CUI Executive Agent Response to INSA Report

The Intelligence and National Security Alliance (INSA) recently issued a report on the CUI Program and we welcome their input. We wanted to take this opportunity to give the broader CUI community an update on some of our ongoing efforts.

It is a top priority of the Controlled Unclassified Information (CUI) Executive Agent to work with industry. We recognize the impact CUI implementation will have not just on Federal agencies, but also on industry, state, local, tribal, and foreign partners. Throughout the development of CUI, we have worked to engage with each of these partners to improve the ease of how the executive branch protects and shares information.

Our efforts are focused on achieving a user-friendly CUI Program. We are undertaking several efforts to achieve that:

1 ) Streamlining the CUI Registry to reduce the number of CUI categories. We started with the privacy categories since they are used by every agency. Currently we are projecting we will be able to reduce the number of privacy categories from their current nine to around two or three. We have also started work on reducing the law enforcement and legal groups of categories, which are also broadly used across agencies. We will soon be starting on the categories in the financial, acquisition, and proprietary information groupings, with the remaining categories to follow.  

2 ) Transitioning more CUI categories from Specified to Basic. Currently 65 out of 125 categories have only CUI Basic authorities. An authority in the CUI Registry context is a law, Federal regulation, or Government-wide policy that requires or permits the Federal Government to safeguard or restrict dissemination of particular information. Some authorities do not specify, or set out, protections for the information they allow agencies to safeguard; they are called CUI Basic authorities. The CUI program has established a baseline set of protections for information that is governed by such authorities, which are the CUI Basic protections. Thus, all of the information in these 65 categories have the same CUI Basic safeguarding standard, rather than each having their own.

The remaining 60 categories have one or more Specified authorities. An authority is a Specified authority when it not only requires or permits an agency to protect the information or restrict its dissemination, but also establishes specific protections – it specifies what the protection must be. All of these Specified authorities existed prior to the establishment of the CUI Program, most in laws or Federal regulations, and they could not be ignored or disregarded. They have thus been incorporated, for the time being, into the CUI program with their pre-existing Specified requirements. Often, the authority specifies only one, or a couple, of protections, in which case the remaining protections for the information involved default to CUI Basic protections. This means that even CUI Specified information is in many cases protected using the same standards as information in the 65 Basic-only categories, with only one or two differences. We have a longer-term initiative we have already begun, to work with agencies to address “grandfathered” regulations on the Registry and bring them into alignment with CUI standards. In addition, all new authorities must be coordinated with the CUI Executive Agent and it will take a very high threshold to justify any authority not being aligned with the Basic protections.

The CUI Executive Agent is actively working with agencies to transition a number of pre-existing authorities from Specified to Basic. Every Specified category’s authorities are being re-reviewed to determine the steps necessary to move it to Basic. The lowest-hanging fruit will be moved first. That starts with authorities that are Specified because of dissemination requirements. Some of the existing dissemination control markings, combined with increased agency interest in moving authorities from Specified to Basic as they implement, have already allowed us to build agreement within the inter-agency community to move authorities from Specified to Basic. We are exploring new dissemination controls that would serve the dual purpose of allowing authorities to be moved to Basic and communicating more effectively to recipients the protections they must follow.

After addressing authorities that can move from Specified to Basic due to dissemination restriction aspects, we will be working with agencies to revise regulations and Government-wide policies to align those authorities with the Basic protections where reasonable. We have already begun this effort with a few agencies who had such regulations up for revision. Once those authorities have been addressed, we will work with both agencies and Congress to address Specified protections that are required by law.

3 ) Adding more information to CUI Registry entries. The CUI categories were originally developed with substantial input from agencies approximately ten years ago. As agencies have begun earnest implementation in recent years, they have started realizing that they don’t necessarily need all the category divisions to effectively safeguard and share the information, but that it would be helpful, particularly in categories that have many authorities listed, to have more information about each authority conveyed on the category page. To make the CUI Registry more user-friendly, we are therefore also improving the category descriptions and adding information for each authority, such as which entity promulgated the authority, which agencies are covered by the authority, how it connects with other authorities, which information the authority covers, and a summary of the authority’s requirements.

