The statement comes after FedScoop reported Thursday that the DOJ disclosed in its public inventory of AI use cases that the FBI was initiating use of Rekognition as part of something called “Project Tyr.” The disclosure is significant because Amazon had previously extended a moratorium on police use of Rekognition, though the company did not originally clarify how that moratorium might apply to federal law enforcement. 

In an emailed response to FedScoop, Amazon spokesperson Duncan Neasham said: “We imposed a moratorium on police departments’ use of Amazon Rekognition’s face comparison feature in connection with criminal investigations in June 2020, and to suggest we have relaxed this moratorium is false. Rekognition is an image and video analysis service that has many non-facial analysis and comparison features. Nothing in the Department of Justice’s disclosure indicates the FBI is violating the moratorium in any way.”

According to Amazon’s terms of service, the company placed a moratorium on the “use of Amazon Rekognition’s face comparison feature by police departments in connection with criminal investigations. This moratorium does not apply to use of Amazon Rekognition’s face comparison feature to help identify or locate missing persons.”

The company’s public statement about its one-year moratorium in 2020, which was reportedly extended indefinitely, stated that it applied to “police use of Rekognition.” That statement did not specifically call out the “face comparison feature” or use of the tool related to criminal investigations.

Neasham further stated on Friday that Amazon believes “governments should put in place regulations to govern the ethical use of facial recognition technology, and we are ready to help them design appropriate rules, if requested.”

The description of the use case in DOJ’s AI inventory doesn’t mention the term “facial recognition,” but it states that the agency is working on customizing the tool to “review and identify items containing nudity, weapons, explosives, and other identifying information.” Neither Amazon nor the DOJ have clarified FedScoop questions about whether the FBI had access to facial recognition technology through this work.

Civil liberties advocates told FedScoop that the use case surprised them, given Amazon’s previous statements on facial recognition, Rekognition, and police.

“After immense public pressure, Amazon committed to not providing a face recognition product to law enforcement, and so any provision of Rekognition to DOJ would raise serious questions about whether Amazon has broken that promise and engaged in deception,” American Civil Liberties Union of Northern California attorney Matt Cagle said in a Thursday statement to FedScoop.  

DOJ spokesperson Wyn Hornbuckle did not address several aspects of the project but provided a statement pointing to the agency’s creation of an Emerging Technologies Board to “coordinate and govern AI and other emerging technology issues across the Department.” The FBI declined to comment through the DOJ.

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In response to questions from FedScoop, neither Amazon nor the DOJ clarified whether the FBI had access to or is using facial recognition technology, specifically, through this work. But the disclosure is notable, given that Amazon had previously announced a moratorium on police use of Rekognition.

An AI inventory released on the DOJ website discloses that the FBI has a project named “Amazon Rekognition – AWS – Project Tyr.” The description does not mention the term “facial recognition” but states that the agency is working on customizing the tool to “review and identify items containing nudity, weapons, explosives, and other identifying information.” 

“Amazon Rekognition offers pre-trained and customizable computer vision (CV) capabilities to extract information and insights from lawfully acquired images and videos,” states a summary of the use case that echoes the Amazon website’s description of the product. In regard to developer information, the disclosure says the system was commercial and off-the-shelf, and that it was purchased pre-built from a third party.

Other aspects of the project have not yet been finalized, according to the inventory. The disclosure says that in collaboration with Amazon Web Services, the agency will determine where the training data originates, whether the source code is made publicly available, and what specific AI techniques were used. The DOJ states that the agency is not able to conduct ongoing testing of the code but can perform audits. The justice agency also claims the use case is consistent with Executive Order 13960, a Trump-era order on artificial intelligence. 

“To ensure the Department remains alert to the opportunities and the attendant risks posed by artificial intelligence (AI) and other emerging technologies, the Deputy Attorney General recently established the Emerging Technologies Board to coordinate and govern AI and other emerging technology issues across the Department,” DOJ spokesperson Wyn Hornbuckle said in response to a series of questions from FedScoop about the use case.

He added: “The board will advance the use of AI and other emerging technologies in a manner that is lawful and respectful of our nation’s values, performance-driven, reliable and effective, safe and resilient, and that will promote information sharing and best practices, monitor taskings and progress on the department’s AI strategy, support interagency coordination, and provide regular updates to leadership.” 

The DOJ did not address several aspects of the work with Amazon, including questions about whether the FBI had put any limits on the use of its technology, the purpose of nudity detection, or the extent to which the law enforcement agency could access facial recognition through the work discussed in the disclosure. Through the DOJ, the FBI declined to comment. 

