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 subsequent blogs described the actions taken by various government agencies to implement the Cyber EO from June 2021 through May 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during June 2024.  It also describes key actions taken during May 2024 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, national security, and software supply chain security.

Office of Management and Budget Releases Report on Agency Cybersecurity Activities Under the Federal Infrastructure Modernization Act

On June 7, the Office of Management and Budget (“OMB”) released an annual report in connection with its obligations under the Federal Information Security Modernization Act of 2014 (“FISMA”).  The report highlights the progress that the Administration has made to securing Government under the Cyber EO, including by improving the roll out of endpoint detection and response (“EDR”) and multi-factor authentication (“MFA”) across the Government.  The report also highlights the Administration’s efforts to move towards full implementation of zero trust principles across the Government by the end of FY2024.  The report assigned a composite score (out of 100) based on an evaluation of agency information security policies and practices of between 90-100 for 12 agencies, of between 80-89 for 7 agencies, and of between 70-79 for 4 agencies.  The report also indicates that agencies have largely been successful in meeting the deadlines outlined in the National Cybersecurity Strategy Implementation Plan.

The FedRAMP Program Office Releases Emerging Technology Prioritization Framework

In connection with the directive in Office of Management and Budget Memorandum M-24-10 on agency use of artificial intelligence, in mid-June the FedRAMP program office released a framework for prioritizing emerging technologies, including artificial intelligence, for FedRAMP authorizations.  FedRAMP authorizations are generally required for agencies to use cloud services.  The process can be lengthy, and in some cases it can be difficult to obtain sponsorship or provisional authorization from the Joint Authorization Board.  Under the framework, FedRAMP will generally prioritize generative AI chat interfaces, generative AI code-generation and debugging tools, generative AI prompt-based image generators, and general purpose API offerings that facilitate the integration generative AI capabilities into new or existing systems.  There will be three offerings that will be prioritized in each of these categories, which entitles the service provider to move to the front of the line for obtain an authorization. 

NIST Issues Draft National Standards Strategy for Critical and Emerging Technology

On June 26, the National Institute of Standards and Technology (“NIST”) released a draft document on leveraging critical and emerging technology (“CET”).  The report is centered around four objectives:  (1) increase investment, (2) broaden participation, (3) enhance workforce, and (4) sustain integrity and inclusivity. 

The report sets forth an implementation roadmap that among other things, recommends that the U.S. Government take immediate action to identify opportunity to increase standards participation; track grants and programs that promote, foster, and remove barriers to U.S. stakeholder participation in international standards activities; and track and evaluating current USG technology cooperation agreements with other governments.  On a more long term basis, the report recommends that the U.S. Government:

  1. “enhance standards coordination across the federal government;
  2. enhance standards coordination with the private sector;
  3. enhance standards policy coordination between the USG and foreign governments;
  4. recognize and incentivize federal agency engagement in standardization;
  5. provide strong and sustained funding for CET R&D and pre-standardization coordination;
  6. engage academia as a critical partner in standards development efforts;
  7. enhance educational efforts in standards;
  8. develop and sustain communications about standards; and
  9. remove barriers to participation in standardization.”

Public comments on the report on due on July 12.

FedRAMP issues Guidance on Secure Software Development

On June 28, the FedRAMP program office issued guidance relating to the Secure Software Development Framework.  That framework, set forth under Office of Management and Budget memoranda M-22-18 (“Enhancing the Security of the Software Supply Chain through Secure Software Development Practices”) and M-23-16 (“Update to Memorandum M-22-18, Enhancing the Security of the Software Supply Chain through Secure Software Development Practices”), requires agencies to obtain attestations or other assurance from the developers of certain software that the agencies procure and use that the software is developed using secure development practices. The FedRAMP guidance recognizes, consistent with OMB guidance, that cloud service providers participating in the FedRAMP program are subject these requirements and that “critical” software attestations were due by June 8, 2024, whereas all other software attestations are due September 8, 2024.

The guidance also recognizes that agencies are responsible for informing software developers, including cloud service providers such as software-as-a-service providers, whether the software that they are offering is “critical” software.  The guidance directs cloud services providers to upload their attestations to these secure development practices to incident response folder in the FedRAMP secure repository in addition to the CISA Repository for Software Attestations and Artifacts.  The guidance further directs cloud service providers to email agency customers and the FedRAMP program office to inform them that the forms have been uploaded.  If a cloud service provider has not uploaded an attestation form or the results of a third party assessment of its development practices to the appropriate folder, then agencies are required to contact the service provider directly to request it.

Tags: Cyber EO, EO 14028
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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.

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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. 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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