United States: DoD Releases Draft Cybersecurity Maturity Model Certification Framework

The Department of Defense (DoD) has taken another step towards definitizing the cybersecurity requirements applicable to all of its contractors beginning in 2020, in the form of Cybersecurity Maturity Model Certification (CMMC). The CMMC could be a positive step towards developing a unified standard for defense contractor cybersecurity, but it is critical that industry stakeholders provide substantive feedback on the various practices and processes the current draft proposes to ensure they are practicable, likely to produce the desired effects, and clearly articulate DoD's expectations. Furthermore, the benefit to contractors of such a unified standard will be necessarily bounded unless and until the civilian agencies undertake a similar effort to streamline cybersecurity requirements. DoD is accepting comments on this iteration of the CMMC before September 25, 2019, and intends to provide another draft for public comment in November 2019.

Background

As defense contractors are well aware, cybersecurity requirements applicable to defense procurements have long been an important issue. DFARS 252.204-7012, which went into effect on December 31, 2017, generally requires that defense contractors comply with the National Institute of Standards and Technology's Special Publication 800-171 (NIST SP 800-171) in "safeguarding" enumerated defense information and reporting cybersecurity incidents. But, it has become increasingly clear that not only is compliance with NIST SP 800-171 complex, but reliance on NIST standards alone may not prevent high-profile security incidents, let alone provide DoD with a readout on the cybersecurity maturity of its defense industrial base. The multiplicity of available standards—applied to varying degrees by different federal agencies—has also long frustrated industry. Challenges with delineating which standards apply and how to comply with each confound even the most experienced contractors, and may serve as a barrier to entry for small businesses and other companies entering the federal marketplace for the first time.

To resolve these concerns, earlier this year DoD announced the development of the CMMC, which aims to "assess and enhance the cybersecurity posture of the Defense Industrial Base (DIB)"1 by "reduc[ing] exfiltration of Controlled Unclassified Information (CUI)."2 The CMMC will combine the existing alphabet soup of security standards—including NIST SP 800-171, NIST SP 800-53, ISO 27001, ISO 27032, AIA NAS9933—into a unified standard for defense contractor cybersecurity.3 DoD has stated that "[u]nlike NIST SP 800-171, CMMC will implement multiple levels of cybersecurity" and "[i]n addition to assessing the maturity of a company's implementation of cybersecurity controls, the CMMC will also assess the company's maturity/institutionalization of cybersecurity practices and processes."4 Notably, the CMMC will build upon these existing regulations and standards by adding a verification component to identified cybersecurity practices.5

CMMC will not be a self-certification; instead, all companies doing business with DoD, including subcontractors, must be certified by an independent third party commercial certification organization.6The framework will permit contractors to certify several increasing levels of cybersecurity (from "Basic Cybersecurity Hygiene" to "Advanced"), with the intent that the lowest level will be relatively inexpensive and broadly accessible to even the smallest contractors.7 DoD has announced that the costs of obtaining the certification will be considered an allowable, reimbursable cost and "will not be prohibitive."8

Draft CMMC Version 0.4

The CMMC framework remains a work in progress. DoD indicated that it plans to publish Version 1.0 of the CMMC in January 2020, so that the certification requirement can be incorporated into Requests for Information in June 2020 and used as a "go/no go" evaluation factor in Requests for Proposals beginning in Fall 2020.9

Recently, DoD took one of many steps to reach that end goal. On September 4, 2019, DoD released an early version of the CMMC, which it calls the "Draft CMMC Version 0.4."10 In this document, which DoD has characterized as the "midpoint" of CMMC development,11 the CMMC framework is comprised of three main elements: (1) domains, (2) capabilities within each domain and (3) practices and processes.

