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

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 theNational 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-AttestationForms 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 AllowingContractors 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 HelpIntegrate 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 andEvaluation 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 andApplications 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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