This is the twelfth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and the second through eleventh blogs describe the actions taken by various Government agencies to implement the Cyber EO from June 2021 through March 2022, respectively.  This blog summarizes key actions taken to implement the Cyber EO during April 2022.  As with the steps taken during prior months, the actions described below reflect the implementation of the EO within the Government. However, these activities portend further actions, potentially in or before June 2022, that are likely to impact government contractors, particularly those who provide software products or services to the Government.

The Government Moves Forward Towards Proposing Federal Acquisition Regulation Updates

Sections 2(b)-(c) of the Cyber EO require the Department of Homeland Security (DHS) to recommend to the FAR Council contract language and requirements for IT and OT service providers regarding reporting of cyber incidents and related information preservation requirements.  Section 2(g)(i) of the Cyber EO requires DHS to recommend to the FAR Council contract language that identifies the nature of cyber incidents that require reporting by federal contractors.  The FAR Council opened Federal Acquisition Regulation (FAR) Case No. 2021-017 to consider the recommended contract language and requirements and to develop proposed FAR amendments based thereon.  On April 27, 2022, the Defense Acquisition Regulations Council (DARC), a subdivision of the FAR Council, met to discuss a draft proposed FAR rule implementing sections 2(b)-(c) and 2(g)(i) of the Cyber EO.  According to the report on open FAR cases dated May 6, 2022, the DARC agreed to the draft proposed FAR rule , and the DAR staff is currently processing the draft rule for proposal.  The draft proposed rule now goes to the Civilian Agency Acquisition Council (CAAC) for review, following which it would be submitted to the Office of Information and Regulatory Affairs (OIRA) for review and approval.  If approved, the rule could be expected to be proposed in late Summer 2022, although publication could occur earlier or later than that time.

Sections 2(i) and 8(b) of the Cyber EO require DHS to recommend to the FAR Council standardized contractual language regarding “appropriate cybersecurity requirements” for federal government contractors with controlled unclassified information (CUI) on their information systems.  According to the May 6, 2022, open FAR cases report, the FAR Council opened FAR Case No. 2021-019 and on April 13, 2022, the DARC received a draft proposed FAR rule regarding such standardized contract language and requirements from the DAR staff and on May 4, 2022, the DARC agreed to this draft proposed rule.  The proposed FAR “standardized” cybersecurity requirements rule will follow the same CAAC and OIRA review process described above and will likely be proposed in late Summer 2022, although it is unclear whether it will be proposed at the same time as the rule regarding cyber incident reporting requirements discussed above.

NIST Guidance on Cloud Security

In April 2022, NIST released three practice guide publications addressing trusted cloud and hardware-enabled security.

First, NIST released the final version of NIST SP 1800-19, titled “Trusted Cloud: Security Practice Guide for VMware Hybrid Cloud Infrastructure as a Service (IaaS) Environments.”  The Practice Guide addresses the challenges of enforcing security and privacy policies on cloud workloads in a consistent, repeatable, and automated way.  The substance of the Practice Guide demonstrates how organizations can implement trusted compute pools to safeguard the security and privacy of their applications and data being run within a cloud or being transferred between a private cloud and a hybrid or public cloud.

Second, NIST published the final version of NISTIR 8320B, titled “Hardware-Enabled Security: Policy-Based Governance in Trusted Container Platforms.”  Building on NISTIR 8320A, the report explains an approach based on hardware-enabled security techniques and technologies for safeguarding container deployments in multi-tenant cloud environments and describes a prototype implementation of the approach intended to be a template for the general security community.  Report 8320B uses the three stages of deployment described in Sections 3, 4, and 5 of NISTIR 8320A, and describes two additional stages for encrypting container images and creating data access policies for containers.

Finally, NIST issued a draft of NISTIR 8320C, titled “Hardware-Enabled Security: Machine Identity Management and Protection.”  The report provides a proposed approach for overcoming security challenges associated with creating, managing, and protecting machine identities throughout their lifecycle.  Similar to NISTIR 8320B, the report is intended to be a  template that the general security community can use to validate and implement the described implementation.  Comments are due on the draft by June 6, 2022.

CISA Releases Secure Cloud Business Applications Reference Documents

As a part of the Secure Cloud Business Applications project, the Cybersecurity and Infrastructure Security Agency (CISA) released two publications in April 2022: Secure Cloud Business Applications (SCuBA) Technical Reference Architecture (TRA) and Extensible Visibility Reference Framework (eVRF) Program Guidebook.  Pursuant to Cyber EO Section 3(c), CISA is responsible for developing security principles governing Cloud Service Providers (CSPs) for incorporation into agency modernization efforts.  The SCuBA was established to develop effective, modern, and manageable security configurations to help secure agency information assets stored within cloud environments.  To implement the program, CISA released the SCuBA TRA, which is a security guide for agencies to use to adopt technology for cloud deployment, adaptable solutions, secure architecture, and zero trust frameworks.  Additionally, CISA released the eVRF Guidebook which provides an overview of the eVRF framework.  CISA is requesting comments on these reference documents by May 19, 2022.

NIST Updates Guidance for Securing Operational Technology

On April 26, 2022, NIST released Special Publication 800-82 Revision 3, “Guide to Operational Technology (OT) Security,” the third iteration of NIST’s guidance on securing OT.   The publication supplies guidance for how to implement secure OT while simultaneously “addressing OT’s unique performance, reliability, and safety requirements.”  OT refers to a wide spectrum of programmable systems and devices that interact with the physical environment, such as industrial control systems, physical environment measuring systems, and physical environment monitoring systems.

The third revision surveys “methods and techniques” for protecting OT systems.  Specifically, the publication analyzes typical threats and vulnerabilities associated with OT systems and advocates for certain “security countermeasures” to combat the relevant OT risks.  Additionally, the publication explains how to apply the Cybersecurity Framework (CSF) to OT systems and supplies OT-specific guidance for NIST Special Publication 800-53 Revision 5, Security and Privacy Controls for Information Systems and Organizations.  The publication remains open for public comment until July 1, 2022.

NIST Seeks Public Comment on Draft Publication on Safeguarding 5G Cybersecurity

NIST’s National Cybersecurity Center of Excellence is soliciting public comments on NIST’s second publication in its three volume series on 5G Cybersecurity.  Special Publication 1800-33B is meant to assist organizations with the challenge of securing technologies that use 5G while the development and usage of these technologies remains ongoing.  The draft publication provides a sample solution for addressing challenges unique to 5G cybersecurity, which incorporates a “risk analysis.”  The solution will provide “actionable and prescriptive guidance” for how to use “standards and recommended practices” to safeguard 5G technologies under various scenarios.  NIST expects to release at least one updated draft for public comment.  The comment period lasts until June 27, 2022.

 

 

 

 

 

 

Tags: Cyber EO, Cybersecurity, Executive Order, Executive Order 14028, NIST
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Robert Huffman Robert Huffman

Bob Huffman counsels government contractors on emerging technology issues, including artificial intelligence (AI), cybersecurity, and software supply chain security, that are currently affecting federal and state procurement. His areas of expertise include the Department of Defense (DOD) and other agency acquisition regulations governing…

Bob Huffman counsels government contractors on emerging technology issues, including artificial intelligence (AI), cybersecurity, and software supply chain security, that are currently affecting federal and state procurement. His areas of expertise include the Department of Defense (DOD) and other agency acquisition regulations governing information security and the reporting of cyber incidents, the proposed Cybersecurity Maturity Model Certification (CMMC) program, the requirements for secure software development self-attestations and bills of materials (SBOMs) emanating from the May 2021 Executive Order on Cybersecurity, and the various requirements for responsible AI procurement, safety, and testing currently being implemented under the October 2023 AI Executive Order. 

Bob also represents contractors in False Claims Act (FCA) litigation and investigations involving cybersecurity and other technology compliance issues, as well more traditional government contracting costs, quality, and regulatory compliance issues. These investigations include significant parallel civil/criminal proceedings growing out of the Department of Justice’s Cyber Fraud Initiative. They also include investigations resulting from False Claims Act qui tam lawsuits and other enforcement proceedings. Bob has represented clients in over a dozen FCA qui tam suits.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including those arising under the Buy American Act/Trade Agreements Act and Section 889 of the FY2019 National Defense Authorization Act. In addition, Bob advises government contractors on rules relating to IP, including government patent rights, technical data rights, rights in computer software, and the rules applicable to IP in the acquisition of commercial products, services, and software. He focuses this aspect of his practice on the overlap of these traditional government contracts IP rules with the IP issues associated with the acquisition of AI services and the data needed to train the large learning models on which those services are based. 

Bob writes extensively in the areas of procurement-related AI, cybersecurity, software security, and supply chain regulation. He also teaches a course at Georgetown Law School that focuses on the technology, supply chain, and national security issues associated with energy and climate change.

Read more about Robert HuffmanEmail
Show more Show less
Photo of Susan B. Cassidy Susan B. Cassidy

Susan is co-chair of the firm’s Aerospace and Defense Industry Group and is a partner in the firm’s Government Contracts and Cybersecurity Practice Groups. She previously served as in-house counsel for two major defense contractors and advises a broad range of government contractors…

Susan is co-chair of the firm’s Aerospace and Defense Industry Group and is a partner in the firm’s Government Contracts and Cybersecurity Practice Groups. She previously served as in-house counsel for two major defense contractors and advises a broad range of government contractors on compliance with FAR and DFARS requirements, with a special expertise in supply chain, cybersecurity and FedRAMP requirements. She has an active investigations practice and advises contractors when faced with cyber incidents involving government information. Susan relies on her expertise and experience with the Defense Department and the Intelligence Community to help her clients navigate the complex regulatory intersection of cybersecurity, national security, and government contracts. She is Chambers rated in both Government Contracts and Government Contracts Cybersecurity. In 2023, Chambers USA quoted sources stating that “Susan’s in-house experience coupled with her deep understanding of the regulatory requirements is the perfect balance to navigate legal and commercial matters.”

Her clients range from new entrants into the federal procurement market to well established defense contractors and she provides compliance advices across a broad spectrum of procurement issues. Susan consistently remains at the forefront of legislative and regulatory changes in the procurement area, and in 2018, the National Law Review selected her as a “Go-to Thought Leader” on the topic of Cybersecurity for Government Contractors.

In her work with global, national, and start-up contractors, Susan advises companies on all aspects of government supply chain issues including:

  • Government cybersecurity requirements, including the Cybersecurity Maturity Model Certification (CMMC), DFARS 7012, and NIST SP 800-171 requirements,
  • Evolving sourcing issues such as Section 889, counterfeit part requirements, Section 5949 and limitations on sourcing from China
  • Federal Acquisition Security Council (FASC) regulations and product exclusions,
  • Controlled unclassified information (CUI) obligations, and
  • M&A government cybersecurity due diligence.

Susan has an active internal investigations practice that assists clients when allegations of non-compliance arise with procurement requirements, such as in the following areas:

  • Procurement fraud and FAR mandatory disclosure requirements,
  • Cyber incidents and data spills involving sensitive government information,
  • Allegations of violations of national security requirements, and
  • Compliance with MIL-SPEC requirements, the Qualified Products List, and other sourcing obligations.

In addition to her counseling and investigatory practice, Susan has considerable litigation experience and has represented clients in bid protests, prime-subcontractor disputes, Administrative Procedure Act cases, and product liability litigation before federal courts, state courts, and administrative agencies.

Susan is a former Public Contract Law Procurement Division Co-Chair, former Co-Chair and current Vice-Chair of the ABA PCL Cybersecurity, Privacy and Emerging Technology Committee.

Prior to joining Covington, Susan served as in-house senior counsel at Northrop Grumman Corporation and Motorola Incorporated.

Read more about Susan B. CassidyEmail
Show more Show less
Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

Read more about Michael WagnerEmail
Show more Show less
Photo of Emma Merrill-Grubb Emma Merrill-Grubb

Emma Merrill-Grubb is an associate in the firm’s Washington, DC office and member of the Government Contracts practice group. Emma advises clients on a broad range of issues related to government contracting, including regulatory advising, bid protests, transactional matters. She maintains an active…

Emma Merrill-Grubb is an associate in the firm’s Washington, DC office and member of the Government Contracts practice group. Emma advises clients on a broad range of issues related to government contracting, including regulatory advising, bid protests, transactional matters. She maintains an active pro bono practice.

Read more about Emma Merrill-GrubbEmail
Show more Show less