The first element of the CMMC framework is 18 cybersecurity domains, which reflect what DoD considers to be "[k]ey sets of capabilities for cybersecurity." These domains include: Asset Control, Asset Management, Awareness and Training, Audit and Accountability, Configuration Management, Cybersecurity Governance, Identification and Authentication, Incident Response, Maintenance, Media Protection, Personnel Security, Physical Protection, Recovery, Risk Assessment, Security Assessment, Situational Awareness, System and Communications Protection, and Systems and Information Integrity.12

These domains are, in turn, comprised of various cybersecurity capabilities, i.e., "[a]chievements to ensure cybersecurity within each domain," which are further divided into individual practices and processes for each domain.13 The CMMC calls on contractors and certifiers to consider whether the company's practices and procedures are designed to ensure cybersecurity. Practices are defined cybersecurity activities, whereas processes "detail maturity of institutionalization for the practices."14 Importantly, the duality of practices and processes reflects DoD's recognition of industry feedback regarding the challenges of achieving 100% compliance with certain practices. By assessing the contractor's institutionalization of processes intended to manage the environment in which CUI resides, DoD will be assured that practices are being implemented effectively.15

The practices and processes are then mapped to five cumulative maturity levels. For each CMMC level, the associated practices and processes aim to reduce risks for a specific set of cyber threats. Levels 1 through 5 range from cost effective and affordable practices achievable for small businesses through highly advanced practices required for the most critical DoD systems.16 The corresponding processes in each level reflect the degree of optimization achieved by the contractor.

The particular requirements under each level vary. For instance, under Level 1 (Basic Cyber Hygiene), a contractor must only comply with the FAR requirements and implement ad hoc incident response and cybersecurity governance. The NIST SP 800-171 requirements—previously many contractors' key cybersecurity compliance concern—only appears in Level 3 (Good Cyber Hygiene), which also requires that the contractor maintain an Information Security Continuity Plan and communicate threat information to key stakeholders. And, NIST SP 800-171 is not considered the "gold standard" of cybersecurity compliance—two additional levels exist beyond it. Under Levels 4 and 5, contractors must implement additional safeguards, such as threat hunting, network segmentation, real-time asset tracking, 24x7 SOC operation, device authentication, and autonomous initial response actions.17 These are just examples of the practices that apply by level but demonstrate the tiered approach—an approach under which DoD believes all contractors in its supply chain can achieve some level of compliance. DoD will assess and identify the appropriate CMMC level for a particular contract and incorporate that level into the solicitation, thereby designating the pool of defense contractors eligible to compete.18

In a presentation accompanying the Draft CMMC Version 0.4, DoD explained that between now and issuance of the finalized Version 1.0 in January 2020, it intends to both refine and reduce the size of the CMMC, to include options for "[d]own selecting, prioritizing and consolidating capabilities."19 DoD also intends to incorporate a "methodology to handle maturity level trade-offs."20 DoD also requested feedback from industry stakeholders, including responses to questions regarding: (1) recommendations to remove or de-prioritize certain requirements to simplify the model, (2) elements that provide high value to the organization, (3) whether any practices should be moved or cross-referenced between levels or domains, and (4) recommendations to clarify any practices or processes.21 A revised Version 0.6 incorporating these comments will be released in November 2019.22

Key Takeaways

The impact of the CMMC cannot be overstated. This long-awaited framework of cybersecurity requirements will apply to all contractors doing business with DoD, including subcontractors. Although the required practices and processes may vary based upon the cybersecurity risks at issue, every defense contractor will be required to achieve the requisite certification in order to receive the "go" rating necessary to be considered for award. Open questions remain as to the practical and legal implications of this process:

  • While DoD is emphatic that the CMMC will apply to all contractors and subcontractors, as always, the devil lies in the details. How many levels of subcontractors down will certifications apply? Especially given DoD's recent focus on supply chain integrity, industry should be prepared for certifications to apply beyond the first tier of subcontracting. If so, where will the responsibility lie—with the prime contractor, or will DoD assert regulatory power over every supplier no matter how distant?
  • If DoD determines that subcontractor(s) require a lower level of certification than the prime, then will DoD accordingly limit the contract-related information that can be shared with the subcontractor(s)? Will DoD constrain or prohibit connectivity of information systems between the prime and lower level subcontractor(s)?
  • What about commercial item contracts? Small businesses?
  • The whole framework relies on a network of independent certifiers—who will certify the certifiers? Who will be responsible for their mistakes and oversights? And as a practical matter, will enough certifiers be available to certify the entire defense contracting industry when CMMC "goes live?" Will there be a backlog of certifications, and if so how will DoD handle variance requests?
  • DoD contractors have made significant investments in complying with the existing framework—including NIST SP 800-171. Will DoD allow for a transition period to the new certification requirements for option years or new task orders under existing contracts?
  • Will certification offer any protection from potential False Claims Act allegations resulting from an alleged noncompliance?23
  • There will be an incentive for DoD to require a higher CMMC level than necessary in solicitations—will that be protestable, or must industry concede to DoD judgment regarding the necessary level of cybersecurity protection in the national defense space?

