue, which (to my shame) I had not considered in detail before. I hope this treatment of questions arising meets with their approval!

1 – Another standard disclosure: I am not a lawyer! This is my personal description, and should be used as the basis for any legal advice, etc., etc..