Kaspersky filed an injunction Wednesday challenging the U.S. government's ban of the software company's products, arguing that the Department of Homeland Security didn't give it an opportunity to contest the purported evidence.
In September 2017, the DHS issued a directive that removed as well as banned software developed by the Moscow based citing the agency was concerned about “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 DHS said in its statement.
Kaspersky said it is seeking rescission of the BOD and is moving for a preliminary injunction to stem the continuing significant damage to the firm's reputation and the loss of sales resulting from the ban, the company said in court documents
Kaspersky has been pushing back against the DHS and has described assertions of the firm's ties to the Russian government as "completely unfounded." The security company also appealed to the ban in December 2017.
Partner & Co-Leader of Ballard Spahr's Privacy & Data Security Group, and a former federal cybercrime prosecutor Edward J. McAndrew told SC Media he thinks Kaspersky will likely lose that the firm is fighting an uphill battle for a variety of legal reasons. McAndrew said Kaspersky is attempting to use the Administrative Procedures Act to challenge DHS's administrative actions but there are two likely fatal flaws in this strategy.
“First, the DC district court has already concluded – in the OPM data breach litigation -- that the APA does not provide a basis for judicial review under FISMA,” McAndrew said. “Second, the government will likely argue that Kaspersky's challenge to the agency actions is now mooted by the codification of the Kaspersky ban in the 2018 National Defense Authorization Act.”
McAndrew added the best argument that Kaspersky could use is to say the DHS effectively made its decision to ban the products before Kaspersky could meaningfully weigh in to dispute the assessment underlying the BOD.