back to article Truth, Justice, and the American Huawei: Chinese tech giant tries to convince US court ban is unconstitutional

Huawei is trying to have a key part of American lawfare against the Chinese company thrown out by a US court – on the grounds it breaks the United States constitution. The telecoms kit manufacturer is arguing that section 889 of the National Defence Authorisation Act (NDAA) 2019 is unconstitutional under US law because it …

  1. Yet Another Anonymous coward Silver badge

    So only Huawei is a Chinese spy ?

    Motorola and Lenovo are as American as when they were American?

    If this is a national security ban then it applies to all Chinese phone makers, not just ones that Trump thinks have funny spelling.

    1. Anonymous Coward
      Black Helicopters

      Re: So only Huawei is a Chinese spy ?

      As reported in this article, this should fail at the first hurdle.

      Why??

      As reported in El Reg recently, The USA has also withdrawn the licence for China Telecom to continue operating in the US for exactly the same reason they have banned Huawei.

      Kudos to Huawei for taking on Trump in the courts though, he has such a history of losing, that even if 100% innocent, the courts might give judgement against him.

      Of course he isnt innocent, and has already shot down the security argument himself, by saying he would reconsider the ban if China agrees to a new trade agreement.

      I have had sightings of this copter ever since getting a silent call from an Iranian phone number last week .

    2. NullReference Exception

      Re: So only Huawei is a Chinese spy ?

      The law as written specifically names ZTE, Hytera, Hikvision, and Dahua in addition to Huawei. It also covers any telecommunications equipment "produced or provided by an entity that the Secretary of Defense... reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country". The only "covered foreign country" is China.

  2. Tom 35

    They put a tariff on Canadian steel as a security threat

    So they are not even trying.

    1. Yet Another Anonymous coward Silver badge

      Re: They put a tariff on Canadian steel as a security threat

      But then they put a tariff on all foreign steel from allies - so could "reasonably" claim that they were doing this to support domestic makers in case they needed steel for tanks

      If they had put a steel tariff only on Mercedes because Trump thought that his voter base hated Germans, then it might be a little trickier to defend in court.

      1. TDog

        Re: They put a tariff on Canadian steel as a security threat

        If you need steel for tanks then you are making a hell of a lot of them, at about 50-60 tons each. and you are using the wrong defensive armour model as well. (no more than 5000 and only 60 tons each).

        1. This post has been deleted by its author

  3. A phone for Engineers BY Engineers

    Deepest pockets?

    The cost of litigation in the USA IS a level playing field, I m backing China on this one.

    1. Ken Hagan Gold badge

      Re: Deepest pockets?

      An interesting choice of phrase, there. "China" isn't yet the target of the ban. However, if the court decides that Trump is picking on Huawei then the likely follow-up would indeed be the extend the ban to all Chinese companies on the (not unreasonable) grounds that they are subject to Chinese law in the same way that US companies are subject to US law. We *know* that US companies can be compelled to perform actions in secret for the US government and it is inconceivable that Chinese companies cannot be leant on in similar fashion by their own government.

      Basically, you can't trust *any* foreign company if you can't trust their government. You never could. The only new feature here is that the US has pumped so many dollars into China over the past couple of decades that it now finds itself dependent on Chinese companies in a way that it was never dependent on Soviet ones during the Cold War.

      1. Yet Another Anonymous coward Silver badge

        Re: Deepest pockets?

        This is possibly what Huawei are banking on. If the ban is for reasons of national security then it has to extend to all Chinese companies, so police/fire/paramedics are going to have a lot of Motorola radios to replace and a lot of federal offices are going to be forced to dump a lot of Lenovo PCs

        Wen the $tn bill and years to replace all this public service kit comes in - there will be a lot of political pressure to drop the ban.

      2. sabroni Silver badge
        Facepalm

        Re: "China" isn't yet the target of the ban

        Yeah, right.

  4. Mike Lewis

    Opposite Day

    So the Chinese are trying to protect the US constitution from the US government.

