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Ashden Fein

Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.

For cybersecurity matters, Ashden counsels clients on preparing for and responding to cyber-based attacks, assessing security controls and practices for the protection of data and systems, developing and implementing cybersecurity risk management and governance programs, and complying with federal and state regulatory requirements. Ashden frequently supports clients as the lead investigator and crisis manager for global cyber and data security incidents, including data breaches involving personal data, advanced persistent threats targeting intellectual property across industries, state-sponsored theft of sensitive U.S. government information, extortion and ransomware, and destructive attacks.

Additionally, Ashden assists clients from across industries with leading internal investigations and responding to government inquiries related to the U.S. national security and insider risks. He also advises aerospace, defense, and intelligence contractors on security compliance under U.S. national security laws and regulations including, among others, the National Industrial Security Program (NISPOM), U.S. government cybersecurity regulations, FedRAMP, and requirements related to supply chain security.

Before joining Covington, Ashden served on active duty in the U.S. Army as a Military Intelligence officer and prosecutor specializing in cybercrime and national security investigations and prosecutions -- to include serving as the lead trial lawyer in the prosecution of Private Chelsea (Bradley) Manning for the unlawful disclosure of classified information to Wikileaks.

Ashden currently serves as a Judge Advocate in the
U.S. Army Reserve.

Contact:Read more about Ashden FeinEmail

On February 4, 2022, the National Institute of Standards and Technology (“NIST”) published its Recommended Criteria for Cybersecurity Labeling for Consumer Internet of Things (IoT) Products (“IoT Criteria”).  The IoT Criteria make recommendations for cybersecurity labeling for consumer IoT products, in other words, for IoT products intended for personal, family, or household use.

The purpose of the publication, as described by NIST, is to identify “key elements of a potential labeling scheme.”  The publication makes clear, however, that the scheme would not be established or managed by NIST, but rather “by another organization or program,” referred to in the publication as the “scheme owner.”  The identity of the scheme owner is undetermined, but it “could be a public or private sector” entity.

The publication of the IoT Criteria represents another step toward a national cybersecurity labeling scheme for consumer IoT products.  We should expect that the framework established by NIST in this publication will serve as a model for these requirements.

IoT Criteria Framework.  The IoT Criteria establish recommended considerations for three key aspects of a potential cybersecurity IoT labeling program:

  1. Baseline Product Criteria
  2. Labeling
  3. Conformity Assessments

Continue Reading NIST Publishes Recommended Criteria for Cybersecurity Labeling for Consumer Internet of Things (IoT) Products

On January 4, 2022, the Federal Trade Commission published a warning to companies and their vendors to take reasonable steps to remediate the Log4j vulnerability (CVE-2021-44228).  The FTC provided a list of recommended remedial actions for companies using the Log4j software.  The FTC’s warning references obligations under the FTC Act…
Continue Reading FTC Warns Companies to Remediate the Log4j Vulnerability and Hints at Potential Enforcement Actions

On December 15, 2021, the U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agency (“CISA”) announced the publication of a warning for “critical infrastructure owners and operators to take immediate steps to strengthen their computer network defenses against potential malicious cyber attacks” before the upcoming holiday season.  CISA’s warning…
Continue Reading CISA Warns Critical Infrastructure Owners and Operators to Prepare for and Take Steps to Mitigate Holiday Cyber Threats

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Continue Reading November 2021 Developments Under President Biden’s Cybersecurity Executive Order

In a December 2020 speech, Deputy Assistant Attorney General Michael Granston warned that cybersecurity fraud could see enhanced enforcement under the False Claims Act (“FCA”).  On October 6, 2021, Deputy Attorney General Lisa Monaco announced that the Department of Justice (“DOJ”) would be following through on that warning with the…
Continue Reading DOJ Announces New Civil Cyber-Fraud Initiative

On September 29, 2020, the Department of Defense (DoD) released an interim rule that industry hoped would provide clear guidance with regard to DoD’s implementation of its Cybersecurity Maturity Model Certification (CMMC) framework.  The vast majority of the rule focuses on DoD’s increased requirements for confirming that contractors are currently

