Federal Judges Reinventing the Jury Trial During Pandemic

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These days, the work of a U.S. district judge can seem a lot like “building an airplane while you’re flying it,” says Judge Karen K. Caldwell, one of the first federal judges to resume jury trials after the coronavirus (COVID-19) pandemic bloomed like ocean algae in the United States this past spring.

Caldwell, of the District of Eastern Kentucky, is among a group of judges around the country who are reinventing the jury trial so that it is not only a fair forum for the administration of justice, but also a safe experience for everyone in the courtroom, including defendants and jurors.

The effort has required judges and attorneys to rethink a trial at every stage, from the voir dire process of selecting a jury to the deliberations stage and the handing down of a verdict. Several judges interviewed for this series said they have found that trials can be conducted safely when following new, sometimes improvised protocols designed to protect health and safety.

In a new video from the Administrative Office of the U.S. Courts, two federal judges discuss the challenges of conducting jury trials during the pandemic. Judge James C. Dever III, of the Eastern District of North Carolina, and Chief Judge Barbara M.G. Lynn, of the Northern District of Texas, recently presided over criminal jury trials, deploying a battery of new safety measures in their courtrooms.

These protocols include reconfiguring courtrooms and jury deliberation spaces to allow at least six-feet of social distancing by participants, the liberal use of masks or transparent face shields or both, the strategic placement of plexiglass barriers, vetting prospective jurors for health vulnerabilities or fears of exposing loved ones, reliance on technology to present evidence, and the constant cleaning of furniture and surfaces.

“Every day we evaluated and reevaluated our processes, and made adjustments throughout the trial,” said Judge Caldwell, who presided over an eight-week drug trafficking trial in April. “Every judge has to do it differently, depending on how busy it is in the courthouse, how bad the virus is in the community, and whether there are any active cases in the courthouse. There are so many variables, you could never come up with a plan that fits for everyone. But we trial judges are very adept at having to adapt and modify a plan on short notice. This is just another one of those situations, although on steroids.”

Judge James C. Dever III, of the Eastern District of North Carolina, decided to go forward with two separate jury trials in May after determining they could be conducted safely. The defendants in each case had pleaded not guilty and both wanted their day in court. Dever and other judges are acutely aware of the right to a speedy trial guaranteed by law and by the Constitution.

“There is no pandemic exception in the Constitution,” Judge Dever said. “And the Constitution has stood the test of time for more than 230 years.”

Charity Wilson, an assistant U.S. attorney who prosecuted one of the cases, said she too wanted to move forward and felt it could be done safely, given the adjustments Judge Dever made to impose social distancing and other safety precautions. For example, she said, during voir dire, the judge made it clear that anyone who felt uncomfortable could be excused from serving.

“At some point, you have to try these cases,” Wilson said. “When defendants are saying they are not guilty, the burden is on the government to prove the charges.”

Courts resuming jury trials generally tend to be located in parts of the country where coronavirus numbers are trending downward. Many courts located in “hot spots” continue to delay jury trials out of concern about exacerbating outbreaks. The federal court in the Southern District of Florida has issued an order delaying the restart of jury trials until next year, while courts in Colorado, Arizona, Northern Georgia, and Northern and Central California have postponed them until the fall. 

The hands-on experiences of judges who’ve tried cases so far have mitigated one of the biggest concerns among judges and attorneys – that the fear of getting sick would make it impossible to empanel juries reflective of their communities. In the United States, criminal defendants have a right to a jury that is impartial and representative of a cross-section of the community.

COVID-19 has had a disproportionate impact on African Americans, Hispanics, and older Americans. That fact was on Chief Judge Barbara M.G. Lynn’s mind when she began planning for the first pandemic-era jury trial in the Northern District of Texas. Along with the typical questionnaire, she sent prospective jurors a letter that explained the safety measures the court was taking and a form for them to list valid reasons to be excused, such as a job in health care or another essential industry or being in a health or age-related risk category for COVID-19.  

During jury selection, she brought in small groups of people, rather than one large group, to make it easier to maintain distancing. And she conducted the sessions with the attorneys on the first floor of the courthouse, eliminating the need for participants to be confined in elevators.