    1. Chris G Silver badge

      Re: Opposite Day

      Somebody needs to, from what I have read, the US government has been nibbling away at the constitution more or less since day one. The Patriot act did it no favours.

      1. Anonymous Coward
        Anonymous Coward

        Re: Opposite Day

        That's irony.

        But the Yanks won't get it though ;)

    2. JoMe

      Re: Opposite Day

      No, they're trying to leverage American sentiment against Trump to pervert the right of the government to protect itself from spying. Replace China with Russia and Huawei with *insert Russian spyware here* and see how many frothy mouthed democrats demand that Russia be given the boot.

      1. Anonymous Coward
        Anonymous Coward

        Re: Opposite Day

        why would russia need any spyware, they have an agent in the whitehouse?

        1. JoMe

          Re: Opposite Day

          You have evidence of an agent in the white house?? Well spit it out man, I'm sure Mueller would love to see it, because he certainly hasn't got anything solid enough to open a case using anti-trump judges!

  5. Jim Mitchell

    https://www.heritage.org/constitution/articles/1/essays/62/bill-of-attainder

    has

    "The Court devised a three-part test to determine when a piece of legislation violates the Bill of Attainder Clause: such legislation specifies the affected persons (even if not done in terms within the statute), includes punishment, and lacks a judicial trial. Because of the Court's relatively narrow definition of punishment, however, it rarely, if ever, invalidates legislation on this basis. For example, the Court has held that the denial of noncontractual government benefits such as financial aid was not punishment, Selective Service System v. Minnesota Public Interest Research Group (1984), nor did an act requisitioning the recordings and material of President Richard M. Nixon and several of his aides constitute punishment. Nixon v. Administrator of General Services (1977). Exclusion from employment, however, is a form of punishment. United States v. Brown (1965)."

    So it seems that Huawei's case hinges on whether this bill qualifies as "punishment".

    1. Smody

      " the affected persons".... "Corporations are people, man!", proclaimed by Romney, and confirmed by the Supreme Court.

      I think the specific wording in the Constitution is moot. The document has been "interpreted" into contradictory insanity.

  6. Doctor Syntax Silver badge

    "an unsubtle move"

    The best way. Subtlety isn't going to get through.

    1. Anonymous Coward
      Anonymous Coward

      As far as I was lead to believe, the Americans don't do subtle. It's a lost language on them.

      Like the aforementioned irony...

      And moral integrity...

  7. Demosthenes Locke

    If denial to provide financial aid is not "punishment", then declining to do business with a foreign corporation determined to not have the best interests of their customers in mind is also not "punishment". It is nothing more than saying "We choose to take our business elsewhere. Now get off our lawn." The rest, "...or I'll part your hair with a shotgun. Now GIT!" is implied and doesn't need saying out loud.

    1. Anonymous Coward
      Anonymous Coward

      You forgot to add:

      ... and then you get off his lawn, he blackmails all the neighbors into not letting you on their lawn either. And once that's done, he gets all the neighboring countries to ban you from their lawns too.

      Why? Because you are a danger and a threat to lawns.

      Of course, remove retalitory tariffs, and the threat you pose is magically removed, and you are welcome on the lawns once more.

      .. heard the word "ectortion"?

  8. Nathar Leichoz

    This is the type of thing the TTP was supposed to enable. It was supposed to allow companies to sue foreign governments if they felt the government was unfairly stiffing competition. It allowed companies like Nike to sue the Thailand government if the Thailand government wasn't doing enough to crack down on counterfeiters or if the government was giving unfair advantage to local brands.

    Perhaps other countries who initially joined the TTP are watching this right now. The outcome will set a precedent.

