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March 2024 Developments Under President Biden’s Cybersecurity Executive Order, National Cybersecurity Strategy, and AI Executive Order

By Robert Huffman, Susan B. Cassidy, Ashden Fein, Ryan Burnette & Matthew Harden on May 1, 2024
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This is part of 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 2021through February 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during March 2024.  It also describes key actions taken during March 2024 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, secure software, and federal government contractors. 

CISA’s OMB Common Software Attestation Form is Approved by OMB

On March 11, 2024, the Cybersecurity Infrastructure Security Agency (“CISA”), released the final version of its common Secure Software Development Attestation Form, which was approved by the Office of Management and Budget (“OMB”).  The common form is a key part of OMB’s requirement for Government agencies to begin collection of attestations from software producers within three months of approval of the form for “critical” software and within six months of approval of the form for other software, as that term is defined by OMB memoranda.  To date, we have not seen additional guidance relating to the planned implementation, but if OMB adheres to its published timeline then the requirements for critical software would be slated to go into effect in early June.  CISA also launched a new repository to receive the forms, further signaling the Government’s intent to begin collecting these attestations.  Additional information on the requirements can be found in our prior post, here. 

CISA Releases a Notice of Proposed Rulemaking Regarding Critical Infrastructure Incident Reporting

On March 27, 2024, CISA released a notice of proposed rulemaking to implement critical infrastructure reporting requirements under the Cyber Incident Reporting for Critical Infrastructure Act of 2022.  The law generally established a 24-hour requirement to report ransomware payments and a 72-hour requirement to report covered cyber incidents to CISA.  The rule outlines how these requirements will function, including describing the entities that will be covered, the types of incidents that will be covered, and the exceptions for reporting requirements.  The requirements are not directly related to the Cyber EO and instead are driven by statute.  With this said, the rule will no doubt have impacts on implementation activities under the Cyber EO, such as with regard to potential efforts to harmonize incident reporting requirements as described by the proposed FAR incident reporting rule, which we discussed here.  CISA will accept comments on the rule for 60 days after its publication in the April 4 Federal Register.  More information about CISA’s rule is available here and we are working on a more complete alert on the subject.

AI Policy for Federal Agencies

The Office of Management and Budget issued guidance on governance and risk management for federal agency use of artificial intelligence across Government on March 28.  The guidance, among other things, directs federal agencies and departments to address risks from the use of AI, expand public transparency, advance responsible AI innovation, grow an AI-focused talent pool and workforce, and strengthen AI governance systems.  This includes inventorying AI use cases annually and submitting reports to OMB.  This is similar to inventory requirements under OMB’s secure software memorandum, which we discussed here.  The guidance also requests agencies to make updates to authorization processes for FedRAMP services.  A more complete analysis of the memorandum is available here. 

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.

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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.

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Photo of Ryan Burnette Ryan Burnette

Ryan Burnette advises clients on a range of issues related to government contracting. Mr. Burnette has particular experience with helping companies navigate mergers and acquisitions, FAR and DFARS compliance issues, public policy matters, government investigations, and issues involving government cost accounting and the…

Ryan Burnette advises clients on a range of issues related to government contracting. Mr. Burnette has particular experience with helping companies navigate mergers and acquisitions, FAR and DFARS compliance issues, public policy matters, government investigations, and issues involving government cost accounting and the Cost Accounting Standards.  Prior to joining Covington, Mr. Burnette served in the Office of Federal Procurement Policy in the Executive Office of the President, where he worked on government-wide contracting regulations and administrative actions affecting more than $400 billion dollars’ worth of goods and services each year.

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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.

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  • Posted in:
    Administrative, Government
  • Blog:
    Inside Government Contracts
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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