Huawei calls U.S. federal ban unconstitutional, requests courts to overturn ruling

Huawei has filed a motion requesting the US courts for a summary judgement on its move to get a US ban on Huawei equipment for federal agencies and contractors overturned. This comes after almost three months after Huawei has filed a lawsuit against the US government arguing that the 2019 US National Defense Authorisation Act (NDAA) is unconstitutional as it singles out a person or a group for punishment without trial.

Huawei emphasised that banning the company from the US market using cybersecurity as an excuse “will do nothing” to strengthen the security of government networks and it only distracts attention from the “real challenges”. The Chinese company is filing the motion for a summary judgement in order to accelerate the process of halting “illegal action against the company”.

Huawei’s press conference in March 2019.

Huawei’s lead counsel for the US case, Glen Nager, has said that Section 899 of the 2019 NDAA which was signed by President Donald Trump “violates the Bill of Attainder, Due Process, and Vesting Clauses of the United States Constitution”. He added that the case is purely “a matter of law” as there are no facts at issue, thereby justifying the motion for a summary judgement to speed up the process.

Huawei’s Chief Legal Officer, Dr. Song Liuping, has also issued a public statement on the matter. He accused US politicians of using every resource including legislative, administrative and diplomatic channels to put Huawei out of business. This he says is not normal and he stresses that the US government has provided no evidence to show that Huawei is a security threat. “There is no gun, no smoke. Only speculation”.

Dr. Song Liuping, Chief Legal Officer of Huawei

They explained that Section 889 of the 2019 NDAA provided no opportunity for Huawei to defend themselves or to present a rebuttal. He says this is “trial by legislature” and it is prohibited by the US Constitution.

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By filling a summary judgement, Huawei hopes that the courts can issue a judgement in the fastest and most efficient way, declare restrictions on Huawei as unconstitutional and to stop enforcement of related sectors.

Dr. Song explains this lawsuit is about what’s right and the NDAA is not just bad for Huawei but it also takes away freedom of choice for American operators and consumers. He has shared that many Americans in rural areas are being neglected and they don’t have access to affordable broadband networks. Huawei has worked closely with rural operators to ensure all Americans have equal access.

Despite their efforts, the US Commerce Department has added Huawei into their “Entity List“. This decision by the US Government has harmed its customers in over 170 countries and this includes 3 billion consumers that use Huawei products and services worldwide. Dr. Song stresses that connectivity is a basic human right and the US is putting their rights at risk especially people in undeveloped countries.

By preventing American companies from doing business with Huawei, the US Government is causing direct harm to more than 1,200 US companies which also affects tens of thousands of American jobs. He also said that it is unfortunate that the US Government is using so much time, resource and political capital to attack a private company.

Huawei believes this sets a dangerous precedent. Today it’s telecoms and Huawei, and tomorrow it could be your industry, your company and your consumers.

Dr. Song said using the judicial system is the last line of defense of justice and Huawei has confidence in the independence and integrity of the US judicial system. They hope that the mistakes in the NDAA will be corrected by the courts.

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At the end of his statement, the CLO emphasised that cybersecurity has always been Huawei’s top priority and they are doing everything they can to provide secure and advanced products with the support of their global suppliers and customers. He also mentions that if the US government’s real intention is security, they expect them to make the right approach and adopt honest and effective measures to enhance security for everyone.

A hearing on the motion is set for 19th September 2019.

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Alexander Wong