This is part of an ongoing 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 March 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during April 2024.  It also describes key actions taken during April 2024 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, national security, and secure software.

NIST Publishes Initial Draft Handbook on Secure IOT Development

On April 3, NIST released an initial public draft of a cybersecurity handbook that outlines considerations for developing and deploying internet of things products across sectors.  In sum, the handbook is intended to help outline and mitigate the risks that may be associated with these products.  Among other things, the handbook outlines approaches to cybersecurity in IoT products, including with respect to architecture and deployment of the products.  Among other topics and consistent with the government’s focus on supply chain security, this handbook also addresses cybersecurity considerations relating to the hardware and software components of IoT.  The handbook also provides examples of implementation of these practices, including with respect to deployment. 

New FAR Part 40 Established

On April 10, the FAR Council released a Request for Information (RFI) relating to the  final FAR rule to establish FAR Part 40, which contains information and supply chain security requirements.  That final rule was published in the Federal Register on April 1.  The RFI is proposing a two-part test to determine whether a requirement should appear in the new Part 40.  If the scope of a security requirement applies beyond information and communications technology (ICT), it should be placed in the new FAR Part 40.  If the scope of the security requirement is limited to ICT, it would be located in current FAR Part 39 (“Acquisition of Information Technology”).  The FAR Council is seeking comments on the contents of this FAR section through June 10, 2024. 

NSA Issues Guidance on Safe Deployment of AI

On April 15, the National Security Agency’s Artificial Intelligence Security Center released guidance on strengthening AI system security.  The guidance is heavily focused on ensuring that known cybersecurity vulnerabilities in AI systems are appropriately mitigated, providing methodologies and controls to protect, detect, and respond to malicious activity against AI systems and related data and services, and improving the confidentiality, integrity, and availability of AI systems.  The document is intended to be used by organizations that are deploying and operating externally developed AI systems on premises or in private cloud environments, especially those in high-threat, high-value environments.

DHS Collaborates with Open Source Foundation to Release New Tool for Creating and Translating SBOMs

On April 16, the Open Source Foundation collaborated with the Department of Homeland Security Science and Technology Directorate and the Cybersecurity and Infrastructure Security Agency (CISA) collaborated to develop a new tool that allows organizations, including government organizations, to read and generate Software Bills of Materials (SBOMs).  The tool is open source and therefore can be further developed as needs evolve.  The tool, known as “protobom,” can be accessed and downloaded here.  It is unclear how this tool, and/or others, may be relied on by agencies as they implement the secure software development framework that we have written about previously.

GAO Requests CISA to Produce List of Critical Software Identified By Federal Agencies Pursuant to Cyber EO

On April 18, the Government Accountability Office (GAO) issued a report which surveyed the states of implementation of the Cybersecurity Executive Order.  In the report, GAO found that agencies had implemented 16 of the 17 requirements in Section 4 of the EO, which addresses enhanced mechanisms to ensure the integrity of the software used by federal supply chain partners.  The report found that agencies had implemented 16 of the 17 requirements in Section 4, but highlighted action needed in one area. The report recommended, among other things, that CISA should issue its list of software and software product categories that are considered to be critical software, that CISA should direct Cyber Safety Review Board to document steps taken or planned to implement the recommendations provided to the President for improving the board’s operations, and that OMB should demonstrate that it has conducted cost analyses for the implementation of recommendations related to the sharing of threat information and resourcing needs for the implementation of an endpoint detection and response capability.

DOD Initiates Vulnerability Disclosure Program for Defense Contractors

On April 19, the Department of Defense (“DoD”) Cyber Crime Center (“DC3”) and Defense Counterintelligence and Security Agency (“DCSA”) announced a new Defense Industrial Base Vulnerability Disclosure Program (“DIB-VDP”).  The program stems from a pilot that DoD conducted for one year, and will allow program participants to be onboarded and integrated to allow for vulnerability threat assessment on those participants’ voluntarily identified assets and platforms.

CISA Issues Guidelines for Critical Infrastructure to Assess AI Risk

On April 29, the Cybersecurity Infrastructure Security Agency (“CISA”) released guidelines relating to security and safety for use by critical infrastructure owners and operators.  The guidelines outline the findings of CISA’s cross-sector analysis of AI risks, including cross-sector AI use cases and patterns in adoption.  The analysis focuses on three risk types – attacks using AI, attacks that target AI systems, and failures in AI design and implementation.  The guidelines that arose from this analysis are intended to mitigate the identified cross-sector AI risks to critical infrastructure. 

NIST Issues Four AI Guidance Documents

On April 30, 2024, the National Institute of Standards and Technology (“NIST”) issued four significant guidance documents pursuant to the AI EO.  These documents are:  (1) a draft generative AI companion guide for NIST’s Secure Software Development Framework (SSDF) (2) a draft generative AI profile for NIST’s AI Risk Management Framework; a draft plan for global engagement on AI safety standards; and (4) draft guidance on “reducing risks posed by synthetic content.”  Comments on each of these documents are due by June 2, 2024.

