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Continuing Effort to Protect National Security Data and Networks

CMMC 2.0 – Simplification and Flexibility of DoD Cybersecurity Requirements

Evolving and increasing threats to U.S. defense data and national security networks have necessitated changes and refinements to U.S. regulatory requirements intended to protect such.

In 2016, the U.S. Department of Defense (DoD) issued a Defense Federal Acquisition Regulation Supplement (DFARs) intended to better protect defense data and networks. In 2017, DoD began issuing a series of memoranda to further enhance protection of defense data and networks via Cybersecurity Maturity Model Certification (CMMC). In December 2019, the Department of State, Directorate of Defense Trade Controls (DDTC) issued long-awaited guidance in part governing the minimum encryption requirements for storage, transport and/or transmission of controlled but unclassified information (CUI) and technical defense information (TDI) otherwise restricted by ITAR.

DFARs initiated the government’s efforts to protect national security data and networks by implementing specific NIST cyber requirements for all DoD contractors with access to CUI, TDI or a DoD network. DFARs was self-compliant in nature.

CMMC provided a broad framework to enhance cybersecurity protection for the Defense Industrial Base (DIB). CMMC proposed a verification program to ensure that NIST-compliant cybersecurity protections were in place to protect CUI and TDI that reside on DoD and DoD contractors’ networks. Unlike DFARs, CMMC initially required certification of compliance by an independent cybersecurity expert.

The DoD has announced an updated cybersecurity framework, referred to as CMMC 2.0. The announcement comes after a months-long internal review of the proposed CMMC framework. It still could take nine to 24 months for the final rule to take shape. But for now, CMMC 2.0 promises to be simpler to understand and easier to comply with.

Three Goals of CMMC 2.0

Broadly, CMMC 2.0 is similar to the earlier-proposed framework. Familiar elements include a tiered model, required assessments, and contractual implementation. But the new framework is intended to facilitate three goals identified by DoD’s internal review.

  • Simplify the CMMC standard and provide additional clarity on cybersecurity regulations, policy, and contracting requirements.

  • Focus on the most advanced cybersecurity standards and third-party assessment requirements for companies supporting the highest priority programs.

  • Increase DoD oversight of professional and ethical standards in the assessment ecosystem.

Key Changes under CMMC 2.0

The most impactful changes of CMMC 2.0 are

  • A reduction from five to three security levels.

  • Reduced requirements for third-party certifications.

  • Allowances for plans of actions and milestones (POA&Ms).

CMMC 2.0 has only three levels of cybersecurity

An innovative feature of CMMC 1.0 had been the five-tiered model that tailored a contractor’s cybersecurity requirements according to the type and sensitivity of the information it would handle. CMMC 2.0 keeps this model, but eliminates the two “transitional” levels in order to reduce the total number of security levels to three. This change also makes it easier to predict which level will apply to a given contractor. At this time, it appears that:

  • Level 1 (Foundational) will apply to federal contract information (FCI) and will be similar to the old first level;

  • Level 2 (Advanced) will apply to controlled unclassified information (CUI) and will mirror NIST SP 800-171 (similar to, but simpler than, the old third level); and

  • Level 3 (Expert) will apply to more sensitive CUI and will be partly based on NIST SP 800-172 (possibly similar to the old fifth level).

Significantly, CMMC 2.0 focuses on cybersecurity practices, eliminating the few so-called “maturity processes” that had baffled many DoD contractors.

CMMC 2.0 relieves many certification requirements

Another feature of CMMC 1.0 had been the requirement that all DoD contractors undergo third-party assessment and certification. CMMC 2.0 is much less ambitious and allows Level 1 contractors — and even a subset of Level 2 contractors — to conduct only an annual self-assessment. It is worth noting that a subset of Level 2 contractors — those having “critical national security information” — will still be required to seek triennial third-party certification.

CMMC 2.0 reinstitutes POA&Ms

An initial objective of CMMC 1.0 had been that — by October 2025 — contractual requirements would be fully implemented by DoD contractors. There was no option for partial compliance. CMMC 2.0 reinstitutes a regime that will be familiar to many, by allowing for submission of Plans of Actions and Milestones (POA&Ms). The DoD still intends to specify a baseline number of non-negotiable requirements. But a remaining subset will be addressable by a POA&M with clearly defined timelines. The announced framework even contemplates waivers “to exclude CMMC requirements from acquisitions for select mission-critical requirements.”

Operational takeaways for the defense industrial base

For many DoD contractors, CMMC 2.0 will not significantly impact their required cybersecurity practices — for FCI, focus on basic cyber hygiene; and for CUI, focus on NIST SP 800-171. But the new CMMC 2.0 framework dramatically reduces the number of DoD contractors that will need third-party assessments. It could also allow contractors to delay full compliance through the use of POA&Ms beyond 2025.

Increased Risk of Enforcement

Regardless of the proposed simplicity and flexibility of CMMC 2.0, DoD contractors need to remain vigilant to meet their respective CMMC 2.0 level cybersecurity obligations.

Immediately preceding the CMMC 2.0 announcement, the U.S. Department of Justice (DOJ) announced a new Civil Cyber-Fraud Initiative on October 6 to combat emerging cyber threats to the security of sensitive information and critical systems. In its announcement, the DOJ advised that it would pursue government contractors who fail to follow required cybersecurity standards.

As Bradley has previously reported in more detail, the DOJ plans to utilize the False Claims Act to pursue cybersecurity-related fraud by government contractors or involving government programs, where entities or individuals, put U.S. information or systems at risk by knowingly:

  • Providing deficient cybersecurity products or services

  • Misrepresenting their cybersecurity practices or protocols, or

  • Violating obligations to monitor and report cybersecurity incidents and breaches.

The DOJ also expressed their intent to work closely on the initiative with other federal agencies, subject matter experts and its law enforcement partners throughout the government.

As a result, while CMMC 2.0 will provide some simplicity and flexibility in implementation and operations, U.S. government contractors need to be mindful of their cybersecurity obligations to avoid new heightened enforcement risks.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 320
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About this Author

Andrew Tuggle IP Attorney Bradley Law Firm Huntsville
Associate

Andrew Tuggle’s practice focuses on technology and intellectual property law. He helps clients protect their innovations and comply with laws about data and technology.

Andrew helps clients protect their innovations through patents, trademarks, and trade secrets. With a strong technical background, he advises clients on how to comply with laws about cybersecurity, data privacy, digital assets, and exports.

Prior to law school, Andrew worked for a large, multinational hardware manufacturer; for a small engineering-design startup; and in academic DARPA- and G8-funded research....

256.517.5107
David Vance Lucas Technology Lawyer Bradley Law Firm Alabama
Partner

David Lucas provides legal strategy for technology and business. He applies legal, technological and operational experience to craft strategic advice on a variety of intellectual property, international trade and complex litigation matters.

David accumulated much of his experience as general counsel for Intergraph Corporation, an international technology company. In recent years, he expanded his experience into the burgeoning biotech industry as general counsel for a clinical laboratory software company and as a member of the HudsonAlpha Foundation Board.

David is also a...

256.517.5131
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