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Good News on the Cyber Resilience Act

Tuesday, December 19, 2023 - 04:01 by Mike Milinkovich

As the title says, there is good news to share on the progress of the European Union’s proposed Cyber Resilience Act (“CRA”) as the final revisions agreed to in the trilogue negotiations appear to largely exclude the open source community from its scope.

I have written (here and here) and spoken extensively about our concerns with the European Union’s proposed Cyber Resilience Act (“CRA”) in the past. As originally drafted, the CRA would have had an enormous negative impact on both the open source community and the EU’s innovation economy. In short, it would have required most open source projects (and every open source project that matters) made available in Europe to meet unrealistic regulatory requirements related to their secure software development and maintenance. OSS projects would have also been required to affix the CE Mark on their releases certifying that these regulatory requirements had been met, which additionally would have required outside audits performed for critical infrastructure projects such as operating systems. You can read the links above if you want to get a full understanding of the dire implications of the original draft of the CRA.

While the Eclipse Foundation has always shared the goals of the CRA to improve the state of security in the software industry, we have been very vocal in expressing our concerns with how unrealistic requirements could damage the open source community and Europe’s innovation economy. We have been very active in raising community awareness of the issues over the past year. For example, we helped facilitate two open letters co-signed with many of our peer organizations detailing the issues (here and here). 

But we also invested a great deal of time and energy in constructively engaging with policymakers by providing explanations of the functioning of our ecosystems and technologies. The European Commission, the European Parliament, the Council through the Spanish Presidency, as well as numerous policy makers at the national level have all been open to our contributions and recognise our efforts to protect European open innovation. I would like to thank my colleagues Gesine Freund, Enzo Ribagnac, Mikaël Barbero, and Gaël Blondelle for their many contributions to this process. 

We were not alone in these efforts. An assuredly incomplete list of other open source organizations that contributed to raising awareness includes: Apache Software Foundation, Internet Society, Free Software Foundation Europe, Linux Foundation, Mozilla Foundation, NLNet Labs, Open Source Initiative, Python Software Foundation, The Document Foundation, and many others. OpenForum Europe played a pivotal role in facilitating communication between these groups, and Ciarán O’Riordan at the OFE deserves recognition for his yeoman’s effort in coordinating the community’s input throughout the discussions on the CRA. 

On December 1st it was announced that the EU co-legislators had reached political agreement on the CRA. Although the final text is still being worked on, we are happy to report the open source community has been listened to. The revised legislation has vastly improved its exclusion of open source projects, communities, foundations, and their development and package distribution platforms. It also creates a new form of economic actor, the “open source steward,” which acknowledges the role played by foundations and platforms in the open source ecosystem. This is the first time this has appeared in a regulation, and it will be interesting to see how this evolves. The Eclipse Foundation will be investing a great deal of effort into helping refine this concept and its implementation to ensure it aligns with the norms of the open source community. The final revisions also extended the implementation phase to three years, which means full compliance with the CRA will likely start in early 2027. OpenForum Europe’s recent press release on the CRA is certainly worth a read for additional context. 

It is important to recognize and thank the many people that were involved in achieving this significantly better outcome. Both those who were involved from the side of the co-legislators who genuinely listened and made extensive improvements, and the many people from the open source community who invested their time and energy into explaining the unique requirements of the open source community. 

But this journey is only beginning. 

It is important to note that while the CRA has been revised to largely exclude the open source community from its scope, this legislation will still have an enormous impact on the software industry as a whole. 

Open source projects will not be required to directly implement the mandated processes described in the CRA. But every commercial product made available in the EU which is built on top of those open source projects will. For the first time in the software industry’s history, it will soon have regulatory requirements for secure software development and maintenance. I predict this will put pressure on projects and communities to enhance their processes to assist in downstream commercialization. 

After all, if a project is used in hundreds of products, doing the bulk of the CE Mark conformance work in the project rather than repeating the effort hundreds of times makes enormous sense. But as we all know, OSS projects at the moment simply do not have the resources to do this. It is impossible to know how all of this will play out, but an optimistic hypothesis is that once companies are required by law to meet secure software development practices they will be incented to invest in the upstream projects they rely upon. The Eclipse Foundation will be working hard to ensure that we evolve to support the needs of our committers, projects, and members in order to support the implementation of these new regulatory requirements. We will be discussing this early in the new year. 

Interesting times!