Zero Progress on Zero Days: How the Last Ten Years Created the Modern Spyware Market

47 Pages Posted: 10 Nov 2023 Last revised: 17 Jun 2024

See all articles by Mailyn Fidler

Mailyn Fidler

University of New Hampshire Franklin Pierce School of Law

Date Written: May 23, 2024

Abstract

Spyware makes surveillance simple. The last ten years have seen a global market emerge for ready-made software that lets governments surveil their citizens and foreign adversaries alike and to do so more easily than when such work required tradecraft. The last ten years have also been marked by stark failures to control spyware and its precursors and components. This Article accounts for and critiques these failures, providing a socio-technical history since 2014, particularly focusing on the conversation about trade in zero-day vulnerabilities and exploits. Second, this Article applies lessons from these failures to guide regulatory efforts going forward. While recognizing that controlling this trade is difficult, I argue countries should focus on building and strengthening multilateral coalitions of the willing, rather than on strong-arming existing multilateral institutions into working on the problem. Individually, countries should focus on export controls and other sanctions that target specific bad actors, rather than focusing on restricting particular technologies. Last, I continue to call for transparency as a key part of oversight of domestic governments' use of spyware and related components.

Keywords: cybersecurity, zero-day vulnerabilities, international law, espionage

Suggested Citation

Fidler, Mailyn, Zero Progress on Zero Days: How the Last Ten Years Created the Modern Spyware Market (May 23, 2024). 102 Neb. L. Rev. 713 (2024), Available at SSRN: https://ssrn.com/abstract=4626426

Mailyn Fidler (Contact Author)

University of New Hampshire Franklin Pierce School of Law ( email )

Two White Street
Concord, NH 03301
United States

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