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In Ingham Regional Medical Center v. U.S. (Jan. 6, 2020), the Court of Federal Claims compelled production of certain government investigatory documents that the Court found were not privileged work product prepared “in anticipation of litigation.” The Medical Center sued to recover payments for outpatient healthcare services performed in connection with DoD’s TRICARE program…

The Department of Defense (DoD) has released Version 1.0 of the Cybersecurity Maturity Model Certification (CMMC), Appendices A-F, and an Overview Briefing. While Version 1.0 largely mirrors the draft Version 0.7, the final version includes notable revisions. Please click here to see the full client alert.

The National Institute of Standards and Technology (“NIST”) has extended the comment period on its recently released draft documents, NIST SP 800-171 Revision 2 and NIST SP 800-171B. The comment period for both NIST SP 800-171 Revision 2 and NIST SP 800-171B was initially open until July 19, 2019. It was recently extended to…

After over a decade, the first action has been filed that may test the bounds of the Support Anti-Terrorism by Fostering Effective Technologies Act (“SAFETY Act”) of 2002. MGM Resorts International recently filed suit related to the October 2017 Mandalay Bay country music concert shooting, asking a federal court to rule that it cannot be…

Less than two weeks after the National Institute of Standards and Technology (NIST) published a draft version of NIST SP 800-171A, Assessing Security Requirements for Controlled Unclassified Information, on November 28, the National Archives and Records Administration (NARA) announced today that the comment period has been extended to January 15, 2018.  This gives interested …

Last week, we highlighted our colleagues’ post in Crowell’s Trade Secrets Trends focusing on recent comments submitted by the U.S. Chamber of Commerce regarding the need to stem the cyber theft of intellectual property.  Today, we once again turn to our sister blog to highlight an example of how that theft plays out in the…

Yesterday, the DoD published an Interim Rule that, if finalized as drafted, would expand the already onerous requirements of the DFARS Safeguarding Clause to a broader array of potentially 10,000 defense contractors.  Citing “recent high-profile breaches of federal information,” the DoD’s Interim Rule emphasizes the need for clear, effective, and consistent cybersecurity protections in its contracts.  The Interim Rule proposes to significantly expand the scope of covered information and to require subcontractors to report cyber incidents directly to the DoD (in addition to prime contractors).  Together, these changes will likely increase the scope of potential liability for government contractors and subcontractors who fail to implement adequate cybersecurity measures.

The Interim Rule seeks to enhance cybersecurity protections primarily by expanding the application of the DFARS Safeguarding Clause, which was once itself a heated point of debate.  Currently, the DFARS Safeguarding Clause imposes two sets of requirements on covered defense contractors.  First, they must implement “adequate security” on certain information systems, typically by implementing dozens of specified security controls.  Second, they must report various cyber incidents to the DoD within 72 hours of their discovery.  These requirements, however, apply only to information systems housing “unclassified controlled technical information” (UCTI), which is generally defined as controlled technical or scientific information that has a military or space application. 

The Interim Rule would expand that application to information systems that possess, store, or transmit “covered defense information” (CDI).  CDI would encompass UCTI, meaning that most contractors subject to the DFARS Safeguarding Clause would remain subject to the Interim Rule.  But CDI goes beyond the DFARS Safeguarding Clause by also including information critical to operational security, export controlled information, and “any other information,  marked or otherwise identified in the contract, that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government policies.”  Significantly, the Interim Rule lists “privacy” and “proprietary business information” as examples of the latter, leaving many covered contractors to wonder exactly how far the definition of “covered defense information” goes.  To keep up with its new application, the Interim Rule would change the name of Clause 252.204-7012 from “Safeguarding Unclassified Controlled Technical Information” to “Safeguarding Covered Defense Information and Cyber Incident Reporting.”

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Continue Reading Interim Rule Could Expand Already Onerous DFARS Cyber Requirements

Crowell & Moring is proud to announce that the ABA Public Contract Law Section has recognized Partner David Bodenheimer, along with Maureen Kelly of Northrop Grumman and Annejanette Pickens of General Dynamics, for their exceptional efforts as co-chairs of the Section’s Committee on Cybersecurity, Privacy, and Data Protection.  The Section recently presented the Committee with…

The recent arrests of Chinese nationals for alleged economic espionage are raising eyebrows across American industries, who are rightfully asking how they can protect themselves from becoming the next foreign target. U.S. universities have been key figures in these headlines. The risk of economic espionage is a serious one for higher education because universities are…

Crowell & Moring would like to invite government contractors to ring-side seats for the fight of the year – Congress v. the White House.  This year’s Ounce of Prevention Seminar (OOPS) will focus on the dynamic interplay between the opposite ends of Pennsylvania Avenue and how it will ultimately impact government contractors across the industry.  …