The Legal Architecture of the Certificate Authority Trust Model. Steven Roosa December 9, 2010

Transcription

1 The Legal Architecture of the Certifite Authority Model Steven Roosa December 9, 2010

2 The Subject Matter of Our Discussion I. An overview of the CA Model II. Its putative legal architecture III. Legal analysis IV. Where does it go from here?

3 An Overview of the CA Model Internet

4 Please buy our SSL certs! Browser Certs CA Bob s Super Cert $$$ Website Operator Browser Certs SSL Cert Internet SSL Cert: I am ABC Bank To be trusted? Relying Party / End User I trust you to be ABC Bank

5 So, Why Should Anyone Care About Certs? Any CA n issue an SSL cert to any website stating that it is ABC Bank End-user trusts Bob s Super Cert that issued the SSL cert to ABC Bank ALONG WITH... Every CA trusted by the browser (roots and cross-signed certs) So, how many CAs does the end-user trust....

6

7 Who are the CAs? You ve probably heard of these: VeriSign DigiCert Comodo Entrust But what about these: Dhimyotis S.A. DigiNotar EBG Bilisim Teknolojileri ve Hizmetleri Chunghwa Telecom Co. Ltd. Turk

8 CA Compromising the CA Model Browser Certs Browser Cert Unauthorized SSL Cert Website Operator HackerAttacker.com Internet Unauthorized SSL Cert: I am ABC Bank Relying Party / End User I trust you to be ABC Bank

9 CA Compromising the CA Model Browser Cert Browser Certs Internet Unauthorized SSL Cert: I am ABC Bank Relying Party / End User I trust you to be ABC Bank

10 Common Law, Statutes, etc. Browser- CA Agreement CA Software License Agreement Relying Party Agreement Cert Practice Statement Subscriber Agreement Website Operator Website Terms of Use To be trusted? Relying Party / End User

11 Zooming in on the CA documents aimed at the End User: 1. What do the docs say? CA Relying Party Agreement Cert Practice Statement Relying Party / End User

12 CA RPA and CPS What Do the RPA and CPS Say About Being Bound? This Agreement becomes effective when you... rely on any VeriSign Information [which includes, but is not limited to, certs] -- VeriSign RPA v. 4.0 This Agreement becomes effective when your SSL-enabled device... is presented with a Certifite or you are presented with a Site Seal issued by DigiCert and... your SSL-enabled device verifies the authenticity of DigiCert's digital signature -- DigiCert RPA v. 1.8

13 CA RPA and CPS What do the RPA and CPS Say About the End-User s Obligations? 5. Your Obligations. As a Relying Party, you are obligated to ensure the reasonableness of your reliance... by: (i) assessing whether the use of a Certifite is appropriate under the circumstances; (ii) utilizing the appropriate software and/or hardware to perform digital signature verifition or other cryptographic operations... ; and (iii) checking the status of a Certifite.... as well as the validity of all the Certifites in its chain. -- VeriSign RPA v. 4.0

14 CA RPA and CPS What do the RPA and CPS Say About Indemnity? 10. Indemnity. You agree to indemnify, defend and hold harmless Company, any non- VeriSign CA or RA... from any and all third party claims, suits... (including reasonable attorney's fees and expenses) arising from (i) your failure to perform the obligations of a Relying Party in accordance with this Agreement, (ii) your reliance on a Certifite that is not reasonable under the circumstances, or (iii) your failure to check the status of a Certifite to determine if the Certifite is expired or revoked. Company shall promptly notify you of any such claim, and you shall bear full responsibility for the defense of such claim (including any settlements)... The terms of this Section 10 will survive any termination of this Agreement. -- VeriSign RPA v. 4.0

15 CA RPA and CPS What Do the RPA and CPS Say Regarding CA Liability? Examples: 1. Example: Per Relying Party, Per Certifite: $10,000. (Entrust SSL-CPS v. 2.4) 2. Example: Relying Parties on a Per Certifite Basis: $2,000. (DigiCert CPS v. 4.01) 3. Example: Relying Parties on a Per Certifite Basis: $100,000. (VeriSign RPA v. 4.0)

16 CA RPA and CPS Issue Spotting: CA v. End-User Is there a Contract? Are certain provisions unconscionable? Is any provision barred by statute? Are the RPA or CPS voidable beuse of the CA s material misrepresentations or omissions?