“They could see the seriousness with which we were taking this,” Judge Lynn said. “I was wearing a face shield, as were some of the lawyers. Others were wearing masks. We were all seated in the front of the room behind plexiglass. And (the prospective jurors) were checked in by a person behind plexiglass.”

Only one person opted out at that point, a woman who said she was concerned about bringing the virus home to an elderly parent. The jury that was ultimately seated included five African Americans, two Hispanic citizens, and people of varying ages. “So it was quite a representative jury,” Lynn said.

After the trial, she shared with other federal courts her playbook describing the steps she took to conduct a successful trial, after which no one fell ill with COVID-19. Federal judges also now have at their fingertips a new guide published by a group of judges working with staff from the Administrative Office of the U.S. Courts. It’s called Conducting Jury Trials and Convening Grand Juries During the Pandemic.

Read the Series

This is the second in a series of articles about how federal courts are working to recover from the COVID-19 crisis.

Next in this series: Courts finding ways to keep jurors safe.

Innovation was a key element in Judge B. Lynn Winmill’s toolbox when he decided to conduct one of the first pandemic-era trials in Idaho. His court hired an epidemiologist to evaluate the measures put in place to prevent the spread of the virus. On the expert’s recommendation, the court adjusted the air circulation system so that every hour, the courtroom was replenished with 100 percent fresh air from the outdoors rather than a mix of fresh air and recycled indoor air.

“I think we made some pretty extraordinary efforts,” Judge Winmill said. “It wasn’t perfect, but it worked.”

Yet as more courts gradually consider restarting jury trials, challenges remain. Judges, attorneys, and others in the legal profession continue to debate whether jurors in masks present disadvantages to lawyers on both sides who pride themselves on reading facial expressions. Some courts remain unconvinced that multiple-defendant cases can go to trial safely because of the difficulty imposing social-distancing on a large group of defendants, family members, lawyers, and members of the media. There is also the question of how to keep people safe when courthouses are fully reopened to the public and trials are taking place concurrently, bringing more people together at once in indoor spaces.

“It’s a period of trial and error,” said Tony Gallagher, executive director of Federal Defenders of Montana. “We’ve all been involved in the planning process, changing procedures and protocols where necessary – our district COVID-19 committee, the GSA, the marshals, the defenders, the assistant U.S. attorneys, the judges, and the clerks. I don’t know what more our court could do other than somehow find a cure for COVID-19.”

