This is the twenty-ninth 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 August 2023.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during September 2023. 

DHS Releases Report on Harmonization of Cyber Incident Reporting

            On September 19, 2023, the U.S. Department of Homeland Security (“DHS”) released a report identifying duplicative federal cybersecurity incident reporting requirements, proposing a model definition for reportable cybersecurity incidents, and recommending how the Federal government should assess how best to streamline cybersecurity incident reports.  In addition, “the report also summarizes actions that the [U.S.] Cybersecurity and Infrastructure Security Agency (“CISA”) will take to facilitate harmonization of cyber incident reporting as it implements the [Cyber Incident Reporting for Critical Infrastructure Act of 2022] as well as proposals that Congress may consider for legislative changes.”  In particular, the report notes that CISA “will continue to engage in three lines of efforts to facilitate harmonization of duplicative reporting requirements[,] including: 

  1. Participating in the Cyber Incident Reporting Council (“CIRC”) which is “to coordinate, deconflict, and harmonize Federal incident reporting requirements, including those issued through regulation[;]”
  • Performing “extensive outreach with Federal and non-Federal entities to inform the forthcoming CIRCIA” Notice of Proposed Rulemaking; and
  • Exploring “opportunities with Federal entities to minimize the burden on entities who report substantially similar information as part of an existing requirement, where feasible.” 

Some of the report’s recommendations to streamline and harmonize cybersecurity incident reporting include:

  • Adopting a model definition of a reportable cyber incident;
  • Adopting model cyber incident reporting timelines and triggers;
  • Instructing agencies to “consider whether a delay is warranted [in notification] when such notifications pose[] a significant risk to critical infrastructure, national security, public safety, or an ongoing law enforcement investigation;” 
  • Adopting a model reporting form;
  • Assessing how best to streamline the receipt and sharing of reports and incident information;
  • Providing for updates and supplemental reports in incident reporting requirements;
  • Adopting common terminology; and
  • Improving processes for engaging with reporting entities following cyber incident reports.

CISA Announces Open Source Software Security Roadmap

            On September 12, 2023, CISA published the Open Source Software Security Roadmap that “articulates how the agency will enable the secure usage of open source software within the federal government and support a healthy, secure, and sustainable global open source software ecosystem.”  In particular, the Roadmap centers on four primary goals:

  1. Establishing “CISA’s role in supporting the security of” Open Source Software (“OSS”);
  • Understanding “the prevalence of key open source dependencies;”
  • Reducing “risks to the federal government;” and
  • Hardening “the broader OSS ecosystem.” 

Within each of these goals, the Roadmap identifies specific objectives for CISA to achieve.  For example, the Roadmap notes that CISA will aim to “develop open source program office guidance for federal agencies” and to continue to advance software bills of material (“SBOMs”) within OSS supply chains. 

CISA Releases Hardware Bill of Materials Framework (“HBOM”) for Supply Chain Risk Management

            On September 25, 2023, CISA released its HBOM Framework for Supply Chain Risk Management, which offers “a consistent and repeatable way for vendors and purchasers to communicate about hardware components, enabling effective risk assessment and mitigation in the supply chain.”  Specifically, CISA notes that “[t]he HBOM product provides a framework that includes a consistent naming methodology for attributes of components, a format for identifying and providing information about the different types of components, and guidance of what HBOM information is appropriate depending on the purpose for which the HBOM will be used.”  The Framework is divided into three main components, which are listed as appendices: 

  1. HBOM Use Cases – “[p]rovides a range of potential use cases that purchasers may have for HBOMs, based on the nature of the risk the purchaser seeks to evaluate[;]”
  • Format of HBOMs – “sets forth a format that can be used to ensure consistency across HBOMs and to increase the ease with which HBOMs can be produced and used[;]”
  • HBOM Taxonomy – “[p]rovides a taxonomy of component/input attributes that, depending on the use for which the purchaser intends to use an HBOM, may be appropriate to include in an HBOM.” 

CISA’s HBOM Framework exists alongside its efforts to promote bills of materials (“BOMs”) in other areas, particularly SBOMs.  As noted in the National Cybersecurity Strategy Implementation Plan, CISA will work with key stakeholders to identify and reduce gaps in SBOMs. 

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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).

Photo of Susan B. Cassidy Susan B. Cassidy

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.

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.

Mr. Fein currently serves as a Judge Advocate in the U.S. Army Reserve.

Photo of Michael Wagner Michael Wagner

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.

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.

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.