February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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2018 DoD Cyber Strategy: The DoD Defends Forward While the DIB Must Defend its Cyber Practices

The Department of Defense (“DoD”) recently released the summary of its cyber strategy for 2018.  The 2018 DoD Cyber Strategy, which replaces the DoD’s 2015 cyber strategy, is focused broadly on “defending forward,” shaping day-to-day competition, and preparing for conflict.  But the strategy includes items that are sure to be of interest to contractors and other private sector DoD partners, particularly the members of the Defense Industrial Base (“DIB”).  In addition to its emphasis on adopting a more flexible approach to procurement, the strategy is focused on protecting DIB networks and systems and holding members of the DIB and other private sector partners accountable for their cybersecurity practices.  Many contractors may already be seeing evidence of this emphasis on accountability, with the recent announcement by the Secretary of Defense that the DoD Office of Inspector General (“OIG”) would conduct an audit to determine whether DoD contractors have security controls in place to protect the DoD controlled unclassified information (“CUI”) maintained on their internal information systems.

Flexible Procurement.  The DoD’s cyber strategy highlights its interest in exploring new ways of procuring tools and solutions to reinforce its cyber capabilities.  As part of its goals of building a more lethal joint force and reforming its approach to cybersecurity, the DoD’s strategy aims to reduce barriers to procuring software and hardware flexibly and rapidly.  The DoD wants to reduce its reliance on expensive, bespoke software that is difficult to maintain and upgrade, and instead leverage COTS capabilities that can be optimized for DoD use.

Protecting the DIB.  The DoD’s cyber strategy is particularly concerned with protecting members of the DIB, which often have access to sensitive DoD information.  The DoD’s goal is to be prepared to defend DIB networks and systems and to collaborate with the DIB to strengthen the cybersecurity and resilience of its networks and systems.  The DoD intends to do this in two ways:  First, by setting and enforcing standards for cybersecurity, resilience, and reporting.  Second, by being prepared, when requested and authorized, to provide direct assistance on non-DoD networks prior to, during, and after cyber incidents.

This focus on the DIB is also evident in the National Cyber Strategy, which was published by the White House on the same day.  One priority of this strategy is strengthening Federal contractor cybersecurity, with a special concern raised as to contractors within the DIB responsible for researching and developing key DoD systems.

Increased Accountability.  One of the goals of the DoD’s cyber strategy is reforming the Department through increased awareness and accountability.  This includes holding the DoD’s private sector partners “accountable for their cybersecurity practices and choices.”  The emphasis on accountability also appears in the National Cyber Strategy, which states that Federal contracts will soon authorize the government to review contractor systems and access those systems to test, hunt, sense, and respond to cyber incidents.

Consistent with the DoD’s statement in its cyber strategy to hold defense contractors “accountable for their cybersecurity practices and choices,” the DoD OIG recently announced it was conducting an audit at the request of the Secretary of Defense with the objective to “determine whether DoD contractors have security controls in place to protect the DoD controlled unclassified information maintained on their systems and networks from internal and external cyber threats.”  Initial indications are that the OIG is seeking to conduct audits beyond a review of a contractor’s System Security Plan, as was anticipated based on guidance from the DoD Chief Information Office and the requirements of NIST Special Publication 800-171.  How contractors will be chosen, the scope of these audits, and the OIG’s authority to conduct them remains unclear.  But contractors should be prepared with a position should the OIG approach them to assess the security controls in place on information systems where CUI is transmitted, stored, or processed.

© 2023 Covington & Burling LLPNational Law Review, Volume VIII, Number 274

About this Author

Susan B. Cassidy, Government Contracts Attorney, Covington Burling, Law Firm

Susan Cassidy advises clients on the complex rules and regulations imposed on government contractors, with a special emphasis on the defense and intelligence sectors. She combines a sophisticated knowledge of the FAR and DFARS with the practical insight gained from senior in-house positions at both dedicated defense and commercial item contractors.

Ms. Cassidy conducts internal investigations for clients on wide array of government contracts and national security compliance issues. She regularly advises on FAR mandatory disclosure obligations and represents...

Ian Brekke, Covington Burling Law Firm, Government Contracting Litigation Attorney

Ian Brekke advises clients across a broad range of issues arising from their participation or connection to government contracting, including advising on particular regulatory requirements in contracts, grants, and other government agreements, advising clients in transactional matters involving government contractors, and providing guidance on intellectual property rights.

Mr. Brekke’s government contracts experience also includes representing clients involved in contract disputes, government investigations, civil litigation, and bid protests.