Here's my story about this morning's Kaspersky hearing, where the appeals court judges appeared skeptical that the government-wide ban violated the Constitution: subscriber.politicopro.com/cybersecurity/…
Includes quotes from K lawyer Ryan Fayhee, who talked to me and @Joseph_Marks_ afterward.
Includes quotes from K lawyer Ryan Fayhee, who talked to me and @Joseph_Marks_ afterward.
@Joseph_Marks_ A few observations:
Kaspersky’s argument is that the ban is a bill of attainder, which is when Congress passes a law declaring someone guilty (e.g. no trial). To argue this, K points out that the ban only applies to it. Specific targeting by Congress is generally a no-go.
Kaspersky’s argument is that the ban is a bill of attainder, which is when Congress passes a law declaring someone guilty (e.g. no trial). To argue this, K points out that the ban only applies to it. Specific targeting by Congress is generally a no-go.
But the judges seemed to disagree, referencing a similar case: The law Congress passed to force Nixon to hand over the Watergate tapes. SCOTUS upheld in Nixon v. GSA (1977).
Yes, Watergate showed up in the hearing!
Yes, Watergate showed up in the hearing!
Kaspersky's lawyer couldn’t name another company to whom a broader ban might apply.
So maybe, the judges said, Kaspersky was a “class of one” like Nixon — and thus even a broader law wouldn’t affect anyone else.
In which case, not a bill of attainder.
So maybe, the judges said, Kaspersky was a “class of one” like Nixon — and thus even a broader law wouldn’t affect anyone else.
In which case, not a bill of attainder.
Kaspersky also tried to argue in its brief that the ban was “consistent” with laws punishing Communists and former Confederates
During oral arguments, Judge Tatel firmly rejected that, saying this was “a totally different situation.”
Not good for Kaspersky.
During oral arguments, Judge Tatel firmly rejected that, saying this was “a totally different situation.”
Not good for Kaspersky.
There was also a disagreement about the congressional record underpinning the ban. Kaspersky's lawyer argued that there was no evidence in the record that Congress’s goal was to protect computer systems generally.
Instead, Kaspersky's lawyer highlighted @SenatorShaheen’s press releases, which were specifically about Kaspersky and how it was a threat and a vulnerability.
The lawyer also said that there were no hearings about this ban.
The lawyer also said that there were no hearings about this ban.
DOJ's lawyer pointed to more general hearings about Russian cyber threats and said under current case law, those hearings could be considered as part of the context for the ban.
(K case is weaker if judges believe congressional intent was to protect national security generally.)
(K case is weaker if judges believe congressional intent was to protect national security generally.)
Lastly, another big moment that signalled that Kaspersky was in trouble.
Kaspersky's lawyer said the ban was a bill of attainder even if Congress’s intent wasn’t just about Kaspersky, because the harm to Kaspersky outweighed the national security justification. But then...
Kaspersky's lawyer said the ban was a bill of attainder even if Congress’s intent wasn’t just about Kaspersky, because the harm to Kaspersky outweighed the national security justification. But then...
...Judge Edwards interrupted, saying that any reputational damage that Kaspersky suffered might simply be “the consequence you pay if you put our nation in jeopardy.”
Yeah, not a good sign for Kaspersky.
Yeah, not a good sign for Kaspersky.
