US Ban on Russian Anti-Virus Firm's Software Survives Court Challenge
“These defensive actions may very well have adverse consequences for some third parties. But that does not make them unconstitutional,” U.S. District Judge Colleen Kollar-Kotelly in Washington said in her ruling Wednesday against Kaspersky Lab Inc.
May 30, 2018 at 01:54 PM
4 minute read
U.S. District Judge Colleen Kollar-Kotelly. Credit: Diego M. Radzinschi/NLJ
A federal judge on Wednesday dismissed a Moscow-based company's challenge to the Trump administration's governmentwide ban on its software, ruling that the U.S. Department of Homeland Security's move was justified to minimize cybersecurity vulnerabilities.
“These defensive actions may very well have adverse consequences for some third parties. But that does not make them unconstitutional,” U.S. District Judge Colleen Kollar-Kotelly in Washington said in her ruling.
Kaspersky Lab, represented by Baker McKenzie, filed two lawsuits in the U.S. District Court for the District of Columbia. The first challenged the Department of Homeland Security's ban on the firm's software. The second targeted a law passed by Congress that bolstered the government order to stop federal agencies from using “any hardware, software or services” from the company.
When it ordered the ban, in September 2017, the DHS cited concerns about ties between Kaspersky officials and Russian intelligence.
Kaspersky has denied having such ties, describing the allegations as “inflammatory” and inspired by anti-Russia hysteria. The company asked Kollar-Kotelly to declare the governmentwide software ban unconstitutional, arguing that it unfairly singled out the company as a “target for legislative punishment.”
Kollar-Kotelly rejected that claim, saying the law passed by Congress “does not inflict 'punishment' on Kaspersky Lab.”
Rather, the judge wrote, “it eliminates a perceived risk to the nation's cybersecurity and, in so doing, has the secondary effect of foreclosing one small source of revenue for a large multinational corporation.”
Ryan Fayhee, a partner at Hughes Hubbard & Reed who left Baker McKenzie in May, was not immediately reached for comment.
Kaspersky said in a statement:
“Kaspersky Lab is disappointed with the court's decisions on its constitutional challenges to the U.S. government prohibitions on the use of its products and services by federal agencies. We will vigorously pursue our appeal rights. Kaspersky Lab maintains that these actions were the product of unconstitutional agency and legislative processes and unfairly targeted the company without any meaningful fact finding. Given the lack of evidence of wrongdoing by the company and the imputation of malicious cyber activity by nation-states to a private company, these decisions have broad implications for the global technology community. Policy prohibiting the U.S. government's use of Kaspersky Lab products and services actually undermines the government's expressed goal of protecting federal systems from the most serious cyber threats.”
In the separate challenge to the ban ordered by DHS, Kollar-Kotelly found that Kaspersky lacked standing. Even if she ruled in favor of Kaspersky in that challenge, she wrote, the law backing up that ban “would remain on the books, preventing any federal government agency from purchasing Kaspersky Lab products.”
Kollar-Kotelly noted that the law does not take effect until October but said that, in response to the DHS order, government agencies have likely already removed Kaspersky Lab products from their systems.
“Under these circumstances, it is completely implausible that any government entity would purchase a Kaspersky Lab product before October 1st,” she wrote.
Here's the full ruling against Kaspersky Lab:
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