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Huawei to sue US government to overturn its ban as unconstitutional

Huawei warns bans will increase prices and put US behind in 5G race
Huawei says that restricting competition will increase prices and delay the implementation of 5G, putting the US behind rival countries.

Huawei has filed a suit against the government of the United States as it seeks to overturn its ban through the National Defense Authorization Act (NDAA).

Filed in the US Federal Court, Huawei rotating chair Guo Ping said in Shenzhen on Thursday that the company is seeking a declaratory judgment that the NDAA restrictions were unconstitutional, as well as a permanent injunction against the restrictions.

“The US government has long branded Huawei a threat. It has hacked our servers and stolen our emails and source code,” Guo Ping said. “Despite this, the US government has never provided any evidence supporting their accusations that Huawei poses a cybersecurity threat.

“Still, the US government is sparing no effort to smear the company and mislead the public about Huawei. Even worse, the US government is trying to block us from the 5G markets in other countries.”

In his speech, the Huawei chair alluded to a tweet from US President Trump that called on US companies to develop 6G, and “win through competition, not by blocking out” more advanced competition.

“Other countries are rightly resisting the US government’s campaign against Huawei, and the US president himself has recently questioned using artificial security reasons to block Huawei,” Guo Ping said.

“We are compelled to take this legal action as a proper and last resort. We look forward to the court’s verdict, and trust that it will benefit both Huawei and the American people.”

The complaint filed by Huawei claims that section 889 of the NDAA not only bars all US government agencies from doing business with Huawei, but also bars third parties that use Huawei equipment.

Read: Bipartisan Bill introduced to ban sale of US tech to Huawei and ZTE

“This violates the Bill of Attainder Clause and the Due Process Clause. It also violates the separation of powers principles enshrined in the US Constitution, because Congress is both making the law, and attempting to adjudicate and execute it,” the company said in a statement.

Huawei chief legal officer Song Liuping said the ban was unconstitutional by singling out the company by name, and was a “purposeful and punitive” attack.

“Huawei has never had a fair chance to confront or cross-examine its accusers. Nor has it been allowed an impartial adjudicator,” Song said.

“The U.S. Congress has simply acted as law-maker, prosecutor, and jury at the same time, contrary to the American Constitution.”

Song added the company was, along with the government, suing agency secretaries bound by section 889, including the Secretary of Agriculture Sonny Perdue and Acting Interior Secretary David Bernhardt. 

Huawei also repeated claims that it has never installed backdoors, and that no evidence against it has ever been produced. 

In a speech delivered earlier this week in London, former Australian Prime Minister Malcolm Turnbull addressed his nation’s ban on Huawei and ZTE.

Turnbull said the ban instituted in August was not done at the behest of another nation or for protectionist reasons, but because it defended Australia’s sovereignty and as a “hedge against changing times”.

“It is important to remember that a threat is the combination of capability and intent,” he said.

“Capability can take years, decades to develop. And in many cases won’t be attainable at all. But intent can change in a heartbeat.”

Huawei is currently facing a 10-count indictment alleging the company conspired to steal intellectual property from T-Mobile and subsequently obstructed justice, in addition to separate 13-count indictment against the company and its CFO Meng Wanzhou.

Also: Huawei ban sees TPG end rollout of Australian mobile network

“The company denies that it or its subsidiary or affiliate have committed any of the asserted violations of US law set forth in each of the indictments, is not aware of any wrongdoing by Ms Meng, and believes the US courts will ultimately reach the same conclusion,” Huawei said in January.

The US Department of Justice is alleging that Huawei offered bonuses to employees for stealing information, before clarifying to its US employees that such behaviour would be illegal.

“The charges unsealed today clearly allege that Huawei intentionally conspired to steal the intellectual property of an American company in an attempt to undermine the free and fair global marketplace,” FBI Director Christopher Wray said at the time.

“To the detriment of American ingenuity, Huawei continually disregarded the laws of the United States in the hopes of gaining an unfair economic advantage. As the volume of these charges prove, the FBI will not tolerate corrupt businesses that violate the laws that allow American companies and the United States to thrive.”

The United States is alleging that Huawei stole information on a T-Mobile phone-testing robot called Tappy in order to build its own, which included photographing and measuring Tappy, as well as physically stealing a part from it.

“After T-Mobile discovered and interrupted these criminal activities, and then threatened to sue, Huawei produced a report falsely claiming that the theft was the work of rogue actors within the company and not a concerted effort by Huawei corporate entities in the United States and China,” the Department of Justice said.

“As emails obtained in the course of the investigation reveal, the conspiracy to steal secrets from T-Mobile was a company-wide effort involving many engineers and employees within the two charged companies [Huawei and Huawei USA].”

See: Huawei CFO sues Canadian government, police, border force

The indictment involving Meng Wanzhou relates to the relationship between Huawei and its Iranian-affliate Skycom.

“Huawei employees allegedly told banking partners that Huawei had sold its ownership in Skycom, but these claims were false,” United States acting Attorney General Matthew Whitaker said in January.

“In reality, Huawei had sold Skycom to itself.”

Whitaker alleged the company used the false sale to claim it was in compliance with US sanctions on Iran, and hence banks working with the company also violated the sanctions. The acting Attorney-General also alleges Huawei lied to the US government and attempted to obstruct justice by concealing and destroying evidence, and moving potential government witnesses back to China.

On Wednesday, the Vancouver Sun reported the Huawei CFO’s extradition case has been deferred until May 8, where a date for the extradition hearing could be set.

Meng was arrested on December 1 in Vancouver.

Updated at 15:18pm AEDT, March 7, 2019: additional comments added. 

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