  9. Maelstorm Bronze badge
    Big Brother

    Go Pound Sand

    This is like Kaspersky suing the US government because the US government refuses to do business with them on grounds of National Security. I see this going the same way.

    https://www.theregister.co.uk/2018/11/30/court_rejects_kaspersky/

    Basically, the court says that the US government can ban a product if the government has legitimate security concerns. Considering that the US Government's networks are being attacked on a daily basis by Russia, China, and others, and the revelations that products coming out of China are spying on people (Lenovo keystroke loggers? Supermicro server board spy chips?), I believe that the court's response will be the same as the response in Kaspersky's case: Go pound sand because we don't want you here.

    Remember folks, China is KNOWN for spying....

    1. Steve Davies 3 Silver badge
      Facepalm

      Re: Spying

      Remember folks, China is KNOWN for spying....

      And the USofA isn't?

      Everyone spies on everyone else. Has done since the early 1880's if not before.

      1. DavCrav

        Re: Spying

        "Remember folks, China is KNOWN for spying....

        And the USofA isn't?"

        Sure, but irrelevant. If A spies on B and B spies on A, it's still reasonable for A to ban B's companies from its own networks because of the spying. Then B can do the same, but they don't really have a leg to stand on to complain about the original ban.

      2. Chris G Silver badge

        Re: Spying

        The allegations of spying are more about providing just cause for the record, the reality is the bringing down of a serious competitor to American business.

      3. Claptrap314 Silver badge

        Re: Spying

        1880's? Dude... Ever hear of the Caesar cypher? Know who invented it? Know why? Ever read about the reception that King David's emissaries received when they went to the funeral of his friend? As long as there have been governments, there have been spies.

        There are two differences here. 1) Historically, a lot of Chinese spying has been government support of industrial espionage. This continues, and is an extreme example of unfair competition. 2) The official policy of the Chinese government is that their entire society is to be directed towards this end.

        As I have continuously said, to do business within the territory of government X, you have to comply with the rules of government X. If I were defending the government's position without resorting to separation of powers & the like, I would just take these official declarations and say, "we expect that all Chinese companies are abiding by these declarations".

      4. CrazyOldCatMan Silver badge

        Re: Spying

        Has done since the early 1880 *BC*

        There. FTFY.

        (The Romans were fairly good at getting people to spy for them. And the Bible records the Israelites sending spies into Jericho. And various documents record the pharoahs sending spies/agents into the countries around them or paying allies to provide intelligence)

    2. Aladdin Sane

      Re: Go Pound Sand

      Supermicro claim dealt with here.

    3. BigBear

      Re: Go Pound Sand

      Maelstorm's argument is exactly correct. US law — and the US Constitution, under the Foreign Policy umbrella — gives the Executive Branch wide latitude in the area of national security, so long as there is some “rational basis” for it. It further grants the Legislative Branch authority to codify “rationally based” solutions to national security concerns identified by Executive Branch agencies, such as the FBI, CIA, or NSA. Maelstorm's argument is part of that rational basis.

      I doubt that the Court will require any concrete evidence that Huawei has engaged in any suspect behavior. The most that the Court might require is the sworn testimony by appropriate experts that Huawei is, by the nature of the Chinese government, controlled by the Chinese government which, by policy and historic precedent, uses technology for spying and technology theft and, therefore, Huawei might be forced to insert “backdoors” or other security vulnerabilities into its products for use by the Chinese government.

      The Court is extremely unlikely to require any proof to support the testimony of previous Chinese spying or of Chinese government control over Chinese companies, as that would require disclosure of Classified information, including sources and methods.

      Other than knowing that the legislation’s “rational basis” was derived from consultations with intelligence agencies, the Court could legitimately simply accept the legislation without further testimony, based on Congress’ inherent authority, and thus dismiss the lawsuit.

  10. YetAnotherJoeBlow Bronze badge

    In the end...

    Who would you rather be, a Chinese company fighting in the US courts, or a US company fighting in the Chinese courts?

    1. Kabukiwookie Silver badge

      Re: In the end...

      20 years ago the answer would probably have been a US court.

      Now my expectation (from observed behaviour) is that both courts would be equally stacked against me.

