The White House released on November 15, 2017 the Vulnerabilities Equities Policy and Process for the United States Government (“VEP”) — the process by which the Government determines whether to disseminate or restrict information about new, nonpublic vulnerabilities that it discovers.  This release was motivated by criticism following the allegations that significant cyber-attacks have exploited vulnerabilities withheld by the Government, concerns that the Government is exploiting vulnerabilities instead of alerting vendors to fix them, and general calls for transparency in the process.

According to the newly-released documents, the VEP is overseen by an Executive Secretariat (a role filled by the National Security Agency) and the final decision about whether to disseminate or restrict vulnerability information is made by an interagency Equities Review Board (“ERB”).  The VEP is initiated when an agency submits a newly discovered and not publicly known vulnerability and provides its recommendation on whether to disseminate or restrict the information.  Any other agencies claiming an equity in the vulnerability must concur or disagree with the recommendation.  The ERB considers the opinions, renders a final decision, and the vulnerability is either disseminated or restricted.

The ERB’s determinations are based on the balancing of four groups of equities: (1) defensive; (2) intelligence, law enforcement, and operational; (3) commercial; and (4) international partnership.  Specific considerations include: whether and how threat actors will exploit the vulnerability, the potential harm caused by exploitation, the likelihood of effective mitigation, whether the vulnerability can be exploited to serve an intelligence or law enforcement purpose, and risks to the Government’s relationship with industry and international relations.