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 April 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during May 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.

The Administration Releases Version 2 of the National Cybersecurity Strategy Implementation Plan

On May 7, the Biden Administration released version 2.0 of the National Cybersecurity Strategy Implementation Plan.  The roadmap outlines “high-impact” federal initiatives, each of which are intended to improve the nation’s information security and resilience.  The initiatives are structured around the following five pillars:

1. Defend Critical Infrastructure

This includes increasing cybersecurity in the public health sector through identifying health sector specific cybersecurity performance goals, in the Education Facilities Sub-sector by establishing an Education Facilities Sub-sector Government Coordinating Council, and the Water and Wastewater Systems Sector by promoting the adoption of cybersecurity best practices across the sector.

2. Disrupt and Dismantle Threat Actors

This includes adopting a multi-jurisdictional approach among federal, states, local, tribal, private sector, and international partners to address cybercrime committed by juvenile offenders.

3. Shape Market Forces to Drive Security And Resilience

This includes creation of a voluntary cybersecurity labeling program for wireless internet of things products and research and development for cybersecurity labeling for energy products.

4. Invest in a Resilient Future

This includes building the national cyber workforce, increasing diversity, and expanding access to cyber education and training.

5. Forge International Partnerships to Pursue Shared Goals

This includes investment in the development of standards-based networks through investments from the Wireless Supply Chain Innovation Fund.

GSA Requires Secure Software Development Self-Attestation Forms By June 8 for New Contracts for Critical and Non-Critical Software

On May 14, 2024, the General Services Administration (“GSA”) Senior Procurement Executive and Chief Information Officer jointly issued Supplement 2 to GSA Acquisition Letter MV-2023-02, “Ensuring Only Approved Software Is Acquired and Used at GSA.”  The Supplement notes that the Office of Management and Budget (“OMB”) and the Cybersecurity and Infrastructure Security Agency (“CISA”) released the Secure Software Development Self-Attestation Common Form on March 11, 2024.  Pursuant to OMB Memorandum MV-2023-02, federal agencies are required to obtain Self-Attestations Common Forms from producers of certain “critical” software by June 8, 2024 and certain “non-critical” software by September 8, 2024.  However, while the OMB Memo imposes a September 8 deadline for non-critical software, GSA’s Supplement states that it will begin collecting Common Form Self-Attestations on June 8 for new contracts (and the exercise of contract options) that include the use of software “regardless of whether or not the software is considered critical.”

NIST Issues SP 800-171 Rev. 3, But DOD Issues a Class Deviation Allowing Contractors to Continue Measuring Compliance Against 800-171 Rev.2.

On May 14, 2024, the National Institute of Standards and Technology (“NIST”) released Revision 3 of Special Publication 800-171, the recommended cybersecurity requirements for nonfederal information systems that form the bedrock of the DFARS 252.204-7012 cybersecurity requirements for DOD contractors and subcontractors who handle controlled unclassified information (“CUI”).

The principal change between Rev. 2 and Rev. 3 was NISTS’ expanded use of “organization-defined parameters” in certain security controls in order to increase flexibility and the addition of new tailoring categories for other controls.  NIST also modified the 800-171 security controls to be more aligned with the NIST 800-53B security controls for federal information systems. 

In anticipation of NIST’s issuance of 800-171 Rev. 3, DOD issued a class deviation to Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.204-7012 permitting DOD contractors and subcontractors to continue complying with Rev. 2 rather than having immediately comply with Rev. 3 for purposes of assuming or certifying their compliance with the NIST 800-171 security controls under DFARS 252.204-7012.  This is also consistent with DoD’s proposed rule for its Cybersecurity Maturity Model Certification (CMMC) Program, which incorporates Rev. 2 of NIST 800-171.    

CISA Issues Guidance on Use and Sharing of SBOMs

Two CISA-sponsored working groups have issued separate guidance documents on the use of software bills of materials (“SBOMs”).

The first SBOM guidance document, issued on May 20, is titled “Software Transparency in SaaS Environments.”  This guidance states that “SBOM[s] [have] emerged as a key tool for communicating data about the components in packaged software.”  It examines how to map the concepts and mechanics of SBOMs to on-line software-as-a-system (SaaS) applications, and addresses certain SaaS characteristics that complicate such mapping.  The guidance concludes that, while there are factors that limit the efficacy of using SBOMs to communicate software component data for SaaS applications “SBOM concepts provide a valuable jumping-off point toward transparency for SaaS.”

The second of these guidance issued on May 24, is titled “SBOM Sharing Primer.”  It provides examples of how SBOMs can be shared among different actors throughout the software supply chain.  These examples are of SBOM sharing methods currently in use, from proprietary software vendors sharing SBOMs via email to open source software projects publishing SBOMs in centralized repositories.  The document concludes that choosing an appropriate SBOM sharing method “depends on factors like software licensing, industry practices, and organizational priorities.”

DOD Seeks Public Comment on How It Can Help Integrate AI Into Defense Systems

On May 22, 2024, the Department of Defense (“DOD”) Office of Policy, Analysis, and Transition published a notice in the Federal Register requesting public comment on the actions that DOD could take to enable the Defense Industrial Base (“DIB”) to adopt AI for defense applications.   The notice acknowledges that “integration of AI into defense systems is pivotal to national security” and poses 15 questions, including the following:

  • “What foundational investments in the DIB does the DOD need to make to support increased adoption of AI into defense systems (e.g., manufacturing considerations, standards, best practices, bill of materials, etc.)?  What foundational investments (e.g., standards, best practices, bill of materials, etc.) already exist within the DIB for defense systems that incorporate AI?
  • “Are there specific vulnerabilities in the current and future supply chain that the DOD needs to address to support defense systems that incorporate AI?”
  • “Are there specific intellectual property considerations or challenges related to the development of AI-enabled defense systems that impact the DIB?  If so, how can DOD address these issues to promote innovation?”
  • “What DOD financing and acquisition mechanisms can help facilitate or incentivize the DIB to continue to invest in AI Technologies for defense applications?”

DOD’s notice also requests persons submitting comments to identify “statutory, regulatory, or other policy barriers to the DIB’s design development, testing, and provision of AI-enabled defense systems in a manner consistent with DOD’s approach to Responsible AI.”

Comments are due by July 22, 2024.

NIST Initiates a Pilot Program for the Testing and Evaluation of Large Language Models

On May 28, 2024, NIST announced a program for Assessing Risks and Impacts of AI.  This program includes a pilot program for the testing and evaluation, validation, and verification (TEVV) of large language models.

This pilot will include three scenarios and related scoring methods that will be used to measure the extent to which large language models succeed or fail in meeting expected outcomes.

The Department of Defense Launches Open Data and Applications Government-owned Interoperable Repositories

The Department of Defense announced on May 30 that it has launched a new initiative, known as “Open Data and Applications Government-owned Interoperable Repositories.”  The initiative is intended to be an ecosystem that will enable industry and government to integrate data platforms to allow for the Government to maintain data ownership and industry to retain intellectual property rights to applications.  The Department has already executed contract and OTAs in connection with the initiative, including for activities to ensure access to software deployment tools and security architecture for Government data and to rapidly onboard third-party vendor and government capabilities into the government owned, contractor-operated data environment.

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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 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.