What the PATCH Act doesn't do

Proponents of the current Vulnerabilities Equities Process say the proposed PATCH Act will likely improve the process, but it is just one piece of a larger cybersecurity puzzle.

Shutterstock image of a line of faulty code.
 

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."

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.