What the PATCH Act doesn't do

The Shadow Brokers and WikiLeaks have shined a bright light on the fact that the U.S. government seeks out cyber vulnerabilities to exploit for intelligence and law enforcement purposes. At the same time, agencies also search for vulnerabilities so they can be disclosed and patched in the interests of national security.

Congress now wants to revise and legislate the process by which the government decides whether to keep a vulnerability secret or disclose it.

As it stands now, the Vulnerabilities Equities Process is an Obama administration National Security Council policy that directs intelligence agencies and the NSC to evaluate whether the intelligence value of newly discovered vulnerabilities outweighs the security risk to the government and public of leaving them unpatched. The process has a built-in bias toward disclosure, according to former officials who were involved in the VEP.

The "Protecting Our Ability to Counter Hacking Act of 2017," or PATCH Act, would revise the VEP and turn it into law. The proposed legislation creates a Vulnerabilities Equities Review Board led by the Department of Homeland Security. Other members include the heads of the CIA, National Security Agency, FBI, Office of the Director of National Intelligence and Commerce Department.

The bill also increases oversight and reporting by the board, DHS inspector general and the Privacy and Civil Liberties Oversight Board.

The PATCH Act spells out criteria for deciding "whether, when, how, to whom, and to what degree the Federal Government shares or releases information to a non-Federal entity about a vulnerability that is not publicly known." These include risks to U.S. users and companies, and the risk that the vulnerability will be discovered by potential adversaries.

Ari Schwartz, former senior director for cybersecurity at the NSC and now with Venable LLP, has long advocated some of the changes proposed in the PATCH Act -- though he has argued for the VEP to be formalized as an executive order rather than through legislation.

"Each president should be able to shape it as they see fit, and [legislating it] makes it less flexible," he said.

Though, he said he supports the oversight mechanisms outlined in the act and the change to put DHS in the lead.

"The key here is having some transparency, and DHS can provide that in ways that the NSA cannot," he said.

Schwartz and former White House Cybersecurity Coordinator Michael Daniel said, however, that some of the agencies involved might object to putting DHS in the lead and that the current NSC lead is seen as more neutral. Also, exclusively requiring DHS to issue disclosures could be too limiting.

"In some cases, you want the discovering agency to make the disclosure," Daniel said.

In addition, he cautioned that the proposed process does not have as clear a mechanism for resolving disagreements among the board members. "The current policy provides a clear connection to the NSC policy process in order to resolve those differences. Under this legislation, the board would have to establish its own processes and procedures for resolving disagreements," Daniel said.

Another concern is that the legislation does not provide for a staff or a secretariat for the board, and there is a large workload to manage. "I think the bill could be strengthened by specifically authorizing a secretariat," said Daniel.

Still, response to the PATCH Act has been generally positive, especially from privacy and transparency advocates.

"[The PATCH Act] would codify what the White House claims it has had all along: a rigorous process, with all the key government stakeholders involved, that carefully considers the pros and cons of withholding the information and is strongly weighted in favor of disclosing it," said Kevin Bankston, the director of the New America Foundation's Open Technology Institute, in statement.

But, experts and former officials caution that the bill is far from a cybersecurity silver bullet or game changer. The proposed bill would not have prevented the WannaCry ransomware attack, and it won't be able to prevent many future attacks.

Under any disclosure program, the government is still going to keep some vulnerabilities secret for intelligence gathering purposes, and the immediate concern is that the NSA and CIA have not been able to prevent their hacking tools from being stolen and leaked.

Plus, in the case of WannaCry, Microsoft issued a patch for the stolen exploit two months before the attack. 

"Even if vulnerabilities are disclosed, vendors still have to issue the patch, and users still have to implement the patch," Daniel said. "And that doesn't happen 100 percent consistently, so the PATCH Act won't solve the problem."