This is the twenty-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 subsequent blogs described the actions taken by various government agencies to implement the Cyber EO from June 2021 through June 2023.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during July 2023. 

White House Releases Implementation Plan for the National Cybersecurity Strategy

On July 13, 2023, the White House published the National Cybersecurity Strategy Implementation Plan (“NCSIP”) to guide implementation of the U.S. National Cybersecurity Strategy, which was released earlier this year.  The NCSIP identified 65 initiatives that will be led by 18 different departments and agencies.  Among the many initiatives, the NCSIP outlined several specific initiatives of particular relevance to government contractors that are to be implemented over the next three years, including:

  • FAR Changes Under the Cyber EO – In the first quarter of FY2024, the Administration plans to propose Federal Acquisition Regulation (“FAR”) changes that are required under the Cyber EO to standardize cybersecurity requirements for unclassified federal information systems (FAR Case 2021-019), cyber threat and incident reporting and information sharing (FAR Case 2021-017), and supply chain software security (FAR Case 2023-002). 
  • Secure-by-Design – Also in the first quarter of FY 2024, the Department of Energy, along with the Cybersecurity and Infrastructure Security Agency (“CISA”) and the Office of the National Cyber Director (“ONCD”), will “drive adoption of cyber secure-by-design principles by incorporating them into Federal projects.”  As part of this effort, the ONCD will host a legal symposium on the creation of a “software liability framework,” which will “explore different approaches to a software liability framework that draw from different areas of regulatory law and reflect inputs from computer scientists as to the extent that software liability may or may not be like these other regimes.”
  • IoT Labeling – By the end of FY2023, the Administration intends to implement its Internet of Things (“IoT”) labeling program and – in line with the IoT Cybersecurity Improvement Act of 2020 – propose corresponding changes to the FAR.
  • Cybersecurity Framework 2.0 – By the first quarter of FY2025, the National Institute of Standards and Technology (“NIST”) plans to publish its Cybersecurity Framework 2.0.  The Plan describes the update as “significant” and notes that it will address, among other things, alignment of regulations with international standards.
  • Software Bills of Materials (“SBOMs”) – During the second quarter of FY2025, CISA will work with key stakeholders to identify and reduce gaps in software bills of materials (“SBOMs”) and explore requirements for a globally-accessible database for end-of-life/end-of-support software. 
  • Critical Infrastructure – The NCSIP targets the second quarter of FY2025 for setting cybersecurity requirements across critical infrastructure sectors and the fourth quarter of FY2025 for cyber incident reporting requirements for critical infrastructure.
  • False Claims Act Enforcement – The Department of Justice (“DOJ”) will be tasked with expanding its efforts to leverage the False Claims Act to pursue civil actions against government contractors who fail to meet cybersecurity obligations.  Although the Plan targets the fourth quarter of 2025, contractors are already seeing a more active DOJ, including with its Civil Cyber Fraud Initiative that was announced in October 2021.

For additional information on the NCSIP, please see our post on Covington’s Inside Privacy blog

ONCD Issues Request for Information on Harmonizing Cybersecurity Regulations

On July 19, 2023, the ONCD issued a request for information (“RFI”) seeking input from stakeholders to “understand existing challenges with regulatory overlap and inconsistency in order to explore a framework for reciprocal recognition by regulators of compliance with common baseline cybersecurity requirements.”  The RFI is broken down into nine topics with questions on each topic.  These include requests for information on conflicting regulations, existing frameworks, third party frameworks, and the treatment of cloud services.  Responses to the RFI are due by October 31, 2023.

The FCC Leads an Initiative to Create a U.S. Cyber Trust Mark for Internet-of-Things (“IoT”) Devices

On July 18, 2023, the Biden Administration announced that the Federal Communications Commission (“FCC”) would take the lead in developing a “U.S. Cyber Trust Mark” for IoT devices such as smart refrigerators, smart televisions, smart climate control systems, and smart fitness trackers.  The FCC will create this mark using the criteria that NIST developed under the Cyber EO for consumer IoT devices.

NIST Issues Draft Zero Trust Architecture Practice Guides

On July 19, 2023, NIST issued for public comment a draft third version of volumes B and C of its preliminary practice guide SP-1800-35, “Implementing a Zero Trust Architecture.”  According to NIST, these two volumes “describe ten ZTA implementations” and “demonstrat[e] how blends of commercially available technologies can be integrated and brought into play to build various types of ZTAs.”  The draft comment period for these two draft implementation guides is open through September 4, 2023.

Photo of Robert Huffman Robert Huffman

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance…

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance, contract claims and disputes, and intellectual property (IP) matters related to U.S. government contracts.

Bob has leading expertise advising companies that are defending against investigations, prosecutions, and civil suits alleging procurement fraud and false claims. He has represented clients in more than a dozen False Claims Act qui tam suits. He also represents clients in connection with parallel criminal proceedings and suspension and debarment.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including cybersecurity, the Buy American Act/Trade Agreements Act (BAA/TAA), and counterfeit parts requirements. He also has extensive experience litigating contract and related issues before the Court of Federal Claims, the Armed Services Board of Contract Appeals, federal district courts, the Federal Circuit, and other federal appellate courts.

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 items and services. He handles IP matters involving government contracts, grants, Cooperative Research and Development Agreements (CRADAs), and Other Transaction Agreements (OTAs).

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 Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

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.

Photo of Matthew Harden Matthew Harden

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