This is the twenty-eighth 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 subsequent blogs described the actions taken by various government agencies to implement the Cyber EO from June 2021 through July 2023.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during August 2023. 

ONCD and Interagency Partners Publish a Request for Information (“RFI”) on Open-Source Software Security

On August 10, 2023, the Office of the National Cyber Director (“ONCD”) published a RFI seeking public comment on the Federal Government’s efforts to promote open-source software security as part of the Open-Source Software Security Initiative (“OS3I”).  The RFI was published in collaboration with interagency OS3I partners, including the Cybersecurity and Infrastructure Security Agency (“CISA”), the National Science Foundation, the Defense Advanced Research Projects Agency, the National Institute of Standards and Technology (“NIST”), the Center for Medicare & Medicaid Services, and Lawrence Livermore National Laboratory.  The RFI specifically seeks input on how the Federal Government “can lead, assist, or encourage other key stakeholders to advance progress” in open-source software security, including:

  • How “the Federal Government [should] contribute to driving down the most important systemic risks in open-source software;”
  • How “the Federal Government [can] help foster the long-term sustainability of open-source software communities;” and
  • How “open-source software security solutions [should] be implemented from a technical and resourcing perspective.”

Comments are being accepted through November 8, 2023 at 5:00 pm ET and may be submitted through Regulations.gov. 

FCC Seeks Input on Internet of Things (“IoT”) Labeling Program

On August 10, 2023, the Federal Communications Commission (“FCC”) published a Notice of Proposed Rulemaking (“NPRM”) regarding the creation of a voluntary cybersecurity labeling program for IoT devices.  The FCC’s NPRM advances the Administration’s efforts – as outlined in the National Cybersecurity Strategy and Implementation Plan – to establish a program for placing a “U.S. Cyber Trust Mark” on qualifying products to “help consumers make informed purchasing decisions, differentiate trustworthy products in the marketplace, and create incentives for manufacturers to meet higher cybersecurity standards.”  The NPRM states that the program would be based on criteria developed by NIST and poses questions for comment, including (among others):

  • The “scope of devices or products for sale in the U.S. that should be eligible for inclusion in the labeling program;”
  • How “to develop the security standards that could apply to different types of devices or products;” and
  • How “to demonstrate compliance with those security standards.”

Public comments on the NPRM were due on or by September 25, 2023. 

ONCD Extends Deadline for Regulatory Harmonization RFI

On August 16, 2023, ONCD extended the deadline for companies and stakeholders to submit feedback on its Request for Information regarding harmonizing cybersecurity regulations.  Comments will now be accepted through October 31, 2023.  ONCD had originally published its RFI on July 19, 2023, seeking public input “to understand existing challenges with regulatory overlap and inconsistency in order to explore a framework for reciprocal recognition by regulators of compliance with common baseline cybersecurity requirements.”  ONCD’s RFI on harmonization advances one of the initiatives outlined by the Administration in its National Cybersecurity Strategy Implementation Plan.

CISA Blog Categorizes Artificial Intelligence (“AI”) as Software that Must Be Secure by Design

In a blog post published on August 18, 2023, CISA explained that AI is simply “a type of software” that, “like any software system, [] must be Secure by Design.”  In other words, CISA explained, “manufacturers of AI systems must consider the security of the customers as a core business requirement, not just a technical feature, and prioritize security throughout the whole lifecycle of the product, from inception of the idea to planning for the system’s end-of-life.”  Similarly, CISA’s blog stated that AI engineers “should apply existing community-expected security practices and policies for broader software design [and] software development[,]” including in regard to “AI software design, AI software development, AI data management, AI software deployment, AI system integration,” and many others.  In particular, CISA claimed that “AI engineering continues to take on too much technical debt where they have avoided applying these practices.”  CISA’s position that AI is software is another step in its promotion of Secure by Design principles following its guidance on Security-by-Design and Security-by-Default principles for technology manufacturers, which was released on April 13, 2023. 

NIST Updates Draft Implementation Guidance for Zero Trust Architecture

On August 22, 2023, NIST’s National Cybersecurity Center of Excellence (“NCCoE”) published a third version of Volume D of its draft guidance on “Implementing a Zero Trust Architecture,” SP 1800-35D.  Specifically, “Volume D provides a functional demonstration plan[,] and the updated version includes demonstration results for ten builds.”  NCCoE is accepting comment on this guidance through October 9, 2023.  And moving forward, NCCoE has stated that it “will continue to update the volumes of NIST SP 1800-35 appropriately as needed as [it] make[s] significant progress on the project.”

