court really amounts to whether congress can legislate a specific complete and permanent ban on a company that prevents judicial review of the executive branch's own sweeping ban section sixteen thirty four of the national defense authorization act banishes kaspersky lab from providing any goods or services to the federal government without end and without recourse that is punishment that nobody act that's being punished why is it punishment oh if it can be punishment as the supreme court has recognized even for prospect of acts so even if it's anticipating some difficulty in the future it can be considered punishment following brown following selective service at the supreme court so there's no preventive measure that can be taken no your honor the congress can certainly pass laws of general public ability that relationship with russian intelligence that the relationships with any other company like that there are almost every other large cyber security how many other russian company what there is no other russian company that i know of there are to be satisfied with the bandits and no russian company maybe a contractor i think not your honor and let's be again that would not be that would not be balanced with the non punitive purposes for the law if there's only one party in the parties can't be named and there's a so that a larger classes substituted but there's no one else in the class that certainly doesn't do much for these and we have this fiction in state legislation all the time right now in which you know cities more than two million selectively or scope of a statute may indicate punitive miss where the differential treatment of the affected party or parties cannot be explained without resort to inference as a punitive purposes and at preventive purposes are not it was in fact in the supreme court's rejection in brown of its prior decision in doubt this is a page this is three eighty one us five four fifty eight the supreme court in brown said it would be archaic to limit the definition of punishment to retribution punishment serves several purposes retributive rehabilitative determined and preventative one of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm but that does not make imprisonment any less the punishment no one goes to prison without having done something correct that nobody goes to prison not having committed a crime nobody goes to prison without having gone through a traditional trial that safeguarded by all of the constitutional protection it the point is that when something is in that context you just read the preventive purpose is which we often every think of as disabling the person from committing another crime while there are at least for the duration of their jail time it's not that they're just put know yes it was focused on nixon but congress had a legitimate reason for passing a law which happened to have an impact on the accident and isn't and isn't that this case congress is attempting to protect the integrity of the u s government's computer that's what this is we have to balance congress's professed purpose again it's impact on that there's nothing in section sixteen thirty four itself that says what congress has purposes the senator who introduced section sixteen thirty four described its purpose as quote to ban cust first use software from all of the federal government would you agree then that if we thought there was a sufficient  that was passed if the if the court assumes that the purpose for section sixteen thirty four a is a is the protection of national security there is still a significant imbalance between that non punitive purpose decision at three fifty one a for third eleven twenty nine twelve twenty one where the court said there house where there is a significant a balance between the magnitude of the burden imposed and a purported non punitive purpose it's potentially under the thumb of the russian government that there was no evidence even relied upon by the department of homeland security because person he'll have is under the phone of the russian said potentially because of its connections to russia right but if they can those connections are rather speculative on the the record that even the department of homeland security has provided i thought you conceded in your brief that the purpose of the legislation was to address national security vulnerability and then a question about right and if the purpose is national security and again there is a significant a balance between that possible you're wrong as the supreme court recognized in love that the case in which we relied on the bar in that case quote stigmatize the reputation and seriously impair their chance to earn a living unquote which is the same what i did see i thought when i read your reply brief you kind of abandoned the lights on the motivational tests that were on i think i don't think that that's correct your honor because we've cited that the difficulty here is that the motivational test is usually discerned by looking at the legislative history here is nothing that one would traditionally think of his legislative history to look at here there are no congressional reports no hearing good committee hearing reports we have only the statement of the sponsor of of this legislation that was stuck in one year ago today in must pass legislation that passed four days later and the statement of that to quote unquote threat an alarming national security vulnerability claimed that congress had serious doubts about the company and said that she would introduce legislation quote hearing there was never a hearing on this bill but i guess first there were there were multiple hearings over many months on questions of cybersecurity and russia in particular at which questions were allowed mainly questions asked of witnesses whether they would put it on their own computer some government witnesses said no they wouldn't some of the government's witnesses that they would but there isn't and there were no hearings 's that the materials that congress had before it aren't don't support from the scope breath and permanence of the legislation that was passed whether i guess i thought you were saying that there's no legislative history on this bill except the sponsors statement when she introduced it but in fact i'm saying there seems to be quite a bit it was late in prior hearings there's a legislative record in which on for a few questions or a few answers there's discussion of implicit in your argument is your view of imbalance which i think is interesting it's obviously self serving but i don't know why it's correct you think the magnitude of the burden is significantly  greater than the non punitive purpose and i must say intuitive way i think that's wrong given the world in which we live and human concern or national concerns about russian intrusion ability of the prohibition on her in influencing our results if if the situation changes going forward we don't have the faintest idea what the risk if section sixty thirty four a said that judge edwards that this would be prohibitions on confederates serving as priests or his attorneys or communists were serving or three of those cases with a significant imbalance that almost everyone would agree was there i don't think everyone begin to agree with you that there is an ob my understand your honor i see money why don't i just trust you have sort of a big picture question when you just read if you just read all the supreme court cases that have found something to be a  if you look at all of them together this for supreme court cases two from civil war period two from the cold war and those all found bill of attainder that they were all situations they all know of human beings you know a flesh and blood person agencies to buy this product because of the threat to the