- The Washington Times - Thursday, January 18, 2018

Kaspersky Lab, a Moscow-based software vendor accused of keeping close ties to the Russian government, has asked a D.C. federal court judge to block a Department of Homeland Security directive prohibiting U.S. agencies from using its products.

Attorneys for Kaspersky filed a motion for a preliminary injunction Wednesday that would put a pause on the government-wide ban, Binding Operational Directive 17-01, despite security concerns raised by reports concerning the company’s alleged connections with Russian intelligence.

Issued in September, the BOD gave government agencies 90 days to identify and eliminate the presence of any Kaspersky products, significantly disrupting the company’s presence in the U.S. market.

“DHS did not provide Plaintiffs prior notice of the BOD, nor a prior opportunity to contest the purported evidence underlying it,” attorney Ryan Fayhee wrote in the motion this week, filed as part of a federal lawsuit initiated by Kaspersky in D.C. federal court last month.

“Plaintiffs filed this action seeking rescission of the BOD, and now move for a preliminary injunction to stem the continuing significant damage to Kaspersky Lab’s reputation and the loss of sales resulting from the BOD,” Mr. Fayhee wrote.

The directive had “an immediate and profound effect” on Kaspersky, “not only precluding their ability to do business with the U.S. Government, but also significantly damaging Plaintiffs’ reputation and consequently their commercial and consumer business,” he wrote.

Specifically retail sales of Kaspersky products in the U.S. dropped by 61 percent during the fourth quarter of 2017, and that returns of Kaspersky products during that same span increased nearly 2,300 percent relative to one year earlier, its attorney claimed.

“This debarment violated Plaintiffs’ Fifth Amendment rights, by depriving Kaspersky Lab of a constitutionally protected liberty interest without due process of law, and therefore should not withstand Administrative Procedure Act (‘APA’) review.,” Mr. Fayhee wrote. “At the very least, the Fifth Amendment required DHS to give Plaintiffs notice and a meaningful opportunity to contest DHS’s ‘evidence’ before issuance of the BOD. No such notice or opportunity was afforded to Plaintiffs.”

A representative for the Department of Justice, which is representing DHS in the case, declined to comment when reached by The Times, citing active litigation.

In issuing the directive Sept. 13, DHS said it was “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,” DHS said.

State-sponsored hackers exploited Kaspersky antivirus to conduct espionage on behalf of Russia, according to subsequent media reports. Kaspersky has repeatedly denied being in cahoots with Russian intelligence.

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