As we work to make the CUI Program more user-friendly, we are also taking steps to address its impact on industry:

1 ) Prioritizing a Federal Acquisition Regulation (FAR) clause for CUI. One of the highest priorities of the CUI Executive Agent is getting a CUI FAR clause issued. This will create a common mechanism to communicate which information contractors create for and receive from the Federal Government must be protected, how to protect it, and who it can be shared with. Currently laws, Federal regulations, and Government-wide policies already mandate these protections, but there is not a standard way these requirements are shared with contractors. Once the FAR clause is issued, it will be a standard vehicle for conveying whether CUI is involved in the contract and what the existing requirements are for safeguarding it. Contractors and Government officials will know the place in any solicitation or contract to find this information. It will also increase the clarity of the existing requirements, while the continued implementation of CUI further reduces the complexity and vagueness that existed pre-CUI.

2 ) Multi-agency information sharing agreements. We are also working on developing a standard multi-agency information sharing agreement that allows an entity outside the Federal Government to establish an information sharing agreement with multiple agencies at once.

3 ) Consistent information systems requirements. The CUI program uses the most common existing information security controls, the FIPS Publication 199 moderate confidentiality impact level, as the standard for systems containing CUI Basic information, and for the vast majority of systems containing CUI Specified information (most CUI Specified authorities don’t set information systems controls). In addition, the CUI Executive Agent worked extensively with the National Institute of Standards and Technology (NIST) to incorporate these requirements into a contractor-specific environment and framework using NIST SP 800-171, which reduces the controls contractors need to implement. Agencies are required to use NIST SP 800-171 for all non-Federal information systems, and its use will also be incorporated into the CUI FAR clause. This grounds technology protections in an existing standard (moderate confidentiality) that most agencies were already using and most contractors were already required to meet, and provides much-desired clarity and streamlining for contractors, via NIST SP 800-171, as we see increased cyber threats.

4 ) Decontrol mechanisms. Prior to the CUI program, contractors would often have no formal recourse to get information decontrolled. The CUI program requires that agencies establish a decontrol process, which provides contractors and others with a mechanism by which to make those requests. Though we recognize this might not go as far as some industry and open-government advocates would wish, it is a step forward. INSA, in particular, raises the prospect that the Government might mark information a company provides to the Government as proprietary information, and that this could restrict the company’s future ability to use the information. However, the status of a company’s information as CUI (and the accompanying proprietary information markings) begin with a request from the company and its own identification of the information as something it believes is proprietary, it believes would damage the company if shared, and it requests the Government to protect on the company’s behalf. It doesn’t restrict the company’s own ability to use and share duplicates of that information in its own hands; it simply restricts the Government from doing so and establishes a basis for the Government to protect it from access by others (including other companies) without a lawful Government purpose.  Any decontrol request that comes from the company that shared the information carries immense weight in the decontrol decision. In addition, although a company indicates that certain information is proprietary and requests its protection when they submit it to the Government, the Government still must make its own assessment of the information to ensure it falls within the limited scope of the CUI authority allowing protection of such information, so companies aren’t able to use this as a mechanism for restricting access to all information they provide to the Government. If industry believes either of these aspects need to be further spelled out, we welcome a conversation on the subject.

On all aspects of the CUI program, we welcome conversations with industry. We acknowledge that the CUI Program may not yet be as standardized as we or industry wish. Implementation has just started in the past year at many agencies. Changing the entire executive branch on something this impactful resembles turning an aircraft carrier battle group. Each agency, like each ship in the battle group, has its own specs and experiences unique conditions. Even with all this variety in scope, scale, structure, working processes, and kinds of information, every agency outside the Intelligence Community is now turning in the same direction. Returning to the legacy, agency-specific FOUO/SBU practices of the past would be simply an unwise and unworkable option.

