On January 30, 2020, the US Department of Defense (DoD) released version 1.0 of the Cybersecurity Maturity Model Certification (CMMC) framework, which is available here, with appendices available here. This highly anticipated 390-page release supersedes the prior draft versions, the last of which was released in December 2019. The DoD will begin requiring contractors to obtain certification under the CMMC later this year, giving companies in the supply chain little time to assess their obligations, identify and remediate cybersecurity weaknesses that might preclude their desired certification, retain an appropriate certification vendor and obtain the certification.
This certification process raises a host of legal considerations. For instance, the identification of cyber weaknesses requires a candid and thorough assessment that will result in a list of the areas where the contractor’s cybersecurity is lacking. This list may be critical in mitigating cyber risks, helping to plan for certification and in reducing the business risks that would result from a failed certification effort, but it also can be highly damaging from a legal risk perspective, especially in the hands of plaintiffs’ lawyers or regulators that may want to use it to support allegations of inadequate security. The same information required to support certification could be used to establish that a DoD contractor knew of risks and failed to take action.
These considerations underscore the importance of involving legal counsel in the process and taking steps to support a claim that key self-critical deliverables are protected under attorney-client and/or work-product privileges, while also ensuring that the contractor fully prepares for CMMC certification.
Why Did the DoD Create the CMMC?
The DoD created the CMMC to combat malicious cyber actors targeting intellectual property in the DoD’s supply chain, as such attacks threaten economic security and national security. The CMMC encompasses the security requirements for controlled unclassified information (CUI) specified in NIST SP 800-171 for DFARS Clause 252.204-7012 as well as the basic safeguarding requirements for federal contract information (FCI) specified in FAR Clause 52.204-22.