Huawei Sues The US For Equipment Ban But Must Differentiate Case From Kaspersky Proceeding

Huawei sues the US for equipment banPhoto By: Open Grid Scheduler / Grid Engine/Flickr

Huawei Technologies, Chinese telecommunications equipment maker, is suing the United States over a law signed by President Donald Trump. The issue is the latest event on the on-going trade war between Huawei and the USA.

Huawei is one of the world’s leading telecommunications companies and wants to be on the forefront in the roll-out of the up and rising 5G technology. But, it is consistently in crosshairs with the US government under speculation of national security.

The US was sued Thursday in a federal court in Texas challenging Section 889 of the National Defense Authorization Act (NDAA), signed into law on August.

The law briefly states that it blocks any Chinese-made surveillance and telecommunications equipment from being used in any executive agency, and also all government contractors. The bill mentions explicitly Huawei Technologies, ZTE, as well as some other Chinese companies.

Huawei argues that they were unjustly singled out as a company who proposes a threat to US national security, much more any other government agency.

In its lawsuit, Huawei said that its “equipment and services are subject to advanced security procedures, and no backdoors, implants, or other intentional security vulnerabilities have been documented in any of the more than 170 countries in the world where Huawei equipment and services are used.”

“Consumers in the United States (particularly in rural and poor areas) will be deprived of access to the most advanced technologies, and will face higher prices and a significantly less competitive market,” the company said in the complaint.

Reports say that US authorities have long put Huawei under scrutiny and that their 5G technology is a threat to national security, centering on a 2017 Chinese law requiring companies to cooperate with domestic intelligence work.

“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,” Huawei Rotating Chairman Guo Ping said in a statement.

The company says that the provision is a bill of attainder, a legislative punishment or the unconstitutional creation of policies punitively targeting a small group or company without undergoing due process.

“This ban not only is unlawful but also restricts Huawei from engaging in fair competition, ultimately harming U.S. consumers. We look forward to the court’s verdict,” said Guo.

“The U.S. Government is sparing no effort to smear the company and mislead the public,” said Guo in a news briefing at Huawei’s headquarters in southern China.

Chinese foreign ministry spokesman Lu Kang said he had no information on whether China’s government may also seek legal action against this US law, but added Huawei’s move is “totally reasonable and understandable.”

Some legal experts, however, said Huawei’s lawsuit is likely to be dismissed because US courts are reluctant to second-guess national security determinations by other branches of government.

Moreover, like the case filed by Huawei, a federal appeals court rejected a lawsuit filed by Russian cybersecurity firm Kaspersky Labs.

In September 2017, the US Department of Homeland Security directed agencies to stop using Kaspersky’s anti-virus software based on concerns that the Russian government could use the programs to spy on federal information systems.

The Texas court hearing Huawei’s case will not be bound by that decision, but will likely to adopt its reasoning because of similarities in the two disputes, said Steven Schwinn, a professor at the John Marshall Law School in Chicago.

Huawei will need to figure out how they could differentiate themselves from the Kaspersky case if they want to hear a different ruling on their case.

The situation escalated after Meng Wanzhou’s case against Canada. Meng was allegedly illegally detained while at the Vancouver International Airport by Candian officials requested by the US government.

The United States accuses Meng of bank and wire fraud related to breaches of trade sanctions against Iran. Canada approved extradition proceedings on March 1, but Meng has since sued Canada’s government for procedural wrongs in her arrest. The next court hearing is set on May 8.

The reaction, China accused two Canadians of stealing state secrets and blocked Canadian canola imports.

Meng is under house arrest in Vancouver. It is unclear where the two Canadians are being detained in China, and at least one does not have access to legal representation.

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