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  • Medicaid Information Technology: Effective CMS Oversight and States’ Sharing of Claims Processing and Information Retrieval Systems Can Reduce Costs
    In U.S GAO News
    The Centers for Medicare and Medicaid Services (CMS) has reimbursed billions of dollars to states for the development, operation, and maintenance of claims processing and information retrieval systems—the Medicaid Management Information Systems (MMIS) and Eligibility and Enrollment (E&E) systems. Specifically, from fiscal year 2008 through fiscal year 2018, states spent a total of $44.1 billion on their MMIS and E&E systems. CMS reimbursed the states $34.3 billion of that total amount (see figure). Money Spent by States and Reimbursed by CMS from 2008–2018 for Medicaid Management Information Systems (MMIS) and Eligibility and Enrollment (E&E) Systems For fiscal years 2016 through 2018, CMS approved 93 percent and disapproved 0.4 percent of MMIS funding requests, while for E&E it approved 81 percent and disapproved 1 percent of the requests. The remaining 6.6 percent of MMIS requests and 18 percent of E&E requests were either withdrawn by states or were pending. GAO estimates that CMS had some level of supporting evidence of its review for about 74 percent of MMIS requests and about 99 percent of E&E requests. However, GAO estimates that about 100 percent of E&E requests and 68 percent of MMIS requests lacked pertinent information that would be essential for indicating that a complete review had been performed. Among CMS requirements for system implementation funding is that states submit an alternatives analysis, feasibility study, and cost benefit analysis. However, GAO found that about 45 percent of such requests it sampled for fiscal years 2016 through 2018 did not include these required documents. The above weaknesses were due, in part, to a lack of formal, documented procedures for reviewing state funding requests. CMS also lacked a risk-based process for overseeing systems after federal funds were provided. CMS provided helpful comments and recommendations to states in selected cases, but in other instances it did not. In two states that had contractors struggling to deliver successful projects, state officials said they had not received recommendations or technical assistance from CMS. The states eventually terminated the projects after spending a combined $38.5 million in federal funds. According to CMS officials, they rely largely on states to oversee systems projects. This perspective is consistent with a 2018 Office of Management and Budget (OMB) decision that federal information technology (IT) grants totaling about $9 billion annually would no longer be tracked on OMB's public web site on IT investment performance. Accordingly, the CMS and Health and Human Services chief information officers (CIO) are not involved in overseeing MMIS or E&E projects. Similarly, 21 of 47 states responding to GAO's survey reported that their state CIO had little or no involvement in overseeing their MMISs. Such non-involvement of officials with duties that should be heavily focused on successful acquisition and operation of IT projects could be hindering states' ability to effectively implement systems. To improve oversight, CMS has begun a new outcome-based initiative that focuses the agency's review of state funding requests on the successful achievement of business outcomes. However, as of February 2020, CMS had not yet established a timeline for including MMIS and E&E systems in the new outcome-based process. CMS had various initiatives aimed at reducing duplication of Medicaid systems (see table). Description and Status of Centers for Medicare and Medicaid Services Initiatives Aimed at Reducing Duplication by Sharing, Leveraging, and Reusing Medicaid Information Technology Initiative Description Implementation status Number of surveyed states reporting use of the initiative Reuse Repository Used by states to collect and share reusable artifacts. Made available in August 2017. As of January 2020, CMS was no longer supporting this initiative. 25 of the 50 reporting states Poplin Project Was to provide free, open-source application program interfaces for states to use in developing their modular Medicaid systems. Initiative never fully implemented. As of January 2020, CMS was no longer supporting this initiative. Three of the 50 reporting states Open Source Provider Screening Module Open-source module for states to use at no charge. Made available in August 2018. As of January 2020, CMS was no longer supporting this initiative. One of the 50 states reported attempting to use the module. Medicaid Enterprise Cohort Meetings A forum where states can discuss sharing, leveraging, and/or reuse of Medicaid technologies. As of January 2020, Cohort meetings were being held on a monthly basis. 47 of the 50 states reported participating in the meetings. Source: GAO analysis of agency data. | GAO-20-179 However, as of January 2020, the agency was no longer supporting most of these initiatives because they failed to produce the desired results. CMS regulations and GAO's prior work have highlighted the importance of reducing duplication by sharing and reusing Medicaid IT. To illustrate the potential for reducing duplication, 53 percent of state Medicaid officials responding to our survey reported using the same contractor to develop their MMIS. Nevertheless, selected states are taking the initiative to share systems or modules. Further support by CMS could result in additional sharing initiatives and potential cost savings. The Medicaid program is the largest source of health care funding for America's most at-risk populations and is funded jointly by