Final NIST Guidance Addresses Protection Of Sensitive Data in Hands of Contractors

Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...

By Katie W. Johnson

June 26 — Final guidance (SP 800-171) from the National Institute of Standards and Technology on protecting sensitive federal information on nonfederal information systems “will prove important, perhaps profound, as the nation seeks to improve its cyber defenses,” an attorney who specializes in government contracts told Bloomberg BNA June 26.

The guidance addresses protecting “controlled unclassified information” (CUI) in nonfederal information systems and organizations, such as contractors, state and local governments and colleges and universities, according to a June 19 NIST statement. A 2010 executive order (Executive Order 13556 ) required that CUI be protected.

NIST developed the guidance in collaboration with the National Archives and Records Administration (NARA), which administers the CUI program.

“Together, the efforts of NARA and NIST inform anyone who receives, uses, hosts or transmits CUI on an information system what information they will be expected to protect and the basic cyber safeguards they can expect to be imposed,” Robert S. Metzger, a shareholder at Rogers Joseph O'Donnell PC in Washington, told Bloomberg BNA.

He said the existing lack of statutory or regulatory requirements concerning the protection of the confidentiality of federal CUI “places the many varieties of sensitive federal information at unacceptable risk.”

“Companies would be well advised—now—to evaluate whether they already have or use CUI and to consider the type of CUI and the nature of safeguards as expected by NARA and by 800-171,” Metzger said. “Companies that have existing cyber defense systems should evaluate whether and how they already conform to the objectives of 800-171; where there are gaps, they should work to find cost-effective means to close them.”

Guidance ‘Carefully Drafted.'

NIST first sought input on the draft guidance in November 2014, and it requested comments on a revised draft in April.

Metzger said the final guidance “was carefully drafted,” drawing upon the federal government's cybersecurity safeguards from Federal Information Processing Standard 200 “without imposing on contractors or other non-federal actors the specific cyber controls and enhancements that were developed by NIST for federal information systems.”

Those controls for federal information systems are set forth in NIST's “Security and Privacy Controls for Federal Information Systems and Organizations” (SP 800–53, Rev. 4).

Instead of imposing the specific requirements of SP 800–53, the new guidance provides objectives for performance, Metzger said.

“This is because NIST and NARA recognize and are encouraging persons that have CUI on non-federal information systems to assess their own controls and practices against the federal objectives—rather than attempting to force the federal methods upon non-federal systems,” he said.

According to Metzger, the next step is for either NARA or other federal agencies to provide solicitation requirements and contract clauses regarding contractors' obligation to use SP 800-171.

To contact the reporter on this story: Katie W. Johnson in Washington at

To contact the editor responsible for this story: Donald G. Aplin at

The final version of “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations” (SP 800-171) is available at

Request Bloomberg Law: Privacy & Data Security