The Department of Commerce's Bureau of Industry and Security (BIS) has announced a Final Determination prohibiting Kaspersky Lab, Inc., the U.S. subsidiary of the Russian cybersecurity firm, from providing any products or services in the United States. This historic decision of the US banning Kaspersky marks the first Final Determination by the Office of Information and Communications Technology and Services (OICTS). The BIS has set a deadline of September 29, 2024, giving U.S. consumers and businesses time to switch to alternative cybersecurity solutions. Kaspersky will no longer be able to sell its software within the United States or provide updates to software already in use. The prohibition also applies to Kaspersky Lab, Inc.’s affiliates, subsidiaries, and parent companies (together with Kaspersky Lab, Inc., “Kaspersky” The US banning Kaspersky incident highlights rising concerns over national security risks linked to foreign technology companies, especially those from adversarial states. Further, it reflects years of scrutiny and represents a significant escalation in U.S. efforts to safeguard its cyber infrastructure. “This action is the first of its kind and is the first Final Determination issued by BIS’s Office of Information and Communications Technology and Services (OICTS), whose mission is to investigate whether certain information and communications technology or services transactions in the United States pose an undue or unacceptable national security risk,” reads the official BIS announcement. Additionally, BIS has added three entities—AO Kaspersky Lab and OOO Kaspersky Group (Russia), and Kaspersky Labs Limited (United Kingdom)—to the Entity List for their cooperation with Russian military and intelligence authorities in support of the Russian Government’s cyber intelligence objectives. This article delves into the timeline and context of U.S. actions against Kaspersky, highlighting the shift from the Trump administration to the Biden administration.

US vs Kaspersky: A Timeline of Cybersecurity Actions

2017

September- The Trump Administration’s heightened scrutiny of Kaspersky began. The Department of Homeland Security (DHS) issued a Binding Operational Directive (BOD 17-01) that mandated removing and discontinuing Kaspersky products from all federal information systems. This directive followed mounting evidence suggesting that the Russian government could use Kaspersky’s products to infiltrate U.S. networks. December- The National Defense Authorization Act (NDAA) for Fiscal Year 2018 cemented these concerns into law by prohibiting the use of Kaspersky software across all federal agencies. This legislative action reflected a bipartisan consensus on the potential risks posed by the Russian firm.

2022

March- The Federal Communications Commission (FCC) added Kaspersky to its “List of Communications Equipment and Services that Pose a Threat to National Security.” This action was part of a broader effort to secure the nation’s communications networks from foreign influence and control.

2024

June - Today’s Final Determination by the BIS represents the culmination of a thorough investigation by the Office of Information and Communications Technology and Services (OICTS). This office, established to assess whether certain information and communications technology (ICT) transactions pose unacceptable national security risks, has found Kaspersky’s operations in the U.S. untenable.

US Banning Kaspersky: The Context and Implications of BIS’s Final Determination

The BIS’s decision comes after a comprehensive investigation revealed that Kaspersky’s operations in the United States posed an undue or unacceptable national security risk. The key concerns highlighted include:

1. Jurisdiction and Control by the Russian Government: Kaspersky is subject to Russian laws requiring cooperation with intelligence agencies. This legal framework gives the Russian government potential access to data managed by Kaspersky’s software. Therefore, Kaspersky is subject to Russian laws, requiring it to comply with requests for information that could compromise U.S. national security.
2. Access to Sensitive Information: Kaspersky’s software has extensive administrative privileges over customer systems, creating opportunities for data exploitation.
3. Potential for Malicious Activities: Kaspersky could theoretically introduce malware or withhold crucial security updates, compromising U.S. cybersecurity.
4. Third-Party Integrations: Integrating Kaspersky products into third-party services further complicates the risk, as the source code might be obscured, increasing vulnerability in critical U.S. systems.

Transition Period and Recommendations

While users won’t face legal penalties for continued use of Kaspersky products during this period, they assume all associated cybersecurity risks. This grace period is crucial for minimizing disruptions and ensuring a smooth transition to secure alternatives. The Department of Commerce, along with DHS and DOJ, is actively working to inform and assist users in transitioning to alternative cybersecurity solutions. “The actions taken today are vital to our national security and will better protect the personal information and privacy of many Americans. We will continue to work with the Department of Commerce, state and local officials, and critical infrastructure operators to protect our nation’s most vital systems and assets,” said Secretary of Homeland Security Alejandro N. Mayorkas. runZero, meanwhile, released tools to detect Kaspersky products on in most Windows installations, which also work with the company's free community edition.

Historical Background: From Trump to Biden

The determination against Kaspersky is part of a broader U.S. strategy to safeguard its information and communications technology infrastructure. The roots of this policy can be traced back to Executive Order 13873, “Securing the Information and Communications Technology and Services Supply Chain,” which empowers the Commerce Department to evaluate and act against risks posed by foreign ICTS transactions. The scrutiny of Kaspersky began during the Trump administration, amid growing concerns about Russia's cyber capabilities and potential espionage activities. The Trump-era directives and legislative actions laid the groundwork for stricter controls, reflecting a bipartisan consensus on the threat posed by foreign cyber interference. Under the Biden administration, the approach has evolved into a more comprehensive and coordinated effort. The establishment of the OICTS within BIS and the issuance of the Final Determination represents a significant escalation in the U.S. government's efforts to protect its digital infrastructure. The Biden administration's emphasis on a “whole-of-government” strategy underscores the critical importance of cybersecurity in national defense. The U.S. government has taken a coordinated approach to implementing this determination. Commerce Secretary Gina Raimondo emphasized the commitment to national security and innovation, stating that this action is a clear message to adversaries. “Russia has shown time and again they have the capability and intent to exploit Russian companies, like Kaspersky Lab, to collect and weaponize sensitive U.S. information, and we will continue to use every tool at our disposal to safeguard U.S. national security and the American people. Today’s action, our first use of the Commerce Department’s ICTS authorities, demonstrates Commerce’s role in support of our national defense and shows our adversaries we will not hesitate to act when they use their technology poses a risk to the United States and its citizens,” said Raimondo.

The Future of U.S. Cybersecurity Policy

The inclusion of Kaspersky and related entities on the Entity List highlights the U.S. government’s proactive stance. This list, maintained under the Export Control Reform Act of 2018, identifies entities engaged in activities contrary to U.S. national security interests. Additions to this list involve rigorous interagency review, ensuring that actions are based on concrete, specific evidence of risk. “With today’s action, the American cyber ecosystem is safer and more secure than it was yesterday,” said Under Secretary for Industry and Security Alan Estevez. “We will not hesitate to protect U.S. individuals and businesses from Russia or other malign actors who seek to weaponize technology that is supposed to protect its users.” As the September deadline approaches, businesses and individuals alike must stay informed and take necessary steps to secure their digital environments. The U.S. government's decisive action against Kaspersky highlights the critical importance of vigilance and proactive measures in the ever-evolving landscape of cybersecurity.