Lawsuit Over Government’s Kaspersky Ban Hits A Turning Point

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The judge in the cases must now either rule on motions in the cases or order oral arguments.

Kaspersky’s legal battles against the U.S. government could be hurtling toward a conclusion or a tipping point after legal filings last week.

The government filed documents April 16 that mark an end to the first phase of legal briefings in two separate cases in which the Russian anti-virus provider is challenging the federal government’s efforts to ban it from federal contracts.  

The judge in both cases, Colleen Kollar-Kotelly, must now either request oral arguments from the litigants or issue a ruling based on the briefing materials alone, a former cybercrime prosecutor told Nextgov.  

The first case challenges a civilian government ban the Homeland Security Department issued in September after concluding that Kaspersky was too closely tied to the Russian government and that its products might be used to spy on U.S. officials and operations.

In that case, Kaspersky and Homeland Security are both seeking summary judgment, a legal phrase that essentially means one side is clearly legally correct and there’s no reason to argue further.

Homeland Security is also asking the judge to dismiss the case, which would amount to the same thing.

In the second case, Kaspersky is challenging a governmentwide ban Congress included in a recent defense policy bill. The U.S. government has asked the judge to dismiss that case.

In both cases, the U.S. and Kaspersky have concluded the back and forth volley of legal documents that precedes any judicial action.

If Kaspersky prevails in either case that could set the stage for a public trial in which the company can air its grievances with the U.S. ban.

While that legal battle is unlikely to win back Kaspersky’s government business, it may help the company to retain U.S. corporate clients who are spooked by the government ban.

In the Homeland Security case, Kaspersky basically argues that the department gave the company insufficient notice before commencing the ban. Homeland Security says the company is exaggerating the amount of notice it was entitled to.

In the legislative case, Kaspersky argues that Congress unfairly targeted the company for punishment. The government says that Congress wasn’t trying to punish Kaspersky when it instituted the ban; it was trying to protect national security.

Kaspersky has consistently denied any cooperation with the Russian government. CEO Eugene Kaspersky has charged that the U.S. government is punishing his company because of broader geopolitical conflicts between the U.S. and Russia.

In July, Kaspersky offered to share its source code with the U.S. government, an offer the U.S. never took the company up on, a company spokesperson recently told Nextgov.

In October, the company announced a transparency initiative that will include an audit of its source code by an independent third party.  

Twitter banned Kaspersky from advertising on its platform late last week. Eugene Kaspersky criticized the ban in an open letter to Twitter CEO Jack Dorsey. He promised to donate the company’s Twitter advertising budget to the Electronic Frontier Foundation, an internet freedom advocacy group.