Photo of Ashden Fein

Ashden Fein

Subscribe to Ashden Fein's Posts

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.

Contact: Read more about Ashden FeinEmail

On September 14, 2022, the Director of the Office of Management and Budget (“OMB”) issued a memorandum to the heads of executive branch departments and agencies addressing the enhancement of security of the federal software supply chain.  The memorandum applies to all software (other than agency-developed software) developed or experiencing major version changes to be operated “on the agency’s information systems or otherwise affecting the agency’s information,” and requires new self-attestations from software vendors before that software can be used by agencies.  

The memorandum is one among many deliverables stemming from Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  We have covered developments under this Executive Order as part of a series of monthly posts, with 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 August 2022.  Key requirements of the memorandum are discussed in more detail below.…

Continue Reading OMB Issues Memorandum on Self-Attestations by Software Developers of Secure Software Development Practices and Collection of Software Bill of Materials

On March 15, 2022, President Biden signed the Consolidated Appropriations Act 2022, a $1.5 trillion omnibus spending package to fund the government through September 2022.  The omnibus spending package includes the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (the “Act”), which establishes two cyber incident reporting requirements for covered critical infrastructure entities:  a…

On February 4, 2022, the National Institute for Standards and Technology (“NIST”) published its Recommended Criteria for Cybersecurity Labeling of Consumer Software (“Software Labeling Criteria”).  NIST also published guidance to federal agencies regarding practices for enhancing software supply chain security when they acquire software (“Supply Chain Security Guidance”).  Both the Software Labeling Criteria and the Supply Chain Security Guidance were issued by NIST pursuant to Section 4 of Executive Order 14028, “Improving the Nation’s Cybersecurity” (the “Cyber EO”), which was issued by President Biden on May 12, 2021.  The Cyber EO and its implementation are the subject of several previous Covington blogs that are available here.

These documents have relevancy to U.S. government contractors and technology companies alike.  The Software Labeling Criteria may serve as a model for labeling requirements on software products purchased by consumers, and therefore should be reviewed closely by all software developers and resellers.  The Supply Chain Security Guidance will likely have more immediate impacts, as the Cyber EO requires (1) that the Office of Management and Budget (“OMB”) take “appropriate steps” to require that agencies comply with the Guidance with respect to software purchased after the date of the EO, and (2) that the FAR to be amended to require all agencies to procure software (defined to include firmware, operating systems, applications, and cloud-based services) in accordance with the Guidance.…

Continue Reading NIST Publishes Recommended Criteria for Cybersecurity Labeling for Consumer Software and Guidance to Federal Agencies on Practices to Enhance Supply Chain Security When Procuring Software

The Department of Defense (DoD) released key documentation relating to Cybersecurity Maturity Model Certification (CMMC) 2.0 over the past several weeks, including (1) a CMMC 2.0 Model Overview document, (2) CMMC Self-Assessment Scopes for Level 1 and 2 assessments/certifications, (3) CMMC Assessment Guides for Level 1 and 2 attestations/certifications, and (4) the CMMC Artifact Hashing…

This is the seventh 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 second, third, fourth, fifth, and sixth blogs described the actions taken by various government agencies to implement the EO during June, July, August, September, and October 2021, respectively.  This blog summarizes the key actions taken to implement the Cyber EO during November 2021.

Although most of the developments in November were directed at U.S. Government agencies, the standards being developed for such agencies could be imposed upon their contractors or otherwise be adopted as industry standards for all organizations that develop or acquire software.…

Continue Reading November 2021 Developments Under President Biden’s Cybersecurity Executive Order

This is the sixth in the 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 second, third, fourth, and fifth blogs described the actions taken by various federal agencies to implement the EO during June, July, August, and September 2021, respectively.  This blog summarizes key actions taken to implement the Cyber EO during October 2021.

Although the recent developments this month are directly applicable to the U.S. Government, the standards being established for U.S. Government agencies could be adopted as industry standards for all organizations that develop or acquire software similar to various industries adopting the NIST Cybersecurity Framework as a security controls baseline.…

Continue Reading October 2021 Developments Under President Biden’s Cybersecurity Executive Order

In a December 2020 speech, Deputy Assistant Attorney General Michael Granston warned that cybersecurity fraud could see enhanced enforcement under the False Claims Act (“FCA”).  On October 6, 2021, Deputy Attorney General Lisa Monaco announced that the Department of Justice (“DOJ”) would be following through on that warning with the launch of the DOJ’s Civil Cyber-Fraud Initiative.  The key component of the initiative is the use of the FCA against Government contractors and subcontractors that fail to comply with cybersecurity requirements, including information security standards and cyber incident reporting obligations, imposed by contract, statute, or regulation.

