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a declaratory judgement from the District Court in Plano that these restrictions are unconstitutional and should be rescinded because they violate the Bill of Attainder Clause and the Due Process Clause in the Constitution.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.”

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