Amazon was given 24 hours to comment on a series of questions sent from FedScoop but did not respond by the time of publication. A day later, Amazon spokesperson Duncan Neasham emailed FedScoop the following statement:

“We imposed a moratorium on police departments’ use of Amazon Rekognition’s face comparison feature in connection with criminal investigations in June 2020, and to suggest we have relaxed this moratorium is false. Rekognition is an image and video analysis service that has many non-facial analysis and comparison features. Nothing in the Department of Justice’s disclosure indicates the FBI is violating the moratorium in any way.”

The tool was not disclosed in an earlier version of the DOJ’s AI inventory. While it’s not clear when the inventory was updated, a consolidated list of federal AI uses posted to AI.gov in September didn’t include the disclosure. The source date of the DOJ page appears to be incorrect and tags the page to October 2013, though the executive order requiring inventories wasn’t signed by President Donald Trump until late 2020. 

A page on Amazon’s website featuring the Rekognition technology highlights the tool’s applications in “face liveness,” “face compare and search,” and “face detection and analysis,” as well as applications such as “content moderation,” “custom labels,” and “celebrity recognition.” 

Beyond the application examples listed in the inventory, the DOJ did not explain the extent to which the FBI could or would use facial recognition as part of this work. Amazon previously told other media outlets that its moratorium on providing facial recognition to police had been extended indefinitely, though it’s not clear how Amazon interprets that moratorium for federal law enforcement. Notably, Amazon’s website has guidance for public safety uses.

But others have raised concerns about the technology. In 2019, a group of researchers called on Amazon to stop selling Rekognition to law enforcement following the release of a study by AI experts Inioluwa Deborah Raji and Joy Buolamwini that found that an August 2018 version of the technology had “much higher error rates while classifying the gender of darker skinned women than lighter skinned men,” according to the letter. 

Amazon had previously pushed back on those findings and has defended its technology. The National Institute of Standards and Technology confirmed that Amazon has not voluntarily submitted its algorithms for study by the agency. 

“Often times companies like Amazon provide AI services that analyze faces in a number of ways offering features like labeling the gender or providing identification services,” Buolamwini wrote in an early 2019 blog post. “All of these systems regardless of what you call them need to be continuously checked for harmful bias.”

The company has argued in a corporate blog defending its technology that the “mere existence of false positives doesn’t mean facial recognition is flawed. Rather, it emphasizes the need to follow best practices, such as setting a reasonable similarity threshold that correlates with the given use case.” 

The DOJ’s disclosure is also notable because, in the wake of George Floyd’s murder in 2020 — and following an extensive and pre-existing movement against the technology — Amazon said it would implement a one-year pause on providing Rekognition to police. In 2021, the company extended that moratorium indefinitely, according to multiple reports. Originally, Amazon said the moratorium was meant to give Congress time to pass regulation of the technology. 

“It would be a potential civil rights nightmare if the Department of Justice was indeed using Amazon’s facial recognition technology ‘Rekognition,’” Matt Cagle, a senior staff attorney at the American Civil Liberties Union of Northern California, said in a written statement to FedScoop, pointing to the racial bias issues with facial recognition. “After immense public pressure, Amazon committed to not providing a face recognition product to law enforcement, and so any provision of Rekognition to DOJ would raise serious questions about whether Amazon has broken that promise and engaged in deception.”

A 2018 test of Rekognition’s facial recognition capabilities by the ACLU incorrectly matched 28 members of Congress with mugshots. Those members were “disproportionately people of color,” according to the ACLU. 

The DOJ inventory update noting the use of the Amazon tool was “informative, but in some ways surprising,” said Caitlin Seeley George, the director of campaigns and operations at the digital rights group Fight for the Future, because “we haven’t seen specific examples of FBI using Amazon Rekognition in recent years and because Amazon has said and has continued to say that they will not sell their facial recognition technology to law enforcement.” 

“This is the problem with trusting a company like Amazon — or honestly any company — that’s selling this technology,” she added. “Not only could they change their mind at any point, but they can decide the barriers of what their word means and if and how they’re willing to make adjustments to what they have said that they would or wouldn’t do with their product and who they will or won’t sell it to.”

Ben Winters, senior counsel for the Electronic Privacy Information Center, said that “it feels like a weird time to be adopting this big, sensitive type system,” noting that once the technology is there, it’s “more entrenched.” He pointed to the recent executive order on AI and draft guidance for rights-impacting AI that’s due to be finalized by the Office of Management and Budget. 