Regarding program costs, large cabinet agencies informally report to us that the implementation costs they have are in the six-figure range. Laws, Federal regulations, and Government-wide policies already required or permitted the information covered by CUI to be protected, so there isn’t much net change in cost, since the requirements were already there. The main difference is that, by bringing all these various protection requirements together into one framework, agencies are establishing a manager or staff to oversee them as a standardized program, they are conducting training on the concepts of CUI and how it works, and they are re-marking or newly marking information or spaces. These are the primary costs, and for most smaller- to medium-sized agencies they are fairly minimal, while they are in the six-figure range for the larger agencies. In addition, agencies are reporting that, standardization is now reducing unnecessary costs, as well, and it is helping the agencies realize the scope of what they were already protecting.

As to the scope of the CUI program, INSA raises, in a couple different ways, that CUI includes information types outside the national security sector, including pointing out that it also includes, for example, protecting information about historic properties. We recognize that we each see the problem from our own perspective and INSA’s members are part of the national security sector. But national security information is not the only kind of information the Federal Government is tasked with protecting – and was tasked with protecting long before the CUI program came about to create a standardized framework for doing so. The CUI program is entirely based on law, Federal regulations, and Government-wide policies that require agencies, or permit them, to protect the information described in those authorities. In doing the very identification of what information the Government is required or permitted to protect that INSA now recommends we do again, it became clear that the scope of information that existing laws, Federal regulations, and Government-wide policies require or permit to be protected is very large and, in the interests of standardizing, it was best to have a single system rather than the complexity of multiple systems.

The public can advocate, through the legislative and regulatory processes, whether certain information should be protected or not, and make changes to the underlying authorities. When those changes are made, they will be reflected on the CUI Registry and the scope of what information falls into CUI will change. But, at the same time, the non-national security information the Government already protects is not protected on a whim. Most people agree that most of the information protected is information that they would want protected. Each item the Government protects has immense impact, whether it is tax information, census information, patent information, peoples’ personal medical records or health information, huge amounts of other privacy information, or information about sites on which historic properties exist. In the national security sector, we place great importance on retrieving and protecting the bodies of our fallen. The historical properties, archeological resources, and national park system resources categories not only protect our natural and historical treasures from looting, but also protect grave site locations that tribal governments share with Federal agencies.

Yes, the task of creating a standard information protection and sharing system for all unclassified information the Federal Government protects is complex. That is a direct by-product of what existed prior to the CUI Program. Change takes institutional mechanisms and program structure that leads to increased standardization.  We are now far down that path with mechanisms and program structure in place creating their own momentum towards ever increasing standardization. Though there is much work still to be done, we are seeing throughout agency implementation continual movement towards standardization.

Transitioning to CUI: When Organizations are Moving at Different Paces

Moving the entire Executive branch to change course is similar to getting an aircraft carrier battle group to turn. Each component element has unique specs and circumstances, but they must function as a unified whole.

Not surprisingly as agencies move forward with their implementation, we are getting questions about the interaction between organizations that are at different stages of implementation.

The simple answer is:

  • Follow any specific requirements as needed and apply your agency’s existing policies and practices that are in effect at the time you are taking your action.

The more complex answer is:

  • If you and the organization you receive the information from have an information sharing agreement in place, then follow the information sharing agreement.
  • If no information sharing agreement governs the situation, then follow the best practices below.
    • If your agency has not yet implemented, but you receive CUI from an organization that has, then use your existing pre-CUI policies to safeguard according to the law, regulation, or government-wide policy that authorizes that CUI category.
    • If your agency has implemented, but receive CUI marked with Legacy Markings from an organization that has not yet implemented, then use your existing CUI policies to safeguard according to the law, regulation, or government-wide policy that authorizes that CUI category.

Please note that since all CUI categories are based on requirements in law, regulation, or government-wide policy, those authorities and their requirements existed prior to CUI implementation and must be followed regardless of CUI implementation status.

Reminder: CUI Marking Webex (Tomorrow)

CUI Marking Handbook Cover Image

We will be offering a CUI Marking fundamentals webex on   July 23, 2020 from 11 am – 1 pm (EDT). Participants will receive a completion certificate for attending the webex. In addition to providing an overview of the principles of marking in the unclassified environment, this class will provide an update on the CUI Program and its implementation among Executive Branch agencies. During this class we will discuss the new CUI Notices 2020-01 (CUI Program Implementation Deadlines) and CUI Notice 2020-02 (Alternative Marking Methods)

The conference begins at 11:00 AM Eastern Time on July 23, 2020; you may join the conference 10 minutes prior.