states and the federal government. GAO was asked to assess CMS's oversight of federal expenditures for MMIS and E&E systems used for Medicaid. This report examines (1) the amount of federal funds that CMS has provided to state Medicaid programs to support MMIS and E&E systems, (2) the extent to which CMS reviews and approves states' funding requests for the systems and oversees the use of these funds, and (3) CMS's and states' efforts to reduce potential duplication of Medicaid IT systems. GAO assessed information related to MMIS and E&E systems, such as state expenditure data, federal regulations, and CMS guidance to the states for submitting funding requests, states' system funding requests, and IT project management documents. GAO also evaluated a generalizable sample of approved state funding requests from fiscal years 2016 through 2018 to analyze, among other things, CMS's review and approval process and conducted interviews with agency and state Medicaid officials. GAO also reviewed relevant regulations and guidance on promoting, sharing, and reusing MMIS and E&E technologies; and surveyed 50 states and six territories (hereafter referred to as states) regarding the MMIS and E&E systems, and assessed the complete or partial responses received from 50 states. GAO is making nine recommendations to improve CMS's processes for approving and overseeing the federal funds for MMIS and E&E systems and for bolstering efforts to reduce potential duplication. Among these recommendations are that CMS should develop formal, documented procedures that include specific steps to be taken in the advanced planning document review process and instructions on how CMS will document the reviews; develop, in consultation with the HHS and CMS CIOs, a documented, comprehensive, and risk-based process for how CMS will select IT projects for technical assistance and provide recommendations to assist states that is aimed at improving the performance of the systems; encourage state Medicaid program officials to consider involving state CIOs in overseeing Medicaid IT projects; establish a timeline for implementing the outcome-based certification process for MMIS and E&E systems; and identify, prior to approving funding for systems, similar projects that other states are pursuing so that opportunities to share, leverage, or reuse systems or system modules are considered. In written comments on a draft of this report, the department concurred with eight of the nine recommendations, and described steps it had taken and/or planned to take to address them. The department did not state whether it concurred with GAO's recommendation to encourage state officials to consider involving state CIOs in Medicaid IT projects. HHS stated that it was unable to discern evidence as to whether a certain structure contributed to a specific outcome. GAO believes, consistent with federal law, that CIOs are critically important to the success of IT projects. For more information, contact Vijay D’Souza at (202) 512-6240 or dsouzav@gao.gov.
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    In 2019, the number of women on the boards of directors at Fannie Mae and Freddie Mac—two government-sponsored enterprises (enterprises)—were five and three, respectively, slightly higher than in 2011. Female directors held leadership positions on the enterprises' boards for the first time in 2019, serving as vice chair at Fannie Mae and chair at Freddie Mac. The percentage of women in senior management positions remained relatively consistent for 2011 and 2018, while minority representation was higher in 2018 than in 2011 (see figure). The enterprises have implemented leading practices to support workforce diversity, such as career and networking events to recruit diverse populations and employee mentorship programs. Share of Women and Minorities in Senior Management at Fannie Mae and Freddie Mac, 2011 and 2018 Note: Percentages may not add to 100 due to rounding. Fannie Mae and Freddie Mac used diverse broker-dealers (such as minority- and women-owned) for financial transactions to a limited extent. In 2019, Fannie Mae and Freddie Mac both paid about 6 percent of their financial transaction fees to diverse broker-dealers. The enterprises have taken steps to work with diverse broker-dealers more often, such as by lowering some capital requirements to allow participation by typically smaller, less-capitalized diverse broker-dealers. Broker-dealer representatives GAO interviewed said that enterprises had taken steps to increase their participation. However, some representatives noted that additional performance feedback and data on how they compare to larger firms would help them understand what business areas they could improve to meet standards for handling additional, more complex products. The enterprises said that some of the information on other firms is proprietary. In 2017, the Federal Housing Finance Agency (FHFA) began reviewing the diversity and inclusion efforts of Fannie Mae and Freddie Mac as part of its annual examinations of the enterprises. In 2017, FHFA found the enterprises generally took steps to promote diversity and inclusion but made recommendations to improve both enterprises' programs. In response, the enterprises have directed more attention and resources to diversity efforts. FHFA officials told GAO the agency planned to review the diversity and inclusion of the enterprises' financial transactions in late 2020 and would update its examination manual to include a focus on activities in this area. Fannie Mae and Freddie Mac are government-sponsored enterprises regulated by FHFA that buy and pool mortgages into mortgage-backed securities. The Housing and Economic Recovery Act of 2008 requires the