A NextGov story from 2019 reported that the FBI was piloting Rekognition facial matching software for the purpose of mining through video surveillance footage. According to that story, the pilot started in 2018, though the DOJ did not address a FedScoop question about what happened to it or if it’s the same project discussed in the updated AI inventory.

A record available on the FBI’s Vault, the agency’s electronic Freedom of Information Act library, appears to show that the agency took issue with some reporting on that pilot at the time, but much of the document is redacted. 

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Speaking with FedScoop, five AI policy experts said adhering to both the White House’s Blueprint for an AI ‘Bill of Rights’ and the AI Risk Management Framework (RMF), published by the National Institute of Standards and Technology, presents an obstacle for companies working to develop responsible AI products.

However, the White House and civil rights groups have pushed back on claims that the two voluntary AI safety frameworks send conflicting messages and have highlighted that they are a productive “starting point” in the absence of congressional action on AI. 

The two policy documents form the foundation of the Biden administration’s approach to regulating artificial intelligence. But for many months, there has been an active debate among AI experts regarding how helpful — or in some cases hindering — the Biden administration’s dual approach to AI policymaking has been.

The White House’s Blueprint for an AI ‘Bill of Rights’ was published last October. It takes a rights-based approach to AI, focusing on broad fundamental human rights as a starting point for the regulation of the technology. That was followed by the risk-based AI RMF in January, which set out to determine the scale and scope of risks related to concrete use cases and recognized threats to instill trustworthiness into the technology.

Speaking with FedScoop, Daniel Castro, a technology policy scholar and vice president at the Information Technology and Innovation Foundation (ITIF), noted that there are “big, major philosophical differences in the approach taken by the two Biden AI policy documents,” which are creating “different [and] at times adverse” outcomes for the industry.

“A lot of companies that want to move forward with AI guidelines and frameworks want to be doing the right thing but they really need more clarity. They will not invest in AI safety if it’s confusing or going to be a wasted effort or if instead of the NIST AI framework they’re pushed towards the AI blueprint,” Castro said.

Castro’s thoughts were echoed by Adam Thierer of the libertarian nonprofit R Street Institute who said that despite a sincere attempt to emphasize democratic values within AI tools, there are “serious issues” with the Biden administration’s handling of AI policy driven by tensions between the two key AI frameworks.

“The Biden administration is trying to see how far it can get away with using their bully pulpit and jawboning tactics to get companies and agencies to follow their AI policies, particularly with the blueprint,” Thierer, senior fellow on the Technology and Innovation team at R Street, told FedScoop.

Two industry sources who spoke with FedScoop but wished to remain anonymous said they felt pushed toward the White House’s AI blueprint over the NIST AI framework in certain instances during meetings regarding AI policymaking with the White House’s Office of Science and Technology (OSTP).

Rep. Frank Lucas, R-Okla., chair of the House Science, Space and Technology Committee, and House Oversight Chairman Rep. James Comer, R-Ky., have been highly critical of the White House blueprint as it compares to the NIST AI Risk Management Framework, expressing concern earlier this year that the blueprint sends “conflicting messages about U.S. federal AI policy.”

In a letter obtained exclusively by FedScoop, Arati Prabhakar responded to those concerns, arguing that “these documents are not contradictory” and highlighting how closely the White House and NIST are working together on future regulation of the technology.

At the same time, some industry AI experts say the way in which the two documents define AI clash with one another.

Nicole Foster, who leads global AI and machine learning policy at Amazon Web Services, said chief among the concerns with the documents are diverging definitions of the technology itself. She told FedScoop earlier this year that “there are some inconsistencies between the two documents for sure. I think just at a basic level they don’t even define things like AI in the same way.”

Foster’s thoughts were echoed by Raj Iyer, global head of public sector at cloud software provider ServiceNow and former CIO of the U.S. Army, who believes the two frameworks are a good starting point to get industry engaged in AI policymaking but that they lack clarity.

“I feel like the two frameworks are complementary. But there’s clearly some ambiguity and vagueness in terms of definition,” said Iyer.

“So what does the White House mean by automated systems? Is it autonomous systems? Is it automated decision-making? What is it? I think it’s very clear that they did that to kind of steer away from wanting to have a direct conversation on AI,” Iyer added.

Hodan Omaar, an AI and quantum research scholar working with Castro at ITIF, said the two documents appear to members of the tech industry as if they are on different tracks. According to Omaar, the divergence creates a risk that organizations will simply defer to either the “Bill of Rights” or the NIST RMF and ignore the other.

“There are two things the White House should be doing. First, it should better elucidate the ways the Blueprint should be used in conjunction with the RMF. And second, it should better engage with stakeholders to gather input on how the Blueprint can be improved and better implemented by organizations,” Omaar told FedScoop.