Step 1: Dial into the conference. Dial-in: 888-251-2949 or 215-861-0694 Access Code: 1399154# Need an international dial-in number?

Step 2: Join the conference on your computer. Entry Link:

When you access the entry link above, you will be provided a choice – to install the WebEx plug-in for your preferred browser or to join the web conference using a temporary path. Either option is acceptable.

Need assistance with your audio? Please dial 888-796-6118. Need assistance with your Webex? Please dial 888-793-6118.

***NOTE: You do NOT have to RSVP for this class, you may just dial in.***

July Marking class presentation

Optional Non-Disclosure Agreement Template issued

On June 3, 2020, ISOO issued CUI Notice 2020-03. This notice provides an optional Controlled Unclassified Information (CUI) non-disclosure agreement (NDA) template for executive branch agency use. Executive branch agencies may use the template when they determine that a CUI NDA is appropriate. The template is optional, and agencies can modify it if needed. A list of all CUI Notices can be found here

Using CUI while teleworking : Microphones and Cameras in Our Homes

When working with CUI, it is required you establish a controlled environment that will safeguard CUI.

This means not just using information systems that have the necessary safeguards in place, it also means being aware of the other potential risks to CUI such as the presence of microphones and cameras in our homes. The microphones and cameras on our computers and mobile devices (phones and tablets) could place CUI at risk.  If it is an electronic device it can be hacked, if it connects to the internet it can be hacked remotely. What level of safeguarding do you have on your devices with microphones and cameras?

Take a moment to think about how many internet connected microphones and cameras you have in your house.

Of course, we have our phones and computers, but what else are around?

Is the remote control to your TV voice controlled? What about your thermostat?

Do you have a voice activated personal assistant service?

How about devices other than your phone and computer that are voice activated and you can use WiFi to stream music on?

Some people even have appliances that are voice activated and connected to home WiFi, like refrigerators.

There are often more of these in our homes these days than we might realize at first glance.

Cyber criminals and foreign intelligence services know that with everyone at home they have rich and often less secured targets.

And it isn’t just these threats. If you read many application user agreements, they allow the application to collect data from device cameras and microphones even when the application isn’t in use.

These vary in how anonymized they are. Even if the user agreements say they are anonymized, there is a long history of business intelligence gathering to gain business advantage and contracts that were violated to obtain advantage.

To achieve a controlled environment it is important to be aware of your surroundings. If you have microphones in internet connected devices around, then take action to protect CUI. Keep conversations containing CUI to emails or other written communication on information systems that your agency approved to meet the requirements to handle CUI.

Though internet connected cameras are rare on anything other than phones, computers, baby monitors, and doorbells, if you have CUI on your computer screen or desk then make sure it isn’t visible to cameras on unsecured devices.

Some quick things you can do to make your home and devices more secure are:

  1. Make sure to change the default username and passwords for all internet connected devices .
  2. Make sure you update the firmware on your router, modem, and all connected devices regularly. Many of these updates are pushed out to address known security vulnerabilities. If you don’t know how, check the device website or call customer service.
  3. Turn off and unplug unused devices, consider disabling or covering cameras when not in use.
  4. Keep any security software or firewalls updated to the latest version.

There is a lot more you can do and some great information about how to do it found in the additional resources below:

Consult with your agency or organization’s security office if you have specific questions or concerns.

Using CUI while teleworking during Coronavirus social distancing common issues: Cohabitants

There is an increased potential for CUI to be overheard or observed with more people likely to be in the home.

Many people used to have the house to themselves while teleworking and now in many households’ spouses, kids, and housemates are home.

Even in homes with a room that can be used as an office, it might be a room shared by both spouses. In this situation, even if both spouses work for the government, one spouse may not have a lawful government purpose to have access to information the other spouse has access to. Special attention should be paid to dissemination controls, particularly FED ONLY, NOCON, DL ONLY, Attorney-Client, Attorney-WP, and Deliberative.

