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.