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Researchers have recently criticized the Certificate Authority Trust Model — which involves the issuance and use of digital certificates to authenticate the identity of websites to end-users — because of an array of technical and institutional problems. The criticism is significant not only because of the systemic nature of the noted problems, but also because the Model is universally relied upon by websites offering secure connections (SSL and TLS) to end-users. The Model comes into play in virtually every commercial and business transaction occurring over the Internet, as well as in a wide variety of other confidential and private on-line communications. What has not been addressed to date, however, is the nature of the legal relationships between the parties involved with, or impacted by, the Model.

Steve Schultze and I tackle this topic in our recent article “The Certificate Authority Trust Model for SSL: A Defective Foundation for Encrypted Web Traffic and a Legal Quagmire.” We looked at the standard legal documents issued by the certificate authorities or “CAs,” including exemplar Subscriber Agreements (agreements between CAs and website operators); “Certification Practice Statements” (statements by CAs outlining their business practices); and Relying Party Agreements (purported agreements between CAs and “relying parties,” such as end-users). What we found was surprising:

“Relying Party Agreements” purport to bind end-users to their terms despite the apparent absence of any mechanism to either affirmatively alert the end-user as to the existence of the supposed Agreements or afford the end-user an opportunity to register his or her acceptance or rejection of the Agreements’ terms

Certification Practice Statements that suffer from the same problem (i.e. no affirmative notice to the end-user and no meaningful opportunity for acceptance or rejection of terms)

There were other issues as well. For example, the Relying Party Agreements and Certification Practice Statements set forth various obligations on the part of end-users (i.e. “relying parties”) such as: the requirement that end-users make an independent determination of whether it is reasonable to trust a website offering a secure connection (isn’t that the whole point of having a CA, so that the end-user doesn’t have to do that?); the requirement that the end-user be familiar with the crypto software and processes used to carry out the authentication process; and the end-user’s duty to indemnify and hold harmless the CA in the event of legal claims by third parties.

Given the absence of notice to the end-user and assent by the end-user, it would appear that many CAs would have a difficult time holding an end-user to the terms of the relying party agreements or certification practice statements. To date, the CA Trust Model’s legal architecture has apparently not been the subject of any published court decision and remains untested.

The bottom line is that the CA Trust Model’s legal architecture inures to the benefit of no one. Neither website operators, certificate authorities, nor end-users can be sure of their rights or exposure. The Model’s legal structure may therefore be just as troubling as its security vulnerabilities.

You can read the full article in PDF form.

[Editor: Steve Roosa gave a followup luncheon talk at CITP entitled The Devil is in the Indemnity Agreements: A Critique of the Certificate Authority Trust Model’s Putative Legal Foundation. Slides and audio are now posted.]