the question that the EFF et al have put towards the AV industry (besides having already been asked and answered some years ago) is a little banal, a little pedestrian, a little sterile. real life is messy and complicated and things don't always fit into neat little boxes. i wanted to try to get people to think outside the box with respect to complicity, what it means, what it would look like, etc. but i think some people have a hard time letting go of the straightforward question of complicity that has been put forward so let's start by talking about that.
has the NSA (or other organization) asked members of the AV industry to look the other way and has the AV industry (or parts thereof) agreed to that request? almost certainly the NSA has not made such a request, for at least a couple of reasons:
- telling people about your super-secret malware is just plain bad OpSec. if you want to keep something secret, the last thing you want to do is tell dozens of armies of reverse engineers to look the other way.
- too many of the companies that make up the AV industry are based out of foreign countries and so are in no way answerable to the NSA or any other single intelligence organization.
- there's quite literally no need. there are already well established techniques for making malware that AV software doesn't currently detect. commercial malware writers have been honing this craft for years and it seems ridiculous to suggest that a well-funded intelligence agency would be any less capable.
now while it seems comical that such a request would be made, to suggest that the AV industry would agree to such a request would probably best be described as insulting. whatever you might think of the AV industry, there are quite a few highly principled individuals working in that would flat out refuse, in all likelihood regardless of what their employer decided (in the hypothetical case that the pointy-haired bosses in AV aren't quite as principled).
now please feel free to enjoy a sigh of relief over the fact that i don't think the AV industry has secretly agreed to get into bed with the NSA and help them spy on people.
done? good, because now we're going to take a deeper look at the nature of complicity and the rest of this post is probably not going to be nearly as pleasant.
here's one of the very first things wikipedia has to say about complicity:
An individual is complicit in a crime if he/she is aware of its occurrence and has the ability to report the crime, but fails to do so. As such, the individual effectively allows criminals to carry out a crime despite possibly being able to stop them, either directly or by contacting the authorities, thus making the individual a de facto accessory to the crime rather than an innocent bystander.
in the case of government spying we may or may not be talking about a crime. the government says they broke no law and observers speculate that that may be because they've subverted the law (much like they subverted encryption algorithms). so let's consider a version of this that relates to ethical and/or moral wrong-doing instead of legal wrong-doing:
an individual is complicit in wrong-doing if he/she is aware of it's occurrence and has the ability to alert relevant parties but fails to do so. as such, the individual effectively allows immoral or unethical people to carry out their wrong-doing despite possibly being able to stop them either directly or by alerting others who can, thus making the individual a de facto accessory to the wrong-doing rather than an innocent bystander.
in this context, could the AV industry be complicit with government spying? perhaps not directly, not in the sense that they saw what the government was doing and failed to alert people to that wrong-doing. however, what about a different wrong-doing by a different entity but still related to the government spying?
hbgary wrote spyware for the government. this became public knowledge in the beginning of 2011. by providing the government with tools to perpetrate spying they become accessories to that spying.
hbgary was and is a partner of mcafee. now what is the nature of this partnership? hbgary is an integration partner. they make technology that integrates into mcafee's endpoint security product to extend it's functionality. mcafee does marketing/advertising for this technology and by extension for hbgary, giving them exposure, lending them credibility, and generally helping them make money. that money is almost certainly re-invested into research and development of hbgary's products, which includes governmental malware that's used for spying on people/organizations. there are mcafee customers out there right now whose security suite includes components that were written by known malware writers and endorsed by mcafee (although they make sure to weasel out of responsibility for anything going wrong with those components with some fine print). mcafee didn't break off the partnership when hbgary's status as an accessory to government spying became known, and since they didn't break off the partnership you can probably make a safe bet that they didn't warn those customers that part of their security suite was made by people aiding the government in spying either. even if we ignore the fact that mcafee aids a business that writes malware for the government, mcafee's failure to raise the alarm about the possible compromising nature of any content provided by hbgary makes them accessories to hbgary's wrong-doing. by breaking ties with hbgary and warning the public about what hbgary was up to they could have had a serious impact on hbgary's cash flow and hurt their ability to win contracts and/or execute on their more offensive espionage-assisting projects. they didn't do any of that and that makes them complicit in the sense discussed a few paragraphs earlier.
the rest of the AV industry may not be directly aiding hbgary's business but, like mcafee, they have failed to raise any alarm about hbgary. they could have done much the same as mcafee by warning the public, with the added bonus that they would have hurt one of the biggest competitors in their own industry while they were at it and that would have benefited all of them (except mcafee, of course). again, failing to act to help prevent wrong-doing makes them a de facto accessory to that wrong-doing. the AV industry as a whole is complicit in the sense discussed earlier.
of course, the AV industry isn't alone in being accessories to an accessory to government spying, and that brings up a consideration that should not be overlooked because there is a larger context here. historically, the culture of the AV industry has been one that values being very selective in things like who to trust, who to accept into certain groups, etc. add to that a very narrowly defined mission statement (to fight viruses and other malware) and it's little wonder that the ethical boundaries that developed in the early days were so dead-set against hiring, paying, or doing anything else that might assist malware writers or possibly promote malware writing. heck, i knew one member who wouldn't even engage viruses writers in conversation, and another who said he was wary of hiring anyone who already knew about viruses just in case they came by that knowledge through unsavoury means. aiding malware writers, turning a blind eye to their activities, etc. are things that normally would have violated AV's early ethical boundaries.
by contrast, the broader security industry is highly inclusive and has long viewed the AV industry's selectivity as unfair elitism. that inclusivity means that the security industry isn't actually just one homogeneous group. there are many groups, from cryptographers to security operations personnel to vulnerability researchers to penetration testers, etc. each one has it's own distinct mission statement and it's own code of ethics. what do you think you get from a highly inclusive melting pot of security disciplines? well, in order for them to tolerate each other, one necessary outcome is a very relaxed ethical 'soup'. many quarters openly embrace the more offensive security-related disciplines such as malware creation. in order for AV to integrate into this broader security community (and they have been, gradually, over time), AV has to loosen it's own ethical restrictions and be more accepting.
so while the AV industry failed to raise the alarm about hbgary, the broader security industry failed as well. the difference is that ethics in the security industry don't necessarily require raising an alarm over what was going on. hbgary is a respected company in security industry circles and it's founder greg hoglund is a respected researcher whose proclivity for creating malware has been known for a long, long time. as far as the security industry is concerned, hbgary's activities don't necessary qualify as ethical wrong-doing. there will probably be those who think it does, but in general the ethical soup will be permissive enough to allow it, and without being able to call something "wrong-doing" there can be no complicity. this is where AV is going as it continues to integrate into the broader security community. in fact it may be there already. maybe that's the reason they didn't raise the alarm - because they've become ethically compromised, not as a result of a request from some intelligence organization, but as a result of trying to fit in and be something other than what they used to be.
in the final analysis, if you were hoping for a yes or no answer to the question of whether AV is in any way complicit in the spying that the government has been doing (specifically, the spying done using malware), i'm afraid you're going to be disappointed. it depends. based on AV's earlier ethics the answer would probably be yes. based on the security community's ethics the answer may well be no. where is the AV industry now? somewhere between what they were and what the broader security community is. ethical relativity is unfortunately a significant complicating factor. then again, i'm an uncompromising bastard, so i say "yes" (after all, i did grow up with those old-school ethics).