In addition to compatibility concerns about the two documents, experts have also raised concerns about the process followed by the White House to take industry feedback in creating the documents.

Speaking with FedScoop anonymously in order to speak freely, one industry association AI official said that listening sessions held by the Office of Science and Technology Policy were not productive.

“The Bill of Rights and the development of that, we have quite a bit of concern because businesses were not properly consulted throughout that process,” the association official said. 

The official added: “OSTP’s listening sessions were just not productive or helpful. We tried to actually provide input in ways in which businesses could help them through this process. Sadly, that’s just not what they wanted.”

The AI experts’ comments come as the Biden administration works to establish a regulatory framework that mitigates potential threats posed by the technology while supporting American AI innovation. Last month, the White House secured voluntary commitments from seven leading AI companies about how AI is used, and it is expected to issue a new executive order on AI safety in the coming weeks.

One of the contributors to the White House’s AI Blueprint sympathizes with concerns from industry leaders and AI experts regarding the confusion and complexity of the administration’s approach to AI policymaking. But it’s also an opportunity for companies seeking voluntary AI policymaking guidance to put more effort into asking themselves hard questions, he said.

“So I understand the concerns very much. And I feel the frustration. And I understand people just want clarity. But clarity will only come once you understand the implications, the broader values, discussion and the issues in the context of your own AI creations,” said Suresh Venkatasubramanian, a Brown University professor and former top official within the White House’s OSTP, where he helped co-author its Blueprint for an ‘AI Bill of Rights.’ 

“The goal is not to say: Do every single thing in these frameworks. It’s like, understand the issues, understand the values at play here. Understand the questions you need to be asking from the RMF and the Blueprint, and then make your own decisions,” said Venkatasubramanian.

On top of that, the White House Blueprint co-author wants those who criticize the documents’ perceived contradictions to be more specific in their complaints.

“Tell me a question in the NIST RMF that contradicts a broader goal in the White House blueprint — find one for me, or two or three. I’m not saying this because I think they don’t exist. I’m saying this because if you could come up with these examples, then we could think through what can we do about it?” he said.

Venkatasubramanian added that he feels the White House AI blueprint in particular has faced resistance from industry because “for the first time someone in a position of power came out and said: What about the people?” when it comes to tech innovation and regulations. 

Civil rights groups like the Electronic Privacy Information Center have also joined the greater discussion about AI regulations, pushing back on the notion that industry groups should play any significant role in the policymaking of a rights-based document created by the White House.

“I’m sorry that industry is upset that a policy document is not reflective of their incentives, which is just to make money and take people’s data and make whatever decisions they want to make more contracts. It’s a policy document, they don’t get to write it,” said Ben Winters, the senior counsel at EPIC, where he leads their work on AI and human rights.

Groups like EPIC and a number of others have called upon the Biden administration to take more aggressive steps to protect the public from the potential harms of AI.

“I actually don’t think that the Biden administration has taken a super aggressive role when trying to implement these two frameworks and policies that the administration has set forth. When it comes to using the frameworks for any use of AI within the government or federal contractors or recipients of federal funds, they’re not doing enough in terms of using their bully pulpit and applying pressure. I really don’t think they’re doing too much yet,” said Winters.

Meanwhile, the White House has maintained that the two AI documents were created for different purposes but designed to be used side-by-side as initial voluntary guidance, noting that both OSTP and NIST were involved in the creation of both frameworks.

OSTP spokesperson Subhan Cheema said: “President Biden has been clear that companies have a fundamental responsibility to ensure their products are safe before they are released to the public, and that innovation must not come at the expense of people’s rights and safety. That’s why the administration has moved with urgency to advance responsible innovation that manage the risks posed by AI and seize its promise — including by securing voluntary commitments from seven leading AI companies that will help move us toward AI development that is more safe, secure, and trustworthy.”

“These commitments are a critical step forward and build on the administration’s Blueprint for an AI Bill of Rights and AI Risk Management Framework. The administration is also currently developing an executive order that will ensure the federal government is doing everything in its power to support responsible innovation and protect people’s rights and safety, and will also pursue bipartisan legislation to help America lead the way in responsible innovation,” Cheema added.

NIST did not respond to requests for comment.

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Buck is a senior lawmaker who has urged the Defense Department to further investigate whether Amazon improperly influenced the procurement process for the Joint Enterprise Defense Infrastructure (JEDI) contract for cloud computing services and has been stonewalled in his attempts to get answers from the company itself.