Under the FCA, the Government can recover treble damages and penalties from federal contractors and subcontractors that knowingly submit false claims for payment.  Notably, the FCA incentivizes private citizens (relators), including contractor employees, to file qui tam suits on behalf of the Government by guaranteeing them between 15 and 30 percent of the recovery.  DOJ stated that it intended to work with federal agencies, subject matter experts, and law enforcement partners on the Civil Cyber-Fraud Initiative.  Recently, Assistant Attorney General Brian Boynton confirmed that this initiative was also intended to incentivize relators and the aggressive relators’ bar to focus their attention on potential cybersecurity noncompliance as the basis for qui tam actions.…

Continue Reading DOJ Announces New Civil Cyber-Fraud Initiative

On September 29, 2020, the Department of Defense (DoD) released an interim rule that industry hoped would provide clear guidance with regard to DoD’s implementation of its Cybersecurity Maturity Model Certification (CMMC) framework.  The vast majority of the rule focuses on DoD’s increased requirements for confirming that contractors are currently in compliance with all 110 security controls in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171 (NIST 800-171).  The interim rule also includes a clause for adding CMMC as a requirement in a DoD contract, but the clause fails to address many of the questions that industry has with regard to implementation of the CMMC program.  The rule becomes effective November 30, 2020.  We have written previously on NIST 800-171 and the CMMC here and here respectively.

DoD has been focused on improving the cyber resiliency and security of the Defense Industrial Base (DIB) sector for over a decade.  The Council of Economic Advisors estimates that malicious cyber activity cost the U.S. economy between $57 billion and $109 billion in 2016.  The interim rule is one of multiple efforts by DoD focused on the broader supply chain security and resiliency of the DIB and builds on existing FAR and DFARS clause cybersecurity requirements.  Increasing security concerns coupled with recent high-profile data breaches have led DoD to move beyond self-certification to auditable verification systems when it comes to protecting sensitive Government information.…

Continue Reading Department of Defense’s Interim Rule Imposes New Assessment Requirements But is Short on Detail on Implementation of CMMC

The National Institute for Standards and Technology released the draft of NIST Special Publication 800-172 (“NIST SP 800-172”) on July 6, 2020.  This draft special publication succeeds the prior draft NIST SP 800-171B that NIST published in June 2019, and operates as a supplement to the NIST SP 800-171 controls that federal contractors generally must comply with in order to transmit, process, and store Controlled Unclassified Information (“CUI”).

Like the draft of NIST SP 800-171B released last year that it replaces, the publication recognizes that the basic and derived security controls in NIST SP 800-171 are “not designed to address APTs [Advanced Persistent Threats].”  As the publication notes,  “the APT may find ways to breach and/or compromise boundary defenses and deploy malicious code within a defender’s system.”  Thus, the additional safeguards in NIST SP 800-172 are meant to “outmaneuver, confuse, deceive, mislead, and impede the adversary—that is, take away the adversary’s tactical advantage and protect and preserve the organization’s critical programs and high value assets.”

Comments on the draft are due on August 21, 2020.…

Continue Reading National Institute for Standards and Technology Releases Draft of NIST SP 800-172

On January 31, the Department of Defense (“DoD”) released Version 1.0 of its Cybersecurity Maturity Model Certification (“CMMC”).  This is the fourth iteration of the CMMC that DoD has publicly released since it issued the first draft in October, and it is intended to be the version that auditors will be trained against, and that will eventually govern defense contractors’ cybersecurity obligations.  (We discussed the draft versions of the CMMC in earlier blog posts, as well as DoD’s Version 1.0 release announcement.)

As outlined in more detail below, the CMMC is a framework that “is designed to provide increased assurance to the DoD that a DIB [Defense Industrial Base] contractor can adequately protect CUI [Controlled Unclassified Information] at a level commensurate with the risk, accounting for information flow down to its subcontractors in a multi-tier supply chain.”

DoD stated publicly that it plans to add CMMC requirements to ten Requests for Information (“RFIs”) and ten Requests for Proposals (“RFPs”) by the end of this year, with contractors and subcontractors expected to meet all applicable CMMC requirements at the time of award.  DoD has indicated that these RFPs may involve relatively large awards, as it anticipates that each award will impact approximately 150 different contractors at all levels of the supply chain and at various levels of CMMC certification.  DoD’s goal is to have CMMC requirements fully implemented in all new contract awards by Fiscal Year 2026.…

Continue Reading A Closer Look at Version 1.0 of DoD’s Cybersecurity Maturity Model Certification