Other employees do not live in a home with even the option of an extra room to serve as an office. This might include a couple living in a studio apartment or just a very full house.

Some employees also might live with housemates that are not of their choosing because of financial constraints. Nearly all of us can think back to the days — at some point in our life — that we were in this situation.

So how do agencies and employees establish a controlled environment to effectively safeguard CUI when it is used during telework?

There are lots of deeply personal reasons an employee might have to make the judgment call they need to take extra precautions in order to achieve a controlled environment. Just to name a few examples: a kid who tells everything to their friends or random strangers they walk by, an untrustworthy roommate, a family member with mental illness, or a divorce in progress.

In most cases an employee will prefer not to go into these details with a supervisor, the same way they might be willing to say they “live in a studio apartment with a parakeet”…though some employees might not even be comfortable saying that. 

Though the personal situation can be generalized to protect employee personal privacy, there are three steps that should occur:

  1. the employee should notify their supervisor they feel a need to take extra precautions and what those precautions are,
  2. the employee acknowledges it is their responsibility to achieve a controlled environment that effectively safeguards the information and the supervisor recognizes that part of their own obligation to safeguard the information is to empower the employee with the work time and resources to do this,
  3. the agency provides supplemental training on the safeguarding needed to achieve a controlled environment is given before CUI is used.  

An employee knows their home environment best, so be a good listener when an employee says “I cannot talk about that now,” “Can I email you,” “I need to call you back about that,” etc.

Keeping the computer screen from being observed is a different set of challenges and depend greatly on the physical configuration of the work environment.

Different solutions will be right for different employees. Here a couple items supervisors might want to consider:

  • Providing flexible schedules (for example, to work at a time when others aren’t around)
  • Providing flexible range of assignments (so non-CUI work can be done if the environment changes)
  • Providing screen protectors (to limit the angles a computer screen is readable from)
  • Providing headphones (that can be used instead of speaker phones or laptop speakers; note: it remains the employee’s responsibility keep in mind people around them and be mindful of what information they are talking about)
  • Providing refresher training (particularly tailored to our new telework environment)

Employees also need to remember their obligation to report security and safeguarding incidents, even ones that happen at home. It is an essential security and safeguarding practice for agencies to foster a culture of self-reporting.

In addition, is a great resource to check out for additional information.

What are other solutions that you have found to be a best practice as we all adjust to teleworking with a full house? What topics would you suggest be included in refresher training about creating a controlled environment while teleworking with a full house?

”UNCLASSIFIED”, “(U)”, and “Unclassified”

  • “UNCLASSIFIED” in the banner marking indicates the absence of CUI and classified information.
  • “(U)” as a portion marking indicates the absence of CUI and classified information.
  • “Unclassified” when not used in a marking, indicates that the information being referred to is not classified, but does not indicate whether or not the information is controlled (CUI) or not.


Prior to the CUI Program, the term “unclassified” was used to describe information that did not meet the standards to be classified under Executive Order 13526. In classified environments, the banner marking of “UNCLASSIFIED” was placed at the top and bottom of pages to indicate the absence of classified information in documents. In portions of documents, a “(U)” indicated that a portion did not contain classified information.

In the absence of Government-wide guidance regarding the handling and marking of sensitive but unclassified information, Executive branch departments and agencies started applying additional indicators to convey the status of sensitive but unclassified information in classified documents. Markings such as “U//FOUO” and “U//LES” became commonly used in commingled documents (documents that contain both sensitive but unclassified, as well as classified information).

As agencies implement the CUI Program and modify marking standards to comply with those in 32 CFR Part 2002, the use of legacy markings, such as FOUO and LES, to describe sensitive but unclassified information will be phased out.

As part of this transition to the CUI Program, agencies should convey – through policy and training – that the term Unclassified (or Uncontrolled Unclassified Information, as described in 32 CFR Part 2002) refers to information that: is neither CUI nor classified, but is still subject to agency public release policies.

Reference: CUI Marking Handbook