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Friday, 08 March 2019 10:42

As with Kaspersky Lab, Huawei case will end in a loss

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As with Kaspersky Lab, Huawei case will end in a loss Pixabay

Chinese telecommunications equipment vendor Huawei Technologies is unlikely to win the case it has filed against the US Government, given that the latter generally wraps any action it takes against foreign companies in the mantle of national security.

Huawei sued the US on Thursday, challenging section 889 of the National Defence Authorisation Act, which it said unfairly discriminated against it and prevented it from operating in the US.

One of the company's arguments is that the ban on its products is a “bill of attainder” - a legislative act that condemns a particular person or group of people and punishes them with no trial. Bills of attainder are banned by the US constitution.

A second allegation made by Huawei is that its rights to due process have been violated. The argument being made is that Congress has violated the constitutional principle of separation of powers by acting as judge, jury and executioner.

The same arguments were used by Kaspersky Lab, when it was banned from doing business with the US Government. The company lost its case, appealed and then had the appeal rejected. It took about two years for the entire process to be gone through.

The Kaspersky case took place against the background of allegations of Russian interference in the US presidential elections of 2016. Additionally, the mainstream US media — the Washington Post, The New York Times, and The Wall Street Journal — all carried anonymously sourced stories, claiming that the company was connected to Russian spying in the US.

In the case of Huawei, there have been no stories about spying. There have been reports about other alleged transgressions by the company — reportedly violating US domestic sanctions on Iran and stealing trade secrets — which have nothing to do with security.

But given the general atmosphere fanned by the US Government and media over China in general, and the fact that anything — last month it was German cars — can be cited as a threat to national security, the case is likely to only go one way.

Then why would Huawei sue? Former NSA hacker Jake Williams had this to say: "If I were Huawei I'd be suing too. While I doubt it will be successful, it is likely to force the government to, at least, discuss whether their concerns are concrete or theoretical.

"The outcome won't likely change US policy, but may take the teeth out of the 'if the US is blocking Huawei equipment, we should too' argument."

Huawei is likely to benefit from the case only if it gets past the motion to dismiss as it will then be able to ask for documents from the government and even ask officials to testify.

But that is unlikely to happen because the court would then have to question Congress' right to place such a ban in a national defence bill. And that is sacred territory.

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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