US government ban unconstitutional, says Huawei
Huawei’s lawsuit accuses Washington of violating the US Constitution by banning it from government contracts
Huawei has filed a lawsuit in a Texas court claiming that the US ban on the use of the Chinese networking suppliers’ equipment within US government agencies violates Section Nine of the US Constitution.
The case will hinge on section 889 of the 2019 National Defence Authorisation Act (NDAA), which also bars US government agencies from contracting with or awarding grants or loans to any third parties who buy from Huawei – this effectively bars the firm from any significant network in the country.
Huawei is seeking a declaratory judgement from the District Court in Plano that these restrictions are unconstitutional and should be rescinded because they violate the Bill of Attainder Clause and the Due Process Clause in the Constitution. It claims this means it has effectively been tried and found guilty without a trial.
The lawsuit also says the US government is violating the separation of powers principles enshrined in the Constitution because Congress is both making the law, and attempting to adjudicate and execute it.
“The US Congress has repeatedly failed to produce any evidence to support its restrictions on Huawei products. We are compelled to take this legal action as a proper and last resort,” said Huawei rotating chairman Guo Ping.
“This ban not only is unlawful, but also restricts Huawei from engaging in fair competition, ultimately harming US consumers. We look forward to the court’s verdict, and trust that it will benefit both Huawei and the American people.”
Song Liuping, Huawei’s chief legal officer, added: “Section 889 is based on numerous false, unproven and untested propositions. Contrary to the statute’s premise, Huawei is not owned, controlled or influenced by the Chinese government. Moreover, Huawei has an excellent security record and program. No contrary evidence has been offered.”
International controversy
Huawei has found itself at the centre of an international controversy as western countries, including the UK, reassess their use of its equipment in critical national network infrastructure.
Many claim that under clauses in Chinese law, Huawei can be forced to put backdoors in its software and equipment on behalf of the Chinese intelligence services, something the company strenuously denies. In the past, the US government has been accused of doing exactly the same thing.
In remarks made earlier in March, US secretary of state Mike Pompeo said: “Huawei is owned by the state of China and has deep connections to their intelligence service. That should send off flares for everybody who understands what the Chinese military and Chinese intelligence services do. We have to take that threat seriously.”
Pompeo had previously made thinly veiled threats against US allies that using Huawei equipment could lead to suspension of military and intelligence cooperation, and could even have diplomatic consequences.
In the UK, the National Cyber Security Centre (NCSC) has signalled that it will indeed take a softer line on the use of Huawei’s equipment.
In remarks made at an event in Brussels, NCSC CEO Ciaran Martin said he had confidence in the NCSC’s oversight of Huawei: “Because of our 15 years of dealings with the company, and 10 years of a formally agreed mitigation strategy which involves detailed provision of information, we have a wealth of understanding of the company.
“It is not in any sensitive networks – including those of the government. Its kit is part of a balanced supply chain with other suppliers. Our regime is arguably the toughest and most rigorous oversight regime in the world for Huawei, and it is proving its worth.”
Damaging competition
Huawei said the NDAA restrictions stopped it from offering more advanced 5G technology to US consumers, making networks more expensive, delaying their roll-out, disadvantaging the US economy, and widening the already-significant digital divide within the US.
It claimed that allowing it to fairly compete would cut the cost of wireless infrastructure by between 15% and 40%, saving the US $20bn between now and 2023.
“If this law is set aside, as it should be, Huawei can bring more advanced technologies to the United States and help it build the best 5G networks,” said Ping.
“Huawei is willing to address the US government’s security concerns. Lifting the NDAA ban will give the US government the flexibility it needs to work with Huawei and solve real security issues.”
Read more about the Huawei affair
March 2019:
- US secretary of state Mike Pompeo has reinforced his attacks on Huawei as the firm apparently prepares to sue the US government over its federal-level ban.
February 2019:
- US secretary of state Mike Pompeo has said America may scale back or cut military and diplomatic ties with countries that use Huawei equipment in national 5G networks.
- NCSC CEO uses cyber security conference in Brussels to set out his agency’s position on Brexit, 5G security, Huawei, market incentives and international cooperation on active cyber defence.
- A think-tank report has branded the UK government naïve at best, irresponsible at worst, over its use of Chinese networking equipment in critical national infrastructure.
- Huawei CEO Ren Zhengfei has taken a more combative stance in the ongoing row over the firm’s alleged links to the Chinese intelligence services.
- The UK’s National Cyber Security Centre suggests Huawei will be allowed to form core elements of the country’s 5G mobile network infrastructure after all.
- Huawei’s Ryan Ding tells the British government that the company has never, and will never, use its technology to assist the Chinese intelligence services.
- Malaysia has become the latest country to look into the security concerns surrounding Huawei, which has been accused by mostly western powers of conducting corporate espionage.
January 2019:
- Vodafone’s UK CEO has said the operator will “pause” its use of Huawei hardware for the foreseeable future.
- The chair of the cross-bench Science and Technology Committee has written to Huawei seeking answers over its activities in the UK.
- Huawei’s rotating chairman Guo Ping outlines the firm’s priorities to optimise its product portfolio, empower employees and build a more resilient business structure.
December 2018:
- While the number of countries with Huawei bans in place grows and more issue warnings, a German investigation found no evidence of spying to support the fear.
- The Chinese government has called for the release of Huawei chief financial officer Meng Wanzhou, who was detained in Canada at the weekend.
- BT will remove Huawei’s networking equipment from the core of EE’s 4G mobile network.