      So neither would be better than the other, which is a sad indictment of the US government and how it has run rampantly amok since the 11/9 incident.

      Om the other hand. If the question would be, who would you prefer to do business with, the answer would be China.

      Political elites in the US are driving the country of a cliff. Normally even that wouldn't bother me too much, but the US has nukes and apparently a lot of unscrupulous people in positions of power who are already literally killing people in foreign countries to make a dollar.

  11. sanmigueelbeer Silver badge
    Facepalm

    Motorola and Lenovo are as American as when they were American?

    Lenovo was never "American". It has always been a Chinese-owned and operated.

    Who would you rather be, a Chinese company fighting in the US courts, or a US company fighting in the Chinese courts?

    In China, you can pay a party official and get favourable outcomes. In the US ... oh, wait.

    1. Anonymous Coward
      Anonymous Coward

      Seriously - Never American

      True, Lenovo the company is from Hong Kong; but Lenovo the brand is from technology developed by IBM and sold to them.

  12. Bruno de Florence
    Happy

    Enlightened by Mao's thought, Huawei will vanquish the Trump capitalist roader paper tigers.

  13. TheJokker

    China the bully...

    America opened our markets to China and invested billions and billions of dollars helping them expand their manufacturing base as a gesture of goodwill and friendship. In return China has betrayed that friendship by stealing our technology and breaking trade rules they agreed to when they joined the WTO. They are intimidating militarily their regional neighbors and is actively seeking to restrict movement in international waters. China has mistaken America's kindness and generosity as weakness.

    Unless they clean up their act fast China will learn what it means when it is said that America is either a best friend or a worse enemy...

    1. DButch

      Re: China the bully...

      US companies, including two major high tech companies I have worked for, have no concept of goodwill and friendship. They went very willingly to China to take advantage of the much lower cost of manufacturing there. They willingly accepted China's quid pro quo of - "put some engineering R&D in China if you want to actually sell your goods in China" as part of the deal. As someone at another blog said: "China didn't steal US jobs. US companies lined up to give the jobs to China." Now, China is an aggressive actor. But the US is not in a really good position to criticize given our own actions of the past few decades.

      ed - bit of punctuation cleanup

    2. Yet Another Anonymous coward Silver badge

      Re: China the bully...

      Funnily enough that's exactly what Britain said about America a century ago

    3. Kabukiwookie Silver badge

      Re: China the bully...

      helping them expand their manufacturing base as a gesture of goodwill and friendship.

      Is this a serious post? Friendship?

      You mean that making billions of dollars by outsourcing manufacturing has nothing to do with this?

  14. Anonymous Coward
    Anonymous Coward

    Tariff cash cow

    The ban on Huawei is just a way of extending the Trade war with China.

    This is how much they made when it was only 10%.

    Delay the tariff increase for 90 days to find another way to extend the tariffs.

    Just a week before the US was about to negotiate a deal with China. They decide to hit Huawei, effectively ruining the chances of any deal and increasing the tariffs. Delay the ban 90 days (see a pattern here?) to lessen the effect and give it time to go court, which will drag out for years and further delay the negative effects of the ban.

    Trump gets a stealth tax on the poor to pay for his tax cut to the rich well into 2020. He will then have a new enemy to stoke hate for now that his separating parents from their children shtick isn't playing so well.

    1. Yet Another Anonymous coward Silver badge

      Re: Tariff cash cow

      You have to admit that whatever AI is secretly controlling him is brilliant.

      Getting millions of poor people to pay extra taxes on their dollar store crap to fund a $Tn in tax cuts for billionaire hedge fund managers and then have them thank you for being a great patriot for doing it

  15. bombastic bob Silver badge
    Mushroom

    They must think we're gullible 'marks' in a game of 3 card Monty

    or a shell game, or any kind of 'con job'

    How insulting. I hope it costs them ZILLIONS in legal fees and they get sent home, packing, with their tails between their legs.

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