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.”