The U.S. government’s decision to ban the use of Kaspersky Lab products in the United States received a major boost recently after a federal appeals court in Washington, D.C. upheld the ban in a case filed by the company in which it contended that the ban was unconstitutional.
In September last year, the US Department of Homeland Security (DHS) directed all government departments and agencies to remove or replace Kaspersky Lab software within 90 days. In a press release, DHS stated that Kaspersky Lab’s anti-virus products and solutions provided broad access to files and elevated privileges on the computers on which the software was installed, and this, in turn, offered cyber criminals the opportunity to compromise those information systems.
“The Department is concerned about the ties between certain Kaspersky officials and Russian intelligence and other government agencies, and requirements under Russian law that allow Russian intelligence agencies to request or compel assistance from Kaspersky and to intercept communications transiting Russian networks.
“The risk that the Russian government, whether acting on its own or in collaboration with Kaspersky, could capitalize on access provided by Kaspersky products to compromise federal information and information systems directly implicates U.S. national security,’ the department added.
Kaspersky Lab’s legal challenge to DHS ruling
In order to get the ban overturned, Kaspersky Lab filed an appeal at the Court of Appeals for the District of Colombia Circuit in December last year to enforce its constitutional due process rights under the Administrative Procedure Act. In the appeal, the firm contended that decision of the DHS was “unconstitutional and relied on subjective, non-technical public sources such as uncorroborated and often anonymously sourced media reports, related claims and rumours”.
The company also told the court that DHS did not provide it with an adequate due process to respond to the allegations and did not back up its allegations with any evidence of wrongdoing by the company.
However, Kaspersky Lab’s bid to regain the right to sell its products in the United States received a jolt on Friday after the court determined that the DHS’ communique to government agencies and the congressional National Defense Authorization Act (NDAA) were not unconstitutional.
In a blog post published on Friday, Eugene Kaspersky, CEO of Kaspersky Lab, said that even though the court’s verdict was disappointing, the appeal was not only about the constitutional legality of a government decision but also challenged the “progression of protectionism and balkanisation” that affected the fight against cyber-rivalry and highly sophisticated international cyber threats.
“The DC Circuit Court’s decision is disappointing, but the events of the past year that culminated in this decision were almost expected, and not just by our company, but by the cybersecurity industry in general.
“Regardless of whether we decide to pursue further legal action in response to today’s decision from the DC Circuit Court, we’ll remain committed to providing the best cybersecurity solutions for our customers globally and saving the world from cyber threats. That has been our mission for more than 20 years now, and no hindrance will stop us from fighting for it,” he said.
This isn’t the first time that Kaspersky Lab’s efforts to regain its market share in the U.S. have been scuttled by U.S. courts. In May this year, U.S. District Judge Colleen Kollar-Kotelly dismissed a suit filed by Kaspersky Lab that sought to overturn the DHS’ ruling that was issued in September last year. The judge determined that Kaspersky Lab had failed to convince the court that “Congress violated constitutional prohibitions on legislation that “determines guilt and inflicts punishment” without the protections of a judicial trial”.