### §398a. Pilot program for sharing cyber capabilities and related information with foreign operational partners

(a) Authority to Establish Pilot Program to Share Cyber Capabilities.—The Secretary of Defense may, with the concurrence of the Secretary of State, provide cyber capabilities and related information developed or procured by the Department of Defense to foreign countries or organizations described in subsection (b) without compensation, to meet operational imperatives if the Secretary of Defense determines that the provision of such cyber capabilities is in the national security interests of the United States.

(b) List of Foreign Countries.—The Secretary of Defense, with the concurrence of the Secretary of State, shall—

(1) establish—

(A) a list of foreign countries that the Secretary of Defense considers suitable for sharing of cyber capabilities and related information under the authority established under subsection (a); and

(B) criteria for establishing the list under subparagraph (A);

(2) not later than 14 days after establishing the list required by paragraph (1), submit to the appropriate committees of Congress such list; and

(3) notify the appropriate committees of Congress in writing of any changes to the list established under paragraph (1) at least 14 days prior to the adoption of any such changes.

(c) Procedures.—Prior to the first use of the authority provided by subsection (a), the Secretaries of Defense and State shall—

(1) establish and submit to the appropriate committees of Congress procedures for a coordination process for subsection (a) that is consistent with the operational timelines required to support the national security of the United States; and

(2) notify the appropriate committees of Congress in writing of any changes to the procedures established under paragraph (1) at least 14 days prior to the adoption of any such changes.

(d) Notification Required.—(1) The Secretary of Defense and Secretary of State jointly shall promptly submit to the appropriate committees of Congress notice in writing of any use of the authority provided by subsection (a) no later than 48 hours following the use of the authority.

(2) Notification under paragraph (1) shall include a certification that the provision of the cyber capabilities was in the national security interests of the United States.

(3) The notification under paragraph (1) shall include an analysis of whether the transfer and the underlying operational imperative could have been met using another authority.

(e) Termination.—The authority established under subsection (a) shall terminate on the date that is 3 years after the date on which this authority becomes law.

(f) Performance Metrics.—(1) The Secretary of Defense shall maintain performance metrics to track the results of sharing cyber capabilities and related information with foreign operational partners under a pilot program authorized by subsection (a).

(2) The performance metrics under paragraph (1) shall include the following:

(A) Whom the cyber capability was used against.

(B) The effect of the cyber capability, including whether and how the transfer of the cyber capability improved the operational cyber posture of the United States and achieved operational objectives of the United States, or had no effect.

(C) Such other outcome-based or appropriate performance metrics as the Secretary considers appropriate for evaluating the effectiveness of a pilot program carried out under subsection (a).

(g) Definitions.—In this section:

(1) The term "appropriate committees of Congress" means—

(A) the congressional defense committees;

(B) the Committee on Foreign Relations of the Senate; and

(C) Committee on Foreign Affairs of the House of Representatives.

(2) The term "cyber capability" means a device or computer program, including any combination of software, firmware, or hardware, designed to create an effect in or through cyberspace.

(h) Rule of Construction.—Nothing in this section shall be construed as amending, diminishing, or otherwise impacting reporting or other obligations under the War Powers Resolution.

(Added Pub. L. 117–263, div. A, title XV, §1551(a), Dec. 23, 2022, 136 Stat. 2918, §398; renumbered §398a and amended Pub. L. 118–31, div. A, title XV, §1501, title XVIII, §1801(a)(6), (7), Dec. 22, 2023, 137 Stat. 533, 683.)

#### **Editorial Notes**

#### References in Text

The War Powers Resolution, referred to in subsec. (h), is Pub. L. 93–148, Nov. 7, 1973, 87 Stat. 555, which is classified generally to chapter 33 (§1541 et seq.) of Title 50, War and National Defense. For complete classification of this Resolution to the Code, see Short Title note set out under section 1541 of Title 50 and Tables.

#### Amendments

2023—Pub. L. 118–31, §§1501(1), 1801(a)(6), made identical amendments, renumbering section 398 of this title relating to pilot program for sharing cyber capabilities and related information with foreign operational partners as this section.

Subsec. (b)(1)(A). Pub. L. 118–31, §1801(a)(7)(A)(i), substituted "subsection (a)" for "paragraph (a)".

Subsec. (b)(2). Pub. L. 118–31, §1801(a)(7)(A)(ii), substituted "paragraph (1)" for "paragraph (a)".

Subsec. (b)(3). Pub. L. 118–31, §1801(a)(7)(A)(iii), substituted "paragraph (1)" for "clause (1)".

Subsec. (e). Pub. L. 118–31, §1801(a)(7)(B), substituted "subsection (a)" for "paragraph (a)".

Subsecs. (f) to (h). Pub. L. 118–31, §1501(2), added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.