Huawei Gets Its Day in Court

Huawei, which is at the centre of a titanic struggle over whether Chinese companies can be trusted with US data, will defend itself for the first time in a US courtroom this week.

The specific legal case deals with a ban on government agencies buying Huawei products that Congress passed last year. But Huawei probably will use the public showdown as an opportunity to punch back against a slew of other US restrictions, experts told me.

Those restrictions include a presidential order banning the company from the United States' next-generation 5G wireless networks, a Commerce Department ban on US companies selling parts to Huawei and a public campaign urging US allies to impose similar restrictions. They're all based on US government claims Huawei can't be trusted not to help Beijing spy on US targets.

The public hearing offers Huawei a plum opportunity to argue to the world - including US allies who may be on the fence about working with the embattled telecom firm - that those restrictions aren't really about protecting US national security but about a fear of Chinese economic competition and the Trump administration trying to gain leverage in trade negotiations.

"The message Huawei wants to send is that it's a victim being attacked by the US government across the board . . . that the security risks are nonexistent or overblown and that the US is a bad actor in this space," Adam Segal, a cyber-security and China policy expert at the Council on Foreign Relations, told me.

Huawei has gotten some help in that argument from President Trump, who has repeatedly suggested on Twitter and elsewhere that he might roll back some restrictions on the company in exchange for concessions in the US-China trade dispute.

"If I was Huawei's attorney, I'd be pushing hard on that, saying this is not a security thing, it's a trade thing," Eric Crusius, an attorney at the Holland & Knight law firm who focuses on government contract disputes, told me.

But that argument might not be very effective with the judge in the case, Judge Amos Mazzant of the US District Court for the Eastern District of Texas.

"I wouldn't be surprised if the judge knows the president is kind of a free agent when it comes to Twitter and gives the Justice Department some slack with respect to that," Crusius told me.

The company's legal defense is also part of a broader campaign to push back against the United States outside the courtroom, including by accusing the US government of hacking its systems and threatening its employees, and with a Twitter feed named @HuaweiFacts that routinely disputes claims the company assists Beijing spying.

"My sense is they never really thought they were going to win this case, but it's part of a broader PR campaign, probably directed both domestically inside of China and to potential Huawei partners in Europe, Latin American and other places," Segal told me. "They want to paint the picture that the US is trying to crush Huawei and Huawei is fighting back."

During the oral arguments scheduled for Thursday, Huawei attorneys will argue against a Justice Department request to dismiss its case challenging the government ban. Huawei's main argument is that Congress unfairly singled it out for punishment by barring it from government systems.

The Justice Department, meanwhile, says Congress has every right to ban companies that pose national security threats. In the case of Huawei, Congress's concerns the company could help Chinese spying date all the way back to 2012 when the House Intelligence Committee produced a report about Huawei seemingly transferring US companies' data to China.

The DOJ argument prevailed in a highly similar case last year when a federal judge dismissed a challenge from the Russian anti-virus company Kaspersky Lab, which Congress also banned from US governmnt computer networks. But some think Huawei might have a better chance of beating the motion to dismiss because it will be easier to cast doubt on US motives.

"There's certainly a tug of war with policy vis a vis the Chinese now, and Huawei's been in the middle of that. Kaspersky didn't have the benefit of making that argument because there was no Russian economic policy we were debating at the time," he said.

Mazzant may rule on the case immediately after the oral arguments or defer the ruling. Huawei and the DOJ both declined to comment because their litigation is ongoing.

© The Washington Post 2019