This is the thirty first 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 actions taken by various government agencies to implement the Cyber EO from June 2021 through October 2023.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during November 2023.  It also describes key actions taken during November 2023 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, secure software, and federal government contractors.

CISA Issues Revised Draft Self-Attestation Common Form

On November 16, 2023, the Cybersecurity and Infrastructure Security Agency (CISA) of the Department of Homeland Security (DHS) published a notice and request for comments on a draft Common Secure Software Development Self-Attestation common form (“Common Form”).  This draft is a revision of the draft Common Form that CISA published in April 2023 pursuant to Section 4 of the Cyber EO and OMB Memorandum M-22-18.  We discussed the prior draft common form and the OMB Memorandum in earlier blogs [links].

CISA’s notice states that it received 110 comments on the prior draft, and that the revised draft reflects several changes that are responsive to those comments.  For example, the revised draft adds “freely obtained and publicly available” software to the categories of software that are exempt from the self-attestation requirement.  The revised draft also removes the term “Product Line” from the Common Form. 

However, not all of the changes made by the revised draft are favorable to industry.  For example, unlike the prior draft, which allowed the attestation to be signed by the Chief Executive Officer of the software producer “or their designee,” the revised draft Common Form does not include a provision for delegation of attestation.  While the revised draft allows the CEO or COO to attest “to the best of my knowledge,” the requirement that the attestation be signed by the CEO or COO could, if adopted in the final Common Form, impose significant burdens on many contractors and subcontractors particular since senior-most executives within an organization may not have existing visibility into the nature of specific security requirements that are in place.[BR1] 

The revised draft, like the prior drafts maintains that “software producers may be asked by agencies to provide additional attestation artifacts or documentation, such as a Software Bill of Materials (SBOMs).”  The revised draft specifies that the documentation in addition to SBOMs should be from “a certified FedRAMP third party assessor organization (3PAO) or other 3PAO approved in writing by an appropriate agency official.”

The period for comments on the revised draft Common Form closed on December 16, 2023.  This relatively short comment period suggests that CISA may intend to issue the final Common Form in the early part of 2024.  Under OMB Memorandum M-22-18, as revised by OMB Memorandum M-23-16, the issuance of the final Common Form will trigger a requirement for agencies to collect the Common Form from covered “critical software” providers within 90 days, and from covered non-critical software providers within 180 days.

CISA, NSA, and Industry Partners Release Best Practices Guide For SBOM Consumption

On November 9, 2023, CISA, the National Security Agency (NSA), and their industry partners in the “Enduring Security Framework” (ESF) published a cybersecurity technical report entitled “Securing The Software Supply Chain:  Recommended Practices for Software Bill of Materials Consumption.”  This report builds upon the three volumes of recommended practices for software supply chain developers, suppliers, and customers issued by the ESF in 2022.  It also builds upon and supports OMB Memorandum M-22-18.  The report contains recommendations to SBOM consumers regarding how to operationalize and scale their use of an SBOM.  It also includes information for “turning SBOM[s] into Risk Information” by using the SBOM to create a “risk score” based on certain factors and defined processes.  The report specifically cites Vulnerabilities, License, Community, and Dependencies as factors that are “a good starting point” for developing risk scores and provides guidance on how the factors could be considered.

FAR Council Allows More Time to Comment on Two Proposed FAR Cyber Regulations

On October 3, 2023, the FAR Council proposed two new FAR cybersecurity rules pursuant to the Cyber EO:  (1) The “Cyber Threat and Incident Reporting and Information Sharing” Rule, which would add new requirements to the cybersecurity incident reporting requirements of federal contractors, and (2) the “Standardizing Cybersecurity Requirements for Unclassified Information Systems” Rule, which would impose additional cybersecurity requirements on contractors providing or maintaining unclassified federal information systems.  (We described the proposed Cyber Threat and Incident Reporting and Information Sharing

Rule in blog posted on November 6, 2023).  We wrote about the incident reporting rule previously, and will have a forthcoming post on the standardizing cybersecurity requirements rule.  The original 60-day comment period on these proposed rules was scheduled to end on December 4, 2023.  On November 1, 2023, the FAR Council extended the comment period on the two proposed rules for an additional 60 days (until February 4, 2024) in response to industry complaints that the original 60 day comment period was insufficient given the Rules’ potential impact.

OMB Releases Draft Guidance To Agencies for

Implementing AI EO

On November 1, 2023, OMB released draft guidance on Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence.  The draft guidance would implement many of the provisions of the AI EO.  For example, the draft guidance would direct federal agencies to:

  • “Designate Chief AI Officers, who would have the responsibility to advise agency leadership on AI[;]”
  • “Remove unnecessary barriers to the responsible use of AI, including those related to insufficient information technology infrastructure[;]” and
  • “Provide recommendations for managing risk in federal procurement of AI[,]” among other actions.

Among other things, the memorandum directs agencies to ensure that appropriate IT infrastructure is in place for AI projects, including that AI and other critical emerging technologies are prioritized in agency authorities to operate, that agency cybersecurity processes address the needs of AI applications, and that appropriate IT infrastructure is in place, including monitoring capabilities.

The comment period on the OMB draft guidance closed on December 5, 2023.

CISA Issues AI Roadmap

On November 14, 2023, CISA published a “roadmap” for its efforts to implement the AI EO.  The roadmap outlines five strategic efforts for CISA:  (1) Responsibly using AI to support CISA’s mission, including cyber defense; (2) developing best practices and guidance for secure and resilient AI software development and attestation; (3) Protecting critical infrastructure against malicious use of AI; (4) Collaborating and communicate on key AI efforts with other federal agencies, international partners, and the public; and (5) Expanding AI expertise in the workforce, including by recruiting new employees with AI expertise, educating CISA’s workforce on AI, and training them on the legal, ethical, and policy aspects of implementing AI.  Regarding the “secure and resilient AI software” effort, CISA’s roadmap states that CISA will incorporate AI systems into its ongoing Secure By Design Initiative for software generally and will also evaluate SBOM toolchains, including SBOM format standards and automated SBOM collection and translation software, “to confirm coverage of AI software.”

 

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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.

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.