The modern commercial systems and software industry in the United States have grown up in a snake-oil salesman's paradise. The largest sector of this industry by far is composed of standard commercial systems that are marketed to provide specified functionality (e.g. Internet web server, firewall, router, etc.) Such products are generally provided with a blanket disclaimer stating that the purchaser must evaluate the suitability of the product for use, and that the user assumes all liability for product behavior. In general, users cannot evaluate and cannot be expected to evaluate the security claims of a product. The ability to analyze security claims is important because a consumer may place unwarranted trust in the security abilities of a web server (or other computer device) to perform its stated purpose, thereby putting his own organization at risk, as well as third parties (consumers, business partners, etc.) All but the largest and most capable organizations lack the resources or expertise to evaluate the security claims of a product. More importantly, no reasonable and knowledgeable person would expect them to be able to do so. The normal legal presumptions of approximate equality of bargaining power and comparable sophistication in evaluating benefits and risks are grievously unjust in the context of software security. In these transactions, it is far wiser to view the general purchaser, even if that purchaser is a sizable corporation, as an ignorant consumer. Hence, often purchasers accept what appear to be either implied merchantability claims of the vendor or claims of salespersons' made outside of the context of a written document. These claims frequently have little, if any, basis in fact. These standard commercial systems form the bulk of the critical infrastructure of existing Internet functionality and e-commerce systems. Often, these systems are not trustworthy, yet the use of these systems by misinformed purchasers created massive vulnerability for both purchasers and third parties (including a substantial fraction of both U.S. and international citizens). The frequent disclosure of individual credit card information from supposedly secure commercial systems illustrates an aspect of this vulnerability and raises serious questions concerning the merchantability of these systems. While it is impossible to avoid all risks, they can be reduced to a very small fraction of their current level. Vendors have willfully taken approaches and used processes that do not allow assurance of appropriate security properties, while simultaneously and recklessly misrepresenting the security properties of their products to their customers.
John R. Michener, Steven D. Mohan, James B. Astrachan & David R. Hale,
Snake-Oil Security Claims the Systematic Misrepresentation of Product Security in the E-Commerce Arena,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol9/iss2/1