In a recent interview with FedScoop, Buck talked about his new book on the matter — “Crushed: Big Tech’s War on Free Speech” – highlighting why government officials should be concerned about unfair monopolistic conduct by Big Tech companies and areas where the federal government could do more to hold the tech giants accountable.

Buck has repeatedly hammered Amazon for unduly favoring its own products on its website or creating cheaper copycats of existing products using internal data which he says is grossly unfair and illegal while he also supports bipartisan legislation that has been introduced in Congress that would prevent Amazon from such conduct.

“I do think that continuing to give Amazon huge government contracts at a time when they’ve acted in this way is really suspect. We should think twice about it,” Buck said during a wide-ranging interview with FedScoop.

“What Congress can do and certainly what inspectors general can do is to look at the way Amazon has conducted themselves in the bidding process for a contract. And if they have broken laws which they may have, they can be debarred from government contracts,” he added.

Buck highlighted that federal civilian agencies as well as intelligence agency employees should be aware of Amazon’s anti-competitive activities in the consumer realm because “Amazon is constantly getting large government [cloud] contracts. They use the profits from those large government contracts to subsidize their retail business. Then in their retail business they engage in predatory pricing against their third party vendors to try to wipe them out which is wrong.”

For the past two years, Buck was the top Republican on the powerful House antitrust subcommittee and has played a key role in forging a bipartisan agreement in Congress that would rein in Big Tech companies such as Google, Amazon, Facebook, and Apple for anti competitive activities.

Buck highlighted he is no longer the chair of the antitrust subcommittee and so cannot determine what Congress investigates although he hopes the new committee chairman Rep. Thomas Massie, R-KY., will work with him on these Big Tech issues he has spearheaded. 

Nevertheless, he would like to use his perch within the Republican party and his new book to place pressure on Amazon to change its behavior or at the least be more transparent with Congress about its actions, particularly around major government contracts.

Buck and Sen. Mike Lee, R-UT., in 2021 aggressively called on Amazon CEO Jeff Bezos and the Acting Inspector General of the Department of Defense Sean O’Donnell to investigate whether Amazon violated antitrust or ethics laws by attempting to influence the procurement process for the JEDI contract for cloud computing services for the Defense Department.

Buck told FedScoop that although Amazon has not engaged sincerely with him regarding his investigation into JEDI and stonewalled his attempts to get answers he remains deeply concerned about Amazon’s unethical behavior around JEDI and wants to put pressure on them to open up regarding their conduct. 

“I can certainly send them another letter, but they’re not going to take it very seriously,” he said.

Instead, Buck said that he urges the Defense Department to continue investigating Amazon’s actions around the JEDI contact.

The Pentagon’s Inspector General (IG) in April 2020 published a long-anticipated  300-plus-page report on the JEDI procurement to probe potential conflicts of interest raised in the early stages of the acquisition process.

The probe ultimately found that personnel who evaluated proposals for the contract were not pressured by the Trump White House to award the deal to Microsoft over Amazon and that the use of a single-award contract was legal.

The Defense Department IG report has since received sustained criticism from Republicans including Buck and Sen. Chuck Grassley, R-IA., who called it “bureaucratic whitewashing” in a scathing letter to the DOD’s Inspector General in January 2022.

Buck has also referred Amazon’s anti competitive practices in the consumer realm to the Justice Department for a criminal investigation. 

Buck is pushing the DOJ to look into potentially criminal conduct by Amazon and its senior executives due to Amazon’s “pattern and practice” of misleading conduct that appeared designed to “influence, obstruct, or impede” the House antitrust subcommittee’s investigation into competition in digital markets.

“What the Department of Justice is doing hopefully will bear fruit,” Buck said.

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OSC had the National Oceanic and Atmospheric Administration‘s acquisition arm issue a request for information (RFI) Feb. 16 on commercial tracking data and services that will be available between now and 2030, so that its repository might serve as a marketplace for them.

Companies provided some data for free so OSC could develop a cloud-based Open-Architecture Data Repository (OADR) prototype, containing the locations of orbiting satellites and debris for space situational awareness (SSA), last summer. But OSC needs to study more commercial low Earth orbit (LEO) and geostationary orbit (GEO) data to improve its OADR algorithms to the point where satellite users trust the reliability of their collision warnings.

“We’re going to do that for the first few years, get that going and then we’re going after international data,” Leonard told FedScoop. “At the end of the day this is a global problem, and we feel like the U.S. can be the global leader in this area.”

OADR is an unclassified system, and OSC is already working with the European Union Space Surveillance and Tracking (EUSST) program to determine what data is interoperable and how more might be shared to fill in reporting gaps and begin tacking debris less than 3 centimeters in size.

