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.

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 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.