enterprises to promote diversity and inclusion in employment and related activities. GAO was asked to review the enterprises' diversity and inclusion efforts. This report examines, among other things, (1) trends in the diversity of the enterprises' boards and senior management; (2) the extent to which the enterprises used diverse broker-dealers and implemented practices to promote more diversity; and (3) FHFA oversight of the enterprises' diversity and inclusion efforts. To conduct this work, GAO analyzed enterprise and Equal Employment Opportunity Commission data on the enterprises' workforces, boards, and broker-dealers; and reviewed FHFA and enterprise policies and regulations and previous GAO reports on these issues. GAO also interviewed FHFA and enterprise staff and a nongeneralizable sample of external stakeholders knowledgeable about broker-dealer diversity. For more information, contact Michael E. Clements at (202) 512-8678 or ClementsM@gao.gov.
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    GAO's previous work has shown that a number of opportunities exist for the Department of Defense (DOD) to strengthen management of defense spending, which would help the department address the challenges it faces, especially in a constrained budget environment. These opportunities include: Improving budgeting execution of funds. DOD does not fully obligate the funds appropriated to it and can improve both its budgeting for and its use of the resources that are provided to it. For example, GAO found that DOD has left billions of dollars in appropriated amounts unspent over the past 10 fiscal years. Better estimating annual budget requirements and obligating appropriations provided by Congress within the period of availability established by Congress would help DOD minimize these cases of under-execution. More clearly determining future resource requirements related to overseas contingency operations. DOD and Congress need a clearer determination of DOD's future resource requirements, in particular how and whether to incorporate enduring Overseas Contingency Operations (OCO) costs—costs that will endure beyond ongoing contingency operations—into DOD's base budget. These costs could total tens of billions of dollars a year. However, few details exist as to what makes up these enduring costs or how they were derived, raising questions about how much should be included as future requirements. Reducing improper payments. Addressing improper payments—payments that should not have been made or were made in an incorrect amount—is an area where better financial management could save DOD billions of dollars. In its fiscal year 2020 agency financial report, DOD estimated that it paid about $11.4 billion in improper payments, or about 1.7 percent of all payments it made that year. DOD has taken steps to reduce improper payments in some areas, but DOD's estimates of its improper payments in other areas indicate more remains to be done. Sustaining and refining department-wide business reform efforts. DOD must transform its overall business operations so that it can more efficiently and effectively use its resources. In recent years, DOD reported notable achievements from its most recent department-wide business reform efforts, including $37 billion in savings from fiscal years 2017 to 2021 as a result of these efforts. However, GAO previously found that while DOD's reported savings were largely reflected in its budget materials, the analyses underlying these estimates were not always well documented and the savings were not always the result of business reform. Moreover, uncertainty about the leadership structure at DOD for overseeing and reforming business operations, including the recent elimination of the Chief Management Officer position, calls into question whether efforts to fundamentally transform how the department does business can be realized and sustained. GAO has previously highlighted the importance of DOD providing clear department-wide guidance on roles, responsibilities, authorities, and resources for business reform efforts will be necessary for DOD to make progress in these efforts. Decisions by DOD and Congress regarding long-term defense needs will have a meaningful impact on the nation's fiscal future. As the single largest category of discretionary spending, defense spending is likely to play a large role in any discussion of future federal spending. GAO and others have found that DOD faces challenges that are likely to put pressure on its budget moving forward. DOD is the only major federal agency that has been unable to receive a clean audit opinion on its financial statements. This testimony provides information on how DOD can better manage defense spending, specifically related to its ability to (1) accurately estimate its budgetary requirements and execute its appropriated funds, (2) determine resource requirements related to overseas contingency operations, (3) reduce improper payments, and (4) sustain and refine department-wide reform efforts. For this testimony, GAO reviewed and summarized its recent work on DOD budget and financial management issues and departmental reform efforts. In prior work on which this testimony is based, GAO made recommendations that DOD take steps to better estimate its annual budget requirements and future fiscal needs for OCO, reduce improper payments, and refine and formalize its departmental reform efforts. DOD generally concurred with these recommendations and is working toward implementing them. For more information, contact Elizabeth A. Field at (202) 512-2775 or fielde1@gao.gov.
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    In U.S GAO News
