Russian Software Company Sues Feds Over Ban

WASHINGTON (CN) – A Russian antivirus company sued the U.S. government over claims that a legislative ban on the use of its products, sparked by fears of the company’s possible ties to Russian intelligence, is unconstitutional.

Kaspersky Lab Inc. and Kaspersky Labs Limited say Congress punished the companies without evidence of any wrongdoing.

“No evidence has been presented of any wrongdoing by the company, or of any misuse of its products,” a spokeswoman for Kaspersky said in an email. “Kaspersky Lab is proven to be one of the world’s leading IT security companies, with a track record of uncovering malicious code and threat actors regardless of their origin or purpose. We continue to offer our full cooperation to government agencies and others with cybersecurity concerns collaboratively and openly through our Global Transparency Initiative.”

Citing the Constitution’s Bill of Attainder Clause, which prohibits punishment without a trial, the 13-page lawsuit filed late Monday night says Congress bypassed the judicial branch by enacting the ban, which was part of last year’s must-pass National Defense Authorization Act.

“The NDAA is therefore a bill of attainder. The law ‘attaints’—or ‘stains’—Kaspersky and as a result the company suffers profound reputational injury by design,” the complaint says.

Congress enacted the ban as fears grew last year about Kaspersky’s connection to Russian intelligence and whether antivirus software can find and remove files, leading the Department of Homeland Security to issue a directive in September barring federal agencies from using the products.

According to Homeland Security, Kaspersky products posed a “threat, vulnerability and risk to U.S. government information systems.”

The February 12 lawsuit marks the company’s second legal challenge to the ban. On December 18 of last year, the company sued the Department of Homeland Security, asking the court to overturn the ban.

In January, attorney Ryan Fayhee argued in a court filing that Homeland Security partially based its directive on press reports containing “uncorroborated” anonymous sources. On Tuesday, U.S. District Judge Colleen Kollar-Kotelly, who is presiding over that case, placed Kaspersky’s motion for an immediate halt to the ban on hold, urging Kaspersky to seek summary judgment instead.

“Especially now that this new issue has been injected into this case, the Court reiterates its strong view that a preliminary injunction motion is not the most appropriate vehicle for an expeditious resolution of Plaintiffs’ claims on their merits,” Kollar-Kotelly states in her Tuesday order.

Kaspersky denies having links to Russian intelligence and says in its new complaint that Congress has gone too far by imposing “the broadest possible ban” against the company.

“The absence of any legitimate legislative purpose on the face of the law itself and the thread-bare legislative record make it difficult to discern any non-punitive Congressional intent,” the complaint states. “The ready availability of less burdensome alternatives to the expansive ban actually imposed is also strongly suggestive of an intent to inflict punishment on Kaspersky Lab.”

Attorneys for Kaspersky, Ryan Fayhee and Steven Chasin of the Washington-based firm Bakery & McKenzie, did not respond to an email seeking comment on the lawsuit.

The Department of Justice also did not return a request for comment.


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