Kaspersky to appeal DHS ban in federal court

Kaspersky Lab plans to file an appeal in federal court challenging the Department of Homeland Security’s (DHS) ban on government agencies using the company’s software.

“One of the foundational principles enshrined in the U.S. Constitution, which I deeply respect, is due process: the opportunity to contest any evidence and defend oneself before the government takes adverse action,” founder Eugene Kaspersky wrote in an open letter released Monday.

“Unfortunately, in the case of Binding Operational Directive 17-01, DHS did not provide Kaspersky Lab with a meaningful opportunity to be heard before the Directive’s issuance, and therefore, Kaspersky Lab’s due process rights were infringed.”

{mosads}DHS issued a binding directive in September banning federal agencies from using Kaspersky Lab products, citing the potential security threat that could come from working with the Moscow-based firm. The agency claimed the decision was based on “open source” data — information already in the public view, like newspaper accounts and congressional hearings.

There have been subsequent media reports of at least one Russian intelligence operation using Kaspersky antivirus software to identify and steal classified files. And subsequent House Science Committee hearings uncovered that the Department of Defense first identified the company as a potential threat in 2004. However, DHS’s explanation for the ban has not changed.

Kaspersky Lab said it plans to argue two key points about the DHS directive. First, that Kaspersky was not given enough time to contest allegations before a ban was issued. Second, that the open-source documents available at the time of the ban were based more on innuendo than a technical threat that Kaspersky could analyze and respond to. 

According to Eugene Kaspersky’s letter, the company contacted DHS in July — two months before the directive — with an offer to help assuage any concerns. 

“The integrity and assurance of our products and technologies remain our utmost priority, and we maintain that a deeper, collaborative examination of our company and its products will assuage any concerns,” he wrote.

According to Kaspersky, the assistant secretary of DHS’s Office of Cybersecurity and Communications, Jeanette Manfra, wrote back in August to confirm receipt of the letter.

“We look forward to communicating with you further on this matter and receiving such information from you, and we appreciate your patience as we work through timing and logistical issues,” she added, Kaspersky wrote.

The next communication Kaspersky claims to have received was the federal directive banning its software. 

The DHS directive is not the only hurdle the firm faces in conducting business with federal agencies. President Trump recently signed the National Defense Authorization Act, which contained a provision barring agencies from using Kaspersky products. Even without the DHS directive, the Kaspersky ban would still be codified in law. 

But the company believes that bringing the matter to court will offer it the chance to repair some of the reputational damage caused by the allegations against it. 

“In filing this appeal, Kaspersky Lab hopes to protect its due process rights under the U.S. Constitution and federal law and repair the harm caused to its commercial operations, its U.S.-based employees, and its U.S.-based business partners,” Kaspersky Lab wrote in a press release announcing the civil action. 

DHS did not immediately respond to The Hill’s request for comment.