    In 1996 Congress provided DOD with authorities enabling it to obtain private-sector financing and management to repair, renovate, construct, and operate military housing. DOD has since privatized about 99 percent of its domestic housing. The Department of Defense (DOD) has made progress in addressing weaknesses in its privatized housing program, and GAO has identified additional opportunities to strengthen the program. GAO reported in March 2020 on DOD's oversight and its role in the management of privatized housing. Specifically, GAO found that 1) the military departments conducted some oversight of the physical condition of privatized housing, but some efforts were limited in scope; 2) the military departments used performance metrics to monitor private developers, but the metrics did not provide meaningful information on the condition of housing; 3) the military departments and private developers collected maintenance data on homes, but these data were not captured reliably or consistently, and 4) DOD provided reports to Congress on the status of privatized housing, but some data in these reports were unreliable, leading to misleading results. GAO made 12 recommendations, including that DOD take steps to improve housing condition oversight, performance indicators, maintenance data, and resident satisfaction reporting. DOD generally concurred with the recommendations. As of February 2021, DOD fully implemented 5 recommendations and partially implemented 7 recommendations. DOD should also take action to improve the process for setting basic allowance for housing (BAH)—a key source of revenue for privatized housing projects. In January 2021, GAO reported on DOD's process to determine BAH. GAO found that DOD has not always collected rental data on the minimum number of rental units needed to estimate the total housing cost for certain locations and housing types. Until DOD develops ways to increase its sample size, it will risk providing housing cost compensation that does not accurately represent the cost of suitable housing for servicemembers. GAO recommended that DOD review its methodology to increase sample sizes. GAO has also determined, in a report to be issued this week, that DOD should improve oversight of privatized housing property insurance and natural disaster recovery. GAO assessed the extent to which the military departments and the Office of the Secretary of Defense exercise oversight of their projects' insurance coverage. GAO found that the military departments have exercised insufficient oversight, and that the Office of the Secretary of Defense has not regularly monitored the military departments' implementation of insurance requirements. Without establishing procedures for timely and documented reviews, the military departments cannot be assured that the projects are complying with insurance requirements and assuming a proper balance of risk and cost. The draft of this report, which GAO provided to DOD for official comment, included 9 recommendations, 2 of which DOD addressed in January 2021 by issuing policy updates. The final report's 7 remaining recommendations, including that the military departments update their respective insurance review oversight procedures, will help strengthen DOD's oversight of privatized housing, once implemented. DOD concurred with all of the recommendations. Congress enacted the Military Housing Privatization Initiative (MHPI) in 1996 to improve the quality of housing for servicemembers. DOD is responsible for general oversight of privatized housing projects. Private-sector developers are responsible for the ownership, construction, renovation, maintenance, and repair of about 99 percent of military housing in the United States. GAO has conducted a series of reviews of MHPI, following reports of hazards (such as mold) in homes, questions about DOD's process to determine the basic allowance for housing rates, which is a key revenue source for privatized housing, and concerns about how DOD ensures appropriate property insurance for privatized housing projects impacted by severe weather. This statement summarizes 1) steps DOD has taken to strengthen oversight and management of its privatized housing program, and work remaining; 2) actions needed to improve DOD's BAH process; and 3) actions needed to enhance DOD's oversight of privatized housing property insurance. The statement summarizes two of GAO's prior reports, and a report to be issued, related to privatized housing. For this statement, GAO reviewed prior reports, collected information on recommendation implementation, and interviewed DOD officials. In prior reports, GAO recommended that DOD improve oversight of housing conditions; review its process for determining basic allowance for housing rates; and that the military departments update their housing insurance review oversight procedures. For more information, contact Elizabeth A. Field at (202) 512-2775 or fielde1@gao.gov.
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    In U.S GAO News