The good news is that costs for obtaining the requisite certification will be considered allowable, and DoD appears to recognize that 100% compliance with certain practices (especially in complex or exceptionally large IT environments) is impracticable. Nevertheless, it remains critical that industry stakeholders submit feedback regarding Version 0.4 of the CMMC to gain insights on the above and other open questions as well as to help frame the substantive security requirements by level as DoD barrels towards finalization of Version 1.0 in January 2020.

It is also ever important that civilian agencies follow suit. The patchwork of cybersecurity requirements that currently govern federal contractors performing work for both civilian and defense agencies renders it costly and challenging to remain compliant, despite best efforts. Civilian agencies should strongly consider collaborating with DoD to adopt the same framework and certification requirements rather than developing a parallel set of practices and processes, which will yield further ambiguity both for longstanding contractors and those seeking to enter the federal marketplace.

* Trevor Schmitt contributed to this Advisory. Mr. Schmitt is a graduate of Georgetown University Law Center and is employed at Arnold & Porter's Washington, DC office. He is not admitted to the practice of law in Washington, DC.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

Footnote

1 Office of the Under Sec'y of Def. of Acquisition & Sustainment, Cybersec. Maturity Model Certification, CMMC Frequently Asked Questions (FAQ's), Question 5.

2 Office of the Under Sec'y of Def. of Acquisition & Sustainment, Draft CMMC Model Rev 0.4 Release & Request for Feedback Overview 4 (Sept. 2019) {hereinafter CMMC Rev 0.4 Overview}.

3 CMMC Frequently Asked Questions (FAQ's), supra note 2, at Question 8.

4 CMMC Frequently Asked Questions (FAQ's), supra note 2, at Question 9.

5 CMMC Rev 0.4 Overview, supra note 3, at 5.

6 See  CMMC Frequently Asked Questions (FAQ's), supra note 2, at Questions 12-14. In the case of "higher level assessments," the certification will be performed by "DoD assessors within the Services, the Defense Contract Management Agency (DMCA) or the Defense Counterintelligence and Security Agency (DCSA). CMMC Frequently Asked Questions (FAQ's), supra note 2, at Question 14 (DOD has not defined what these "higher level assessments" may be).

7 Id. at Question 4.

8 Id. at Question 19; see also  CMMC Rev 0.4 Overview, supra note 3, at 5 ("The goal is for CMMC to be cost-effective and affordable for small businesses to implement at the lower CMMC levels.").

9 CMMC Rev 0.4 Overview, supra note 3, at 4.

10 Office of the Under Sec'y of Def. of Acquisition & Sustainment, Draft CMMC Model Version 0.4 (Aug. 30, 2019).

11 Office of the Under Sec'y of Def. of Acquisition & Sustainment, Cybersec. Maturity Model Certification, Draft CMMC v0.4.

12 CMMC Rev 0.4 Overview, supra note 3, at 8, 10.

13 Id.  at 8.

14 Id.

15 See id. at 11.

16 See id. at 9-10.

17 Id. at 16. According to DoD, Levels 4 and 5 are "targeted toward a small subset of the DIB sector that supports DOD critical programs and technology," and therefore will not apply to large swaths of defense contractors. Id.

18 See  CMMC Frequently Asked Questions (FAQ's), supra note 2, at Question 4.

19 CMMC Rev 0.4 Overview, supra note 3, at 6.

20 Id.

21 Id.  at 18; To facilitate feedback submission and review, DoD prepared a CMMC Comment Matrix available online that must be emailed to the listed address no later than September 25, 2019 for consideration. Draft CMMC v0.4, supra  note 12.

22 CMMC Rev 0.4 Overview, supra note 3, at 4.

23 Mark D. Colley, Tom McSorley & Sonia Tabriz,  We Knew This Day Would Come: FCA Claim Based on Inadequate Cybersecurity Survives Dismissal Motion on Materiality Grounds, Arnold & Porter (May 31, 2019).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions