Chinese telecom giant Huawei — the largest manufacturer of telecom equipment in the world, and the second largest maker of smartphones in the world — is reportedly planning to file a lawsuit against the U.S. federal government over its ban on the use of Huawei products by federal employees.
The New York Times reports that Huawei is preparing to file suit in the Eastern District of Texas, where Huawei keeps its American headquarters. The lawsuit would argue that the federal ban is a “bill of attainder,” or a piece of legislation that punishes an individual or organization without trial. Huawei would likely be arguing that banning federal employees from using its phones and products without offering proof that they pose a danger is unfair punishment.
The lawsuit would be an uphill battle. Kaspersky Lab, a leading cybersecurity company based in Moscow, Russia, faced a similar ban by the federal government starting in 2017, and sued the feds, claiming the ban was a bill of attainder. A judge in the District of Columbia dismissed the suits in May 2018. “These defensive actions may very well have adverse consequences for some third parties,” wrote U.S. District Judge Colleen Kollar-Kotelly. “But that does not make them unconstitutional.” In the case of Kaspersky Lab, the ban was seen as protecting the national interest rather than trying to punish Kaspersky, and regardless, it wasn’t much of a punishment at all — U.S. federal contracts made up only a tiny percentage of Kaspersky Lab’s total revenue.
The lawsuit comes in the midst of a broad campaign by the U.S. intelligence community against Huawei, starting with a 2012 congressional report calling Huawei (and much smaller Chinese telecom manufacturer ZTE) a “threat to national security.” That rhetoric has been ratcheted up since the Trump administration has taken office, and especially as former CIA director and current secretary of state Mike Pompeo has assumed a stronger role in shaping foreign policy.
In February, Pompeo directly warned American allies: “If a country adopts [Huawei] and puts it in some of their critical information systems, we won’t be able to share information with them, we won’t be able to work alongside them … We won’t even be able to co-locate American resources, an American embassy, an American military outpost.”
It’s possible that actually winning the lawsuit is secondary to Huawei’s chief goal in filing. Rather, it may be hoping to force the federal government to offer proof in open court that Huawei presents a national security risk. One of Huawei’s chief complaints has been that the U.S. has not offered proof to date that the company has worked with the Chinese government to spy on American citizens. “I believe the U.S. government does not have evidence that the China government is using Huawei equipment to conduct surveillance around the world or anywhere,” says Huawei’s chief security officer, Andy Purdy. “I do not believe the U.S. government has evidence of that.
From the information available in the public domain, the U.S. case against Huawei boils down to two factors: it has settled out of court on several different counts of IP theft, and it’s a large foreign company which could either willingly or unwillingly be used to spy on Americans. It’s not a completely unfounded fear; not only does a 2017 Chinese law give its intelligence apparatus broad powers to compel Chinese companies to help in matters related to the Chinese national interest, but the United States itself did the same thing under the PRISM program, forcing companies like Microsoft, Google, and Apple to spy on both foreign and domestic citizens starting in 2007.
Seen in that light, Huawei may not care whether or not a federal worker in Arlington can legally buy and use a Huawei P20 or Mate 20 Pro. Instead, it’s part of a much broader push by the company to defend its reputation internationally. As the U.S. attempts to apply pressure on its allies to not use Huawei telecom equipment during the global rollout of 5G over the next decade, Huawei is attempting to make the U.S.’s case seem based more on fears about what could happen, rather than on concrete proof about what Huawei has done.
And it seems to be working. A story last week in The Wall Street Journal out of MWC Barcelona, the largest conference for mobile and telecom vendors in the world, followed a small group of American officials as they attempted to make their case about why other countries shouldn’t buy Huawei telecom equipment.
While Huawei had large booths scattered throughout the conference, including a “a spacious outdoor garden” featuring “hundreds of guests eating fresh grilled food, bottled smoothies, and Chinese noodle dishes,” U.S. officials were forced to borrow a booth from conference organizers. Huawei held slickly produced roundtable discussion in an upscale hotel fighting back against U.S. accusations, while the U.S. delegation had to borrow a booth from MWC Barcelona organizers for its own press conference, which officials “conducted without a podium or microphone, sometimes struggling to be heard over the conference din.” While hundreds of Huawei employees strolled MWC Barcelona wearing Huawei’s distinctive lotus flower logo on badges, U.S. officials had to borrow lanyards from Ericsson and IBM to gain entry.
By the end of the conference, Huawei had signed multiple deals with countries across the globe, including the Saudi Telecom Company, Vodafone Spain, Swiss mobile carrier Sunrise, and United Arab Emirates’ state-owned telecommunications company, Etisalat. The UAE deal in particular was seen as a rebuke to the U.S. pressure — the UAE has been one of the U.S.’s closest allies in the Middle East. As more countries make their choices about who will supply their 5G infrastructure — and with Huawei being the only company to currently offer a complete suite of 5G infrastructure equipment — it’s likely even more countries will soon follow suit.