    Few of the 23 civilian Chief Financial Officers Act agencies had implemented seven selected foundational practices for managing information and communications technology (ICT) supply chain risks. Supply chain risk management (SCRM) is the process of identifying, assessing, and mitigating the risks associated with the global and distributed nature of ICT product and service supply chains. Many of the manufacturing inputs for these ICT products and services originate from a variety of sources throughout the world. (See figure 1.) Figure 1: Examples of Locations of Manufacturers or Suppliers of Information and Communications Technology Products and Services None of the 23 agencies fully implemented all of the SCRM practices and 14 of the 23 agencies had not implemented any of the practices. The practice with the highest rate of implementation was implemented by only six agencies. Conversely, none of the other practices were implemented by more than three agencies. Moreover, one practice had not been implemented by any of the agencies. (See figure 2.) Figure 2: Extent to Which the 23 Civilian Chief Financial Officers Act Agencies Implemented Information and Communications Technology (ICT) Supply Chain Risk Management (SCRM) Practices As a result of these weaknesses, these agencies are at a greater risk that malicious actors could exploit vulnerabilities in the ICT supply chain causing disruption to mission operations, harm to individuals, or theft of intellectual property. For example, without establishing executive oversight of SCRM activities, agencies are limited in their ability to make risk decisions across the organization about how to most effectively secure their ICT product and service supply chains. Moreover, agencies lack the ability to understand and manage risk and reduce the likelihood that adverse events will occur without reasonable visibility and traceability into supply chains. Officials from the 23 agencies cited various factors that limited their implementation of the foundational practices for managing supply chain risks. The most commonly cited factor was the lack of federal SCRM guidance. For example, several agencies reported that they were waiting for federal guidance to be issued from the Federal Acquisition Security Council—a cross-agency group responsible for providing direction and guidance to executive agencies to reduce their supply chain risks—before implementing one or more of the foundational practices. According to Office of Management and Budget (OMB) officials, the council expects to complete this effort by December 2020. While the additional direction and guidance from the council could further assist agencies with the implementation of these practices, federal agencies currently have guidance to assist with managing their ICT supply chain risks. Specifically, the National Institute of Standards and Technology (NIST) issued ICT SCRM-specific guidance in 2015 and OMB has required agencies to implement ICT SCRM since 2016. Until agencies implement all of the foundational ICT SCRM practices, they will be limited in their ability to address supply chain risks across their organizations effectively. Federal agencies rely extensively on ICT products and services (e.g., computing systems, software, and networks) to carry out their operations. However, agencies face numerous ICT supply chain risks, including threats posed by counterfeiters who may exploit vulnerabilities in the supply chain and, thus, compromise the confidentiality, integrity, or availability of an organization's systems and the information they contain. For example, in September 2019, the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency reported that federal agencies faced approximately 180 different ICT supply chain-related threats. To address threats such as these, agencies must make risk-based ICT supply chain decisions about how to secure their systems. GAO was asked to conduct a review of federal agencies' ICT SCRM practices. The specific objective was to determine the extent to which federal agencies have implemented foundational ICT SCRM practices. To do so, GAO identified seven practices from NIST guidance that are foundational for an organization-wide approach to ICT SCRM and compared them to policies, procedures, and other documentation from the 23 civilian Chief Financial Officers Act agencies. This is a public version of a sensitive report that GAO issued in October 2020. Information that agencies deemed sensitive was omitted and GAO substituted numeric identifiers that were randomly assigned for the names of the agencies due to sensitivity concerns. The foundational practices comprising ICT SCRM are: establishing executive oversight of ICT activities, including designating responsibility for leading agency-wide SCRM activities; developing an agency-wide ICT SCRM strategy for providing the organizational context in which risk-based decisions will be made; establishing an approach to identify and document agency ICT supply chain(s); establishing a process to conduct agency-wide assessments of ICT supply chain risks that identify, aggregate, and prioritize ICT supply chain risks that are present across the organization; establishing a process to conduct a SCRM review of a potential supplier that may include reviews of the processes used by suppliers to design, develop, test, implement, verify, deliver, and support ICT products and services; developing organizational ICT SCRM requirements for suppliers to ensure that suppliers are adequately addressing risks associated with ICT products and services; and developing organizational procedures to detect counterfeit and compromised ICT products prior to their deployment. GAO also interviewed relevant agency officials. In the sensitive report, GAO made a total of 145 recommendations to the 23 agencies to fully implement foundational practices in their organization-wide approaches to ICT SCRM. Of the 23 agencies, 17 agreed with all of the recommendations made to them; two agencies agreed with most, but not all of the recommendations; one agency disagreed with all of the recommendations; two agencies neither agreed nor disagreed with the recommendations, but stated they would address them; and one agency had no comments. GAO continues to believe that all of the recommendations are warranted, as discussed in the sensitive report. For more information, contact Carol C. Harris at (202) 512-4456 or harrisCC@gao.gov.
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