The draft generative AI companion guide for SSDF may prove to be the most impactful of these documents for government contractors.  Federal agencies are currently required by OMB Memoranda M-22-18 and M-23-16 to obtain “self-attestation forms” from producers of certain “software” used by the agency that the software was developed in compliance with certain principles in the SSDF.  Such self-attestations are required for “critical software” by June 8, 2024, and for non-critical software by September 8, 2024.  The term “software” is broadly defined to include almost all types of software, including products that contain software.  Thus, contractors may already be required to provide SSDF attestations regarding AI products or services to the extent incorporated in or associated with “software” subject to the attestation requirements to the extent the NIST AI generative companion guide results in additional or different SSDF requirements for generative AI, such requirements may be incorporated into the SSDF attestation forms required from software producers.

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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 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 is ranked by Chambers USA for his work in government contracts and he 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.

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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, as well as representing contractors facing allegations of cyber fraud under the False Claims Act. 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.

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Photo of Ashden Fein Ashden Fein

Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He 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, Ashden counsels clients…

Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He 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, Ashden 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. Ashden 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, extortion and ransomware, and destructive attacks.

Additionally, Ashden assists clients from across industries with leading internal investigations and responding to government inquiries related to the U.S. national security and insider risks. 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, FedRAMP, and requirements related to supply chain security.

Before joining Covington, Ashden 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.

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

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Photo of Ryan Burnette Ryan Burnette

Ryan Burnette is a government contracts and technology-focused lawyer that advises on federal contracting compliance requirements and on government and internal investigations that stem from these obligations. Ryan has particular experience with defense and intelligence contracting, as well as with cybersecurity, supply chain…

Ryan Burnette is a government contracts and technology-focused lawyer that advises on federal contracting compliance requirements and on government and internal investigations that stem from these obligations. Ryan has particular experience with defense and intelligence contracting, as well as with cybersecurity, supply chain, artificial intelligence, and software development requirements.

Ryan also advises on Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) compliance, public policy matters, agency disputes, and government cost accounting, drawing on his prior experience in providing overall direction for the federal contracting system to offer insight on the practical implications of regulations. He has assisted industry clients with the resolution of complex civil and criminal investigations by the Department of Justice, and he regularly speaks and writes on government contracts, cybersecurity, national security, and emerging technology topics.

Ryan is especially experienced with:

  • Government cybersecurity standards, including the Federal Risk and Authorization Management Program (FedRAMP); DFARS 252.204-7012, DFARS 252.204-7020, and other agency cybersecurity requirements; National Institute of Standards and Technology (NIST) publications, such as NIST SP 800-171; and the Cybersecurity Maturity Model Certification (CMMC) program.
  • Software and artificial intelligence (AI) requirements, including federal secure software development frameworks and software security attestations; software bill of materials requirements; and current and forthcoming AI data disclosure, validation, and configuration requirements, including unique requirements that are applicable to the use of large language models (LLMs) and dual use foundation models.
  • Supply chain requirements, including Section 889 of the FY19 National Defense Authorization Act; restrictions on covered semiconductors and printed circuit boards; Information and Communications Technology and Services (ICTS) restrictions; and federal exclusionary authorities, such as matters relating to the Federal Acquisition Security Council (FASC).
  • Information handling, marking, and dissemination requirements, including those relating to Covered Defense Information (CDI) and Controlled Unclassified Information (CUI).
  • Federal Cost Accounting Standards and FAR Part 31 allocation and reimbursement requirements.

Prior to joining Covington, Ryan served in the Office of Federal Procurement Policy in the Executive Office of the President, where he focused on the development and implementation of government-wide contracting regulations and administrative actions affecting more than $400 billion dollars’ worth of goods and services each year.  While in government, Ryan helped develop several contracting-related Executive Orders, and worked with White House and agency officials on regulatory and policy matters affecting contractor disclosure and agency responsibility determinations, labor and employment issues, IT contracting, commercial item acquisitions, performance contracting, schedule contracting and interagency acquisitions, competition requirements, and suspension and debarment, among others.  Additionally, Ryan was selected to serve on a core team that led reform of security processes affecting federal background investigations for cleared federal employees and contractors in the wake of significant issues affecting the program.  These efforts resulted in the establishment of a semi-autonomous U.S. Government agency to conduct and manage background investigations.

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Photo of Matthew Harden Matthew Harden

Matthew Harden is a cybersecurity and litigation associate in the firm’s New York office. He 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. He…

Matthew Harden is a cybersecurity and litigation associate in the firm’s New York office. He 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. He works with clients across industries, including in the technology, financial services, defense, entertainment and media, life sciences, and healthcare industries.

As part of his cybersecurity practice, Matthew provides strategic advice on cybersecurity and data privacy issues, including cybersecurity investigations, cybersecurity incident response, artificial intelligence, and Internet of Things (IoT). He also assists clients with drafting, designing, and assessing enterprise cybersecurity and information security policies, procedures, and plans.

As part of his litigation and investigations practice, Matthew leverages his cybersecurity experience to advise clients on high-stakes litigation matters and investigations. He also maintains an active pro bono practice focused on veterans’ rights.

Matthew currently serves as a Judge Advocate in the U.S. Coast Guard Reserve.

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