OSC hopes to issue another RFI soon for cloud hosting of OADR and, after that, an omnibus RFI for all of the services comprising OADR like conjunction screening, ephemeris generation and the web interface, Leonard said.

The OADR prototype combined 60 days of Department of Defense data with commercial data on about 20,000 to generate on-orbit collision warnings every 15 minutes

“We feel like we can do this even faster because the cloud really offers a great opportunity for scaling up processing power, and that’s one of our intentions,” Leonard said. “We want to make sure that the satellite user gets these warnings and watches of the space environment on a very close to near real-time basis, which is a whole lot more modernized than what currently happens at DOD.”

DOD’s traditional SSA system currently provides collision warnings every eight hours and relies solely on its own tracking data, which is a problem because the department lacks the assets to do so effectively while also monitoring active payloads, large objects and foreign issues. As a result, companies that operate satellites are often reluctant to move them when DOD’s system warns them of a potential collision, Leonard said.

The Department of Commerce, of which OSC is a part, plans to take commercial sector work off of DOD’s plate with OADR, so it can focus on its defense and national security missions.

OSC is building a research and development environment in conjunction with OADR for testing the latest algorithms and working with companies like SpaceX, OneWeb and Amazon to get their large, planned constellations of satellites talking to OADR autonomously. The goal is for satellites to send timed maneuvers to OADR, which would give them the all-clear before proceeding, or alternatively the system would warn them of a pending collision and advise them on which of their stored maneuvers to use.

SpaceX’s launch of its Starling will help OSC and NASA, which has been involved with the project for the last six to seven months, get autonomous operations talking to ground systems as well.

OADR won’t just enable collision warnings though. Once the database is established, OSC has apps planned for satellite pre-launch and reentry screenings, gap analyses between the time satellites are launched and catalogued, validating data accuracy, predicting satellite light pollution for astronomers, and space weather forecasting.

The containerized architecture of OADR will allow OSC to provide satellite operators with DOD, NASA and commercial models in addition to its own, allowing for the sale of more in-depth analysis. DOD, NASA and the Federal Aviation Administration will fund advances to the OADR data products they need.

“We’ve been working with our appropriators in Congress and requesting the proper funding next year and follow-ons to build this system, and we’re excited,” Leonard said. “We’re bringing in new staff this year and should have a director and deputy director very soon; they actually just advertised the deputy director position for the office.”

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AWS’s Top Secret-West region will add to its existing top-secret capabilities supported by its Top Secret-East region based out of Northern Virginia since 2014. Like that first region, this one will also be air-gapped with multiple “availability zones” comprised of “discrete data centers with redundant power and networking.”

Together, the two sites will allow AWS’s defense, intelligence community and national security customers to “deploy multi-Region architectures to achieve the highest levels of resiliency and availability essential to their most critical national security missions,” Max Peterson, vice president of worldwide public sector for AWS, wrote in a blog post Monday.

The new site will also give users located away from Northern Virginia and the D.C. Metro area a new and potentially closer site to store their data, making for less latency. Amazon did not, however, say specifically where the new region is based, revealing only that it is 1,000 miles from the Top Secret-East region.

Peterson wrote that the launch of the new Top Secret region shows Amazon’s dedication to security and supporting organizations, like those in the defense and intelligence communities, that work with some of the nation’s most sensitive information.

“At AWS, security is our top priority,” he wrote. “AWS customers benefit from data centers and network architecture built to meet the requirements of the most security-sensitive organizations. … Today, with the launch of AWS Top Secret-West, we continue our support for mission workloads that span the full range of U.S. government classifications.”

While Amazon is the clear frontrunner in terms of serving the federal government’s most sensitive mission sets at the Secret and Top Secret classification levels for several years now, other cloud providers like Microsoft have made progress, too. Microsoft announced in August that its Top Secret offering is generally available with multiple geographically separate regions.

Amazon’s launch of a second Top Secret region should support its cause for more upcoming work on some of the federal government’s most prominent cloud contracts. The company late last year won a spot on the intelligence community’s Commercial Cloud Enterprise (C2E) contract, under which it will vie for task orders with other cloud giants like Microsoft, Google, IBM and Oracle to support the IC’s classified mission sets. Additionally, it’s been invited to bid on the Pentagon’s forthcoming Joint Warfighter Cloud Capability (JWCC), which, like C2E, will ask contractors to compete for task orders, often dealing with highly classified national security information.