integrity of computers it's just a totally different situation it's hard to fit this case into that you know i mean you can take these for tests i'm sorry  and you know you can take the language of the tests you can make them come out your way by how you describe them but when you step back and look at the big picture this isn't anything like the scale i would respectfully disagree here on her in the in the the the post civil war cases you had situations in which legislatures federal and state considered certain persons disloyal and on the worry of  individuals in that the it's it's equally based on behavior here and it as this court has assumed in bell south and its sister circuits if you could in other cases the bill of attainder clause was applied to corporations no question about that i agree with that as just making a point that i be i wasn't making a point that doesn't apply to cooperate with us it's just making the point that it's really hard to fit this case into a company of a class of one a russian based company with headquarters and services in russia with deep connections to russian intelligence and you haven't identified any other company like that so we have your honor reply brief we've listed every we've because this case was decided if a pleated pleading stages we have not had the opportunity to engage in discovery and we've cited a reply brief several in depth reports performed by reuters that show that all the other major russian intelligence the headquarters based in moscow is not cited by the government as a basis for its decision and the deep connections the so called the connections to russia intelligence are speculation but most what the government has pointed to is that eugene kaspersky graduated from a school thirty years ago that was in part funded by the russian military he served in the russian military and he has friends who are still in the russian intelligence and military community the primary the fact that we pled since this case was decided at the pleading stage which would have been able to address that this case was decided at the pleading stage where we have one of the reputation good morning your honour's may it please the court and lewis yelling from the department of justice i'm here today on behalf of the federal defendants your honour's there's no real question that federal computers all are vulnerable to russian cyber attack and congress enacted legislation to address that vulnerability the root the statute that congress and acted addresses the vulnerability in general terms and it presses a specific reason or ability that congress that the congress you know a bill of attainder analysis legislators narrowly as possible congress could reasonably believe based on the evidence that was before it that a complete ban was essential to protect the national security of  the united states computers the question is not whether in fact that determination is true the question is whether congress reasonably could have believed that it was true it could based on the evidence it received one hundred fifteenth questions the court has but i don't have affirmative points that i feel are need but what's your response to mr christiansen's argument that congress should have just passed a much broader statute that capture the characteristics of this company regulatory steps against the jurisprudence simply does not require that and nixon absolutely clearly recognizes that when congress legislates to address a very specific problem that is simply not a bill of attainder in virtue of its sixteen thirty three and section sixteen thirty four c section sixteen thirty three requires all quires the executive to develop a policy concerning cybersecurity section six hundred thirty four c requires a review and report regarding procedures for removing suspect programs on federal computers section six hundred forty three excuse me thirty four a is the provision that's at issue here and it is directed specific to this because for ski products on u s computers and that's because congress had before it evidence that kaspersky products pose a unique threat to federal government computers so congress just doesn't nexen legislated generally to protect the government against a general threat and specifically with respect to a specific threat that congress perceives so sixteen thirty three could be the basis for executive were no hearings on this bill right what what when we write our opinion one way or another here what sources of evidence can we work to understand the  shows congress purpose and i think it is on its face obvious that congress had a proper regulatory purpose in mind that said i also think it's entirely proper to consider the broader legislative record that was before the hundred  fifteenth congress the question is not one of statutory interpretation where courts look to legislative history when they do look to legislative history regarding a particular statute the question is what congress is purpose was in acting a ago the hundred fifteenth congress the congress that are now acted this statute had multiple hearings with testimony from multiple executive branch officials about russian cyber attacks in general and about the attainder cases look more generally to the context of legislation and i think it's a fair description to say the hearings and testimony and even correspondence between members of congress and agencies seeking information is relevant to directive i also don't believe that's right you're at the court in the directive the principle holding was that the matter was not just a shabelle because sixteen thirty four is a broader statute than the directive itself and homeland security secretary was made and for all those to a certain extent your honor the congress had testimony from homeland security officials about homeland security's directive  legislative record here and to the extent that was there it was harmless error for the reasons we point out in our brief project what about gentilly i beg your pardon gentilly backward i don't remember that being relied on your honor if  if this is critical for the court's analysis i'd be happy to follow up i'm sorry i just don't recall the reliance there we do explain that the man for declaration point to which the district court rely was entirely depleted of other evidence the congress had before it in the first place and in the second place it wasn't the district court did not rely on it to support its affirmative case that that is its holding but to respond to an argument  counter argument that kaspersky had itself raised rather than sort through that would not be more appropriate or at least more direct for this court to look to the record heard relying on some public sources question before us i think is not whether that was correct or not but whether we can come to a conclusion with our yard yes or no that's entirely accurate our brief at thirty six and also one through thirteen identifies the purely legislative material that one hundred fifteen congress considered that legislative material is more than sufficient to support a conclusion that congress reasonably determined that kaspersky poses a unique threat and required very specific legislation to respond to that unique threat to judge edwards question that we were just talking about and judge ginsburg this question the district court didn't properly rely on the summary judgment record in ace what the district court called a separate and should prevail on its procedural arguments we would also ask the court to consider the request for a stay since section sixteen thirty four it goes into effect in two t we've we've alleged and briefed your honor that the district court did not consider a procedural claim for relief in the b o d complaint that the addition to this is that why wouldn't it be