Huawei takes US to court, claims ban unconstitutional

Shenzhen, China – Huawei Technologies, China’s telecommunications giant, said on Thursday it filed a lawsuit against the United States for banning government agencies, employees and contractors from using Huawei equipment as the company attempts to fight back against perceptions that it is a tool used for spying by Beijing.

Speaking to reporters in the southern city of Shenzhen, Huawei Chairman Guo Ping called the ban “unconstitutional” and declared that the company “never installed back doors and never will install back doors” in its equipment.

Guo said the US government had “misled the American public” regarding Huawei, and “never presented evidence” regarding its allegations against the company.

The ban came into effect last August as part of the Defense Authorization Act, which also placed similar restrictions on fellow Shenzhen-based telecoms equipment company ZTE.

“It is an abuse of the US lawmaking process, this strips Huawei of its due process … and goes against the very nature of the Constitution,” Guo said.

Huawei said it filed the lawsuit in the Eastern District Court in Plano, Texas where it has its US headquarters. The suit claims the company has been singled out for punishment without a chance to defend itself by a legislative act of Congress that could be considered unconstitutional, the so-called “bill of attainder”.

‘Public relations ploy’

While the move may force the US government to provide more details on the ban, most legal analysts see the action more as a public relations gambit for Huawei, which has found its global image shattered over the last year amid increasing scepticism about its close ties to the Chinese government.

“It’s a good public relations ploy for Huawei for various reasons,” said Jerome A Cohen, a New York University law professor and Council of Foreign Relations senior fellow.

“Although unlikely to win the suit, it may cause the US to reveal more data and spell out arguments for the exclusion of Huawei,” Cohen said. “I don’t think the bill of attainder gambit will work [however].”

Christopher Balding, an associate professor at the Fulbright University Vietnam, who recently left Shenzhen after nine years as an economics professor at the HSBC Business School of Peking University, said Huawei needs to be more transparent about its company and perceived ties to the Communist Party in Beijing.

“[The lawsuit] seems more like a ploy to make their case than a real change of character,” Balding told Al Jazeera.

“If they wanted to alleviate questions about their ownership structure, it would be easy to put information into the public domain to address those concerns but they continue to refuse to do so.”

Huawei has been pulling out all the stops on the public relations front.

Reuters reported on March 7 that at least 10 senior journalists have been approached by headhunters hired by the company, offering annual packages of $200,000. A reporter who writes for Al Jazeera in Shenzhen was also approached by Huawei-connected headhunters with exactly the same offer.

International blowback

The US is pressuring other allies that are part of the Five-Eyes intelligence alliance – including the United Kingdom, Germany and Canada – to ban Huawei products, urging them to bar Huawei from participating in the rollout of fifth-generation (5G) mobile networks in their countries.

Bans on government use of Huawei products have already been issued in Australia and New Zealand since the US action.

Huawei is also embroiled in a legal tussle over the December 1 arrest of Chief Financial Officer Meng Wanzhou by Canadian authorities after an extradition request from the US over allegations of bank and wire fraud related to breaches of US-imposed sanctions on Iran.

Meng is the daughter of Ren Zhengfei, founder and CEO of Huawei, who recently said in a rare interview that the company would never share information with Beijing.

Meng, who is on bail and living at her Vancouver home, appeared in court on Wednesday to argue against the extradition, saying the request was politically motivated. 

During the proceedings, they referred to US President Donald Trump‘s Twitter remarks in December when he alluded to dropping the extradition request if the US and China reached a trade deal. 

The two superpowers are currently conducting video-conference negotiations to reduce trade friction after Washington delayed a deadline to increase tariffs by 25 percent on about $200bn in Chinese products last week.

Huawei, which insists it is a private company and not at the bidding of the government in Beijing, has also denied its equipment can be used for intrusion under Chinese cybersecurity and national security laws. 

But legal experts at global law firms who asked not to be identified said those laws do spell out how the government can compel telecommunications companies to open their systems for snooping.

Spying accusations

Chinese authorities have emerged as staunch defenders of Huawei.

Canadian citizens Michael Kovrig, a former diplomat and currently an analyst with Brussels-based international conflict monitoring think-tank Crisis Group, and Michael Spavor, a businessman and consultant, were arrested after Meng’s arrest.

On Monday, China accused them of spying.

Asked whether other countries such as Australia that have been pushing back on using Huawei technologies could face similar legal action in the future, Elena Collinson, a senior project and research officer at the Australia-China Relations Institute at the University of Technology in Sydney, said even if it did the likelihood of success would be low.

“Huawei Australia stated last year they would ‘take all possible measures to protect our legal rights and interests’ in response to the Australian government’s decision to block Huawei from participating in the rollout of Australia’s 5G network,” Collinson said.

“While we might not be able to rule out completely the potential for Huawei to bring a case against the Australian government on the ban, there would probably be limited scope for any such action to succeed,” she added.

Collinson said Australian courts have generally been reluctant to weigh in on executive decisions related to national security there, nor would there be much scope for Huawei to base a lawsuit on breaches of a 1988 bilateral investment treaty between the two.

Imports of coal from Australia have recently been caught up in the northern port of Dalian over environmental inspections, causing concerns a ban had been implemented.

China’s foreign ministry last month denied there was any ban. Spokesperson Geng Shuang said coal that did not meet the country’s environmental standards had been found in recent years, so this was part of general quality-and-safety inspections.