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In a brief filed last Friday, the technology company argued its case should not be declared moot simply on the basis of the DOD ending the contract. It has called on the court to keep the case open at least until it can be established that the tech company’s concerns over JEDI do not also apply to the JEDI replacement contract, the Joint Warfighter Cloud Capability (JWCC).

“Cases do not become moot simply because a defendant issues a press release claiming to have ceased its misconduct,” Oracle argued in its submission to the court. “Here, the government asserts that the Department of Defense mooted this case by cancelling JEDI, the procurement contract that Oracle has challenged.”

“[I]n the next breath, the department states its intent to replace JEDI with another similar cloud-computing contract; to presumptively award the contract to Microsoft and respondent Amazon Web Services as the “only” eligible competitors; and to exclude other bidders based on infected research and requirements drawn directly from the challenged procurement,” said Oracle.

When a federal court deems a case to be moot, the court no longer has the power to hear the legal claim and must dismiss the complaint.

Following the award of the JEDI contract to Microsoft in 2019, Oracle filed a separate complaint against the government, alongside Amazon. It argued that the Department of Defense unlawfully structured the contract as a single-source award, rather than a multiple-award solicitation, which the new JWCC contract will be.

Oracle has also contended that the JEDI procurement was void because multiple employees who worked on the contract had conflicts of interest that violated criminal law.

On July 6, the Department of Defense announced it would scrap the JEDI contract in its entirety and replace it with the JWCC. At the time, the department said it would seek proposals only from Microsoft and AWS for the initial portion of the acquisition because market research showed these were the only two cloud service providers capable of meeting contract requirements.

In its most recent brief to the court, Oracle argued that this latest contract is also flawed because it relies upon erroneous information.

“Based on the same preexisting ‘[m]arket research’ that infected the JEDI procurement challenged in Oracle’s pending petition for certiorari, the department stated that it ‘anticipate[d] awarding two [such] contracts—one to Amazon Web Services, Inc. (AWS) and one to Microsoft Corporation (Microsoft),’ the company said in its submission.

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While details of the forthcoming JWCC are limited for now, DOD acting CIO John Sherman revealed some key changes for the procurement. The department will look to issue multiple direct awards with cloud service providers and is also intending to seek proposals from JEDI-winner Microsoft and its main competitor Amazon. Several years down the road, DOD will also pursue a “larger, full-and-open” multi-cloud procurement.

Sherman said the new program will “fill our urgent unmet requirements for a multi-vendor enterprise cloud spanning the entire department in all three security levels, with availability from [the Continental U.S.] to the tactical edge at scale. JWCC will enable us to fulfill the promise of transformational activities such as Joint All-Domain Command and Control, or JADC2, and the Artificial Intelligence and Data Acceleration or AIDA initiative.”

While the continued protests of JEDI undoubtedly impacted DOD’s decision to cancel the beleaguered contract Tuesday, Sherman said even if it had gone into operation as intended after award, “we would have been having this multi-cloud discussion right about now anyway” due to the evolving needs of the department.

Though the DOD has a variety of existing vehicles to work with each of these cloud providers in place, like milCloud 2.0 and others, Sherman said there is “nothing to the extent and reach that the enterprise capability we’re seeking to acquire from this will provide through JWCC — truly from the headquarters to the tactical edge in all three security levels at scale.”

Where JEDI was a potential 10-year, $10 billion contract with an open competition, JWCC will be a maximum five-year vehicle worth multiple billions. The new contract also differs in that only those providers that the DOD believes meet its requirements will receive “direct” solicitations to submit proposals for contracts. While Sherman said Amazon and Microsoft both qualify, he clarified that they will not automatically be awarded anything; rather, they will be asked to submit proposals.

Each cloud provider will need to be able to offer services at the unclassified, secret and top-secret security levels, with parity across each of those levels. On top of that, the procurement’s basic requirements call for integrated cross-domain solutions, global availability including at the tactical edge and enhanced cybersecurity controls.

On the topic of price, that will be determined later in the procurement, Sherman said, emphasizing that people shouldn’t get fixated on a certain figure.

Over the next several months, the DOD will conduct market research and industry outreach to confirm its plans for the procurement and the companies that qualify to submit proposals, launching a final solicitation by mid-October, Sherman said. The hope is to issue final awards by “about April 2022.”

“Over the next roughly three months, we will conduct this additional research and direct engagements with other U.S. hyperscale cloud service providers or CSPs to ensure our assessments are accurate and based on the company’s latest information,” he said, noting that the department will be in close touch with other providers like IBM, Google and Oracle to see if they qualify to participate. “If we determine that additional vendors can also meet our requirements, then we will extend solicitations to them as well.”