17 CA RPA and CPS Relevant Law Formal elements of contract 1. Offer and Acceptance 2. Consideration (vapor element) 3. Capacity of the parties 4. Intent to be bound by terms (meeting of the minds) 5. Legal object 6. Writing requirement (but only real estate, goods, etc.)

18 CA RPA and CPS Zooming in on Acceptance and Intent Requirements It is axiomatic that no contract exists in the absence of a mutual intent to be bound. International Minerals and Mining Corp. v. Citicorp North Ameri, Inc., 736 F. Supp. 587, 594 (1990) In order for a contract to form, however, there must be a "meeting of the minds," as evidenced by each side's express agreement to every term of the contract. State v. Ernst & Young, L.L.P., 386 N.J. Super. 600, 345 (App. Div. 2006) [A]ctual or constructive notice of a site s terms and conditions prior to using the site. Major v. McCallister / ServiceMagic, Inc., 302 SW 3d 227 (2009)

19 CA RPA and CPS No Acceptance. No Intent to be Bound. Conclusion: Relying Party Agreement Contract Certifition Practice Statement Contract

20 CA End-User v. CA Fiduciary Duties Duties of a Volunteer Tort - Negligence

21 tort claim? CA Relevant Law Tort Elements: 1. Existence of a Duty (is the risk foreseeable) 2. Breach of Duty 3. Proximate Cause 4. Damages The risk reasonably to be perceived defines the duty to be obeyed.... Jerkins v. Anderson, 191 N.J. 285 (2007)

22 tort claim? CA What Risk is Foreseeable? Risk According to the ABA, cir 2001: CASE A: the risk of a CA inadvertently issuing a certifite linking a subscriber s distinguished name to the public key of an imposter who is then able to spoof the subscriber s digital signature by using his own private key... ABA DRAFT PKI Assessment Guidelines, v. 0.30, 2001

23 tort claim? CA What About the RPA and CPS? Do the RPA or CPS impact the analysis of foreseeability?

24 tort claim? CA CA RPA and CPS describe the potential harm to the end-user under the CA Model. End-user = foreseeable plaintiff. Relying Party Agreement Cert Practice Statement Subscriber Agreement Certifition Policy RFC 5280 End-user is at the center of the CA Model and described as at risk. Relying Party / End User

25 tort claim? CA

26 tort claim? Issue Spotting: End-User v. Website Operator Does the Website Operator s terms of use bar a potential tort claim by the end-user: Is the website operator protected by the disclaimers of liability and loss limitation provisions found in the Website s Terms of Use? 1. Legal Fraud 2. Equitable Fraud 3. Unclean Hands 4. Mutual Mistake

27 tort claim? Consider Website Representations: Please Rely on SSL Secure browsers employ secure sockets layer (SSL) technology to communite with servers. This technology encrypts or scrambles the communition (i.e. your account information) so it's virtually impossible for anyone other than [us] to read it. SSL authentites that the server you have connected to is the one it purports to be. You n be assured that you are actually communiting with [us], and not a third party trying to intercept the transaction. How n I tell when my connection is secure? The padlock or key icon on your browser, inditing a secure connection, should appear locked or connected AFTER you have successfully logged in to the website...

28 tort claim? Consider Website Operator s Warnings to End-User Regarding SSL and CA Model:

29 tort claim?

30 tort claim? CA On notice, and party to, undisclosed anti-enduser regime? Relying Party Agreement Cert Practice Statement Website Operator Subscriber Agreement Certifition Policy Website Terms of Use To be trusted? Relying Party / End User

31 Where Do We Go From Here? 1. EV Certifites Better in some ways, but worse in others A. Guidelines issued by CA/Browser Forum B. Same defects as with other CA-issued legal documents C. Tighter verifition standards for subscriber identity D. The requirement of $ 5 Million in General Liability and D&O Insurance Coverage what it really means

32 Where Do We Go From Here? 2. Alternative Legal Models A. Utah legal regime for CA s (repealed) B. A federal system like the Carmack Amendment for motor rriers; 49 U.S.C. Sec et seq. C. Better legal documentation and notice