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Continue Reading Department of Defense’s Interim Rule Imposes New Assessment Requirements But is Short on Detail on Implementation of CMMC

Almost a year after Assistant Secretary of the Navy James Geurts issued his September 28, 2018 memorandum (Geurts Memo) imposing enhanced security controls on “critical” Navy programs, the Navy has issued an update to the Navy Marine Corps Acquisition Regulations Supplement (NMCARS) to implement those changes more formally across the Navy.  Pursuant to this update, a new Annex 16 in the NMCARS provides Statement of Work (SOW) language that must be added into Navy solicitations and contracts where the Navy has determined “the risk to a critical program and/or technology warrants its inclusion.”  In addition to the technical requirements reflected in the Geurts Memo, the Navy has added Subpart 5204.73 to the NMCARS that, among other things, instructs Contracting Officers (COs) to seek equitable reductions or consider reducing or suspending progress payments for contractor non-compliance with the Annex 16 and DFARS 252.204-7012 (DFARS clause) requirements.

SUBPART 5204.73

Equitable Price Reductions/Suspension and Reduction of Progress Payments.  The Navy added Subpart 5204.73 “Safeguarding Covered Defense Information and Cyber Incident Reporting” to the NMCARS.  This Subpart provides direction to COs in three areas.  First, it provides that Annex 16 must be included in the SOWs of relevant solicitations, contracts and task or delivery orders.  Second, the Subpart directs COs to consider the DFARS clause, Annex 16 and the Geurts Memo as material requirements.[1]  Finally, if COs accept supplies or services with “critical or major non-conformances (e.g., failure to comply with material requirement)” they are directed to impose an equitable price reduction.  The Subpart identifies a “reasonable amount” for this reduction as 5% of the total contract value.  That amount can be increased if there is an increased risk from the non-conformance.  If the CO decides to require correction of nonconforming services or supplies rather than acceptance, the CO is directed to withhold/reduce or suspend progress payments if correction is not made in a timely manner.

This revision to the NMCARS represents a powerful enforcement mechanism for the Navy.  Until now, DOD has stated that the failure to comply with the DFARS clause requirements would be treated as a contract performance issue.  Although that basic concept continues, the Subpart explicitly defines the DFARS clause, Annex 16 and the Geurts Memo as “material requirements” of the contract.  A failure to comply with a material requirement would make contractors potentially liable for significant equitable reductions or for a suspension or reduction of progress payments.  Read literally, a contractor that reports a cyber incident 76 hours (and not 72 hours) after discovery may be violating a material requirement of the contract. Contractors may derive some comfort from the NMCARS’ reliance on FAR 32.503-6, “Suspension or reduction of payments,” which at least requires COs to “act fairly and reasonably” and “base decisions on substantial evidence.”  However, the nonconforming supplies or services provision  in FAR 46.407 does not impose a similar fairness requirement on COs.

ANNEX 16

The Navy’s Annex 16 covers five areas: (1) System Security Plans (SSPs) and Plans of Action and Milestones (POA&Ms) Reviews; (2) Compliance with NIST Special Publication (SP) 800-171; (3) Cyber Incident Response; (4) Naval Criminal Investigative Service (NCIS) Outreach; and (5) NCIS/Industry Monitoring.  The requirements of Annex 16 are similar to various requirements that have been included in various Navy solicitations over the past year.  As described below, although the Annex provides more detail than the Geurts Memo, significant questions remain about how each of these requirements will be interpreted by the Navy going forward.
Continue Reading Navy Modifies Acquisition Supplement to Tighten Cybersecurity Requirements and Implement the Geurts Memorandum

On June 27, 2018, China’s Ministry of Public Security (“MPS”) released for public comment a draft of the Regulations on Cybersecurity Multi-level Protection Scheme (“the Draft Regulation”). The highly anticipated Draft Regulation sets out the details of an updated Multi-level Protection Scheme, whereby network operators (defined below) are required to

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Continue Reading China Seeks Public Comments for Draft Cybersecurity Regulations