Asked for his thoughts if there may be companies left out that may inevitably protest, forcing the JWCC acquisition to drag out like JEDI did, Sherman said if a provider is interested in participating, he and his team will be working with them to “hear fully their company’s capabilities.

“We’re going to be asking for artifacts and engagement to ensure that if they’re able to meet the level we need, that we get all that information and keep that door open through October,” he said. “That’s how we’re going to approach this. And whereas we can never control for every factor, our openness of this is going to be critical on that point.”

The direct awards with the providers will be indefinite-delivery, indefinite-quantity contracts that span a three-year base period and two optional years.

“We believe this contract period is both appropriately brief for a direct award but long enough for us to start to leverage the new enterprise capabilities as we fully develop our longer-term plan,” Sherman said.

Based on the timeline, as soon as 2025, the department could then move into a full-and-open competition that would follow on this initial acquisition, if the department deems it’s ready, Sherman said. “Once the second year of this direct award phase starts, roughly in 2023, for the next two years, we’re going to be working on the scoping and other activities to get ready for that larger, full-and-open competition.”

While the DOD Office of the CIO has ultimate oversight of the acquisition strategy, the Cloud Computing Program Officer within the Defense Information Systems Agency will lead the management and operation of any activities under JWCC and integration among providers.

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According to court documents, Amazon is seeking the disclosure of additional internal communications from the Department of Defense — including emails and Slack messages — which lawyers representing the government say cannot be disclosed because of national security concerns.

Both the U.S. government and contract winner Microsoft were seeking to expedite the case schedule. Lawyers for the government said its implications for national security also merit that the case be fast-tracked, while lawyers for Microsoft say it should be sped up because of the large financial losses the technology giant stands to accrue. The company declined to comment further.

Under the schedule put forward by AWS, the cloud services company will file a renewed motion to complete the administrative record by June 18. The U.S. government and Microsoft will then have until July 9 to respond, and Amazon will have until July 16 to file another reply.

It represents the latest stage in the legal challenge, which was launched by Amazon after the Joint Enterprise Defense Infrastructure contract was awarded to Microsoft in 2019.

Pentagon officials have previously indicated that they may be willing to drop the cloud computing project, which has been slowed by the litigation.

In March this year, a federal judge refused a request by the DOD to dismiss much of Amazon’s case, and Deputy Defense Secretary Kathleen Hicks said the department would review the project.

In a statement to FedScoop, a DOD spokesperson said: “We are aware of the Court’s decision relating to the protest; however, it does not affect the DoD’s commitment to establish an enterprise-wide cloud capability.”

AWS did not immediately respond to a request for comment.

The post Federal Claims Court judge sides with AWS on JEDI lawsuit timing appeared first on FedScoop.

In a response brief filed Monday, Oracle continued its push to label the Department of Defense acquisition as an irregular single-award contract with “prejudicial,” competition-limiting gate requirements.

“Absent this Court’s intervention, the JEDI contract will proceed for the next decade as an illegal single-source award,” the company said in its submission to court.

Earlier this year, Oracle filed a petition for writ of certiorari, which is the legal process required to appeal for the Supreme Court to review a lower court’s decision. In this case, Oracle has asked the Supreme Court to review the Federal Circuit Court of Appeals’ decision to uphold the JEDI procurement. Oracle has previously lost out in appeals made to the Government Accountability Office and the Court of Federal Claims.

Government lawyers have previously argued that Oracle failed to meet basic gate requirements for the contract, which prohibited it from progressing in the bid process. The company has pursued almost every legal option available to contest the acquisition.

In its latest response brief, Oracle reintroduced allegations of conflicts of interest between the DOD and Amazon, which a lower court previously affirmed but said did not “taint” the overall acquisition. Oracle, however, believes that decision is not in line with Supreme Court precedents, according to court documents.

In a separate brief from earlier this month, the U.S. government argued to the Supreme Court that Oracle continues a tactic of “cherry pick[ing] from the vast amount of communications and isolat[ing] a few suggestive sound bites” as it relates to conflicts of interest. It also reminded the court that it is Congress’ “preference, though not a requirement, that task order and delivery order contracts be awarded to multiple sources, rather than a single source”.

Regardless of the Supreme Court’s decision on Oracle’s case, it’s possible there may not be a JEDI contract for much longer. Amazon Web Services has had success building a case in the Court of Federal Claims that prevented contract winner Microsoft from building out an enterprise cloud system for the DOD. The department said recently that if things were to continue on much longer with that lawsuit, it might consider alternatives to JEDI. 

Oracle was contacted for comment.

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