NIST Publishes Draft Guidance for Integrating Software Security Concepts into Cloud Operations

On August 30, 2023, NIST released an initial draft of NIST SP 800-204D, “Strategies for the Integration of Software Supply Chain Security in DevSecOps CI/CD Pipeline.”  In accordance with the Cyber EO and NIST’s Secure Software Development Framework, the new guidance addresses “actionable measures to integrate the various building blocks of [software supply chain (“SSC”)] security assurance into [Continuous Integration / Continuous Delivery (“CI/CD”)] pipelines to prepare organizations to address SSC security in the development and deployment of their cloud-native applications.”  In particular, the new guidance:

  • Provides “a series of definitions for modeling and understanding software supply chains and their compromises;”
  • Sets out “a broad understanding of common risk factors and potential mitigation measures with a particular focus on the software developer environment;”
  • Describes “the background for CI/CD pipelines, the broad security goals of the processes involved, and the entities that need to be trusted;”
  • “Outlines strategies for integrating SSC security assurance measures into CI/CD pipelines;” and
  • Maps “the SSC security integration strategies for CI/CD pipelines to the SSDF’s high-level practices.” 

CISA is accepting public comment on its initial draft through October 13, 2023, which can be submitted by email to sp800-204d-comments@nist.gov. 

Tags: Cyber EO, Executive Order 14028
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Photo of Robert Huffman Robert Huffman

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance…

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance, contract claims and disputes, and intellectual property (IP) matters related to U.S. government contracts.

Bob has leading expertise advising companies that are defending against investigations, prosecutions, and civil suits alleging procurement fraud and false claims. He has represented clients in more than a dozen False Claims Act qui tam suits. He also represents clients in connection with parallel criminal proceedings and suspension and debarment.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including cybersecurity, the Buy American Act/Trade Agreements Act (BAA/TAA), and counterfeit parts requirements. He also has extensive experience litigating contract and related issues before the Court of Federal Claims, the Armed Services Board of Contract Appeals, federal district courts, the Federal Circuit, and other federal appellate courts.

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 items and services. He handles IP matters involving government contracts, grants, Cooperative Research and Development Agreements (CRADAs), and Other Transaction Agreements (OTAs).

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Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government…

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government contractors and represents her clients before the Defense Contract Audit Agency (DCAA), Inspectors General (IG), and the Department of Justice with regard to those investigations.  From 2008 to 2012, Ms. Cassidy served as in-house counsel at Northrop Grumman Corporation, one of the world’s largest defense contractors, supporting both defense and intelligence programs. Previously, Ms. Cassidy held an in-house position with Motorola Inc., leading a team of lawyers supporting sales of commercial communications products and services to US government defense and civilian agencies. Prior to going in-house, Ms. Cassidy was a litigation and government contracts partner in an international law firm headquartered in Washington, DC.

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Photo of Ashden Fein Ashden Fein

Ashden Fein advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.

For cybersecurity matters, Mr. Fein counsels clients on preparing for and responding to cyber-based attacks, assessing…

Ashden Fein advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.

For cybersecurity matters, Mr. Fein counsels clients on preparing for and responding to cyber-based attacks, assessing security controls and practices for the protection of data and systems, developing and implementing cybersecurity risk management and governance programs, and complying with federal and state regulatory requirements. Mr. Fein frequently supports clients as the lead investigator and crisis manager for global cyber and data security incidents, including data breaches involving personal data, advanced persistent threats targeting intellectual property across industries, state-sponsored theft of sensitive U.S. government information, and destructive attacks.

Additionally, Mr. Fein assists clients from across industries with leading internal investigations and responding to government inquiries related to the U.S. national security. He also advises aerospace, defense, and intelligence contractors on security compliance under U.S. national security laws and regulations including, among others, the National Industrial Security Program (NISPOM), U.S. government cybersecurity regulations, and requirements related to supply chain security.

Before joining Covington, Mr. Fein served on active duty in the U.S. Army as a Military Intelligence officer and prosecutor specializing in cybercrime and national security investigations and prosecutions — to include serving as the lead trial lawyer in the prosecution of Private Chelsea (Bradley) Manning for the unlawful disclosure of classified information to Wikileaks.

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Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

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Photo of Ryan Burnette Ryan Burnette

Ryan Burnette advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national…

Ryan Burnette advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national security related matters, including those matters that relate to federal cybersecurity and federal supply chain security. Ryan also advises on government cost accounting, FAR and DFARS compliance, public policy matters, and agency disputes. He speaks and writes regularly on government contracts and cybersecurity topics, drawing significantly on his prior experience in government to provide insight on the practical implications of regulations.

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Photo of Matthew Harden Matthew Harden

Matthew Harden is a litigation associate in the firm’s New York office and advises on a broad range of cybersecurity, data privacy, and national security matters, including cybersecurity incident response, cybersecurity and privacy compliance obligations, internal investigations, and regulatory inquiries.

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