'No silent lambs': Suing the U.S. is a move Huawei has to make

“We encourage CHINESE enterprises and citizens to guarantee interests with legal weapons and refuse to be 'silent lambs,'" said Wang Yi, CHINESE State Councilor and Foreign Minister, while clenching his fist at a press conference on the sidelines of the second session of the 13th National People's Congress (NPC).

To many, Huawei's decision to file a lawsuit against the U.S. government on account of what it claims to be an unjustified ban is an act of full-blown “lawfare.”

To attack is to defend

Perhaps it is a war. But Huawei is not suing to win, at least not according to the information that has been released so far. To see Huawei merely as a bargaining chip between China and the U.S. over the recent trade standoff is to underestimate its desire to survive and succeed.

It may seem baffling at first to see Huawei take such a drastic move, when only recently U.S. President Donald Trump openly implied that it would take a less aggressive position towards Huawei over the competition of 5G. But can Trump be trusted? The stakes are too high to put any faith on Trump's tweeted promises. Meanwhile, the China hawks are not giving Huawei any room to breathe by uniting America's NATO allies in a boycott. At this point, to attack is to defend. And it seems it has hit Uncle Sam where it hurts.

Guo Ping (C), rotating chairman of Huawei Technologies Co., leaves after holding a press conference in Shenzhen, China, on March 7, 2019. /VCG Photo

Huawei is challenging the constitutionality of Section 899 of the National Defense Authorization Act (NDAA), which prohibits the U.S. government agencies from purchasing equipment and services from CHINESE companies such as Huawei and ZTE. It argues that it is unconstitutional to put individual CHINESE companies on the list for punishment without going through any administrative or judicial procedures.

It seems that diplomacy has failed in this case, regardless of Huawei and the CHINESE government's repeated denial of the alleged espionage charge.

So Huawei has chosen to fight on the forefront and beat the ban at America's own legal weapons. According to Kong Qingjiang, the dean of the School of International Law under China University of Political Science and Law, Huawei's challenge is grounded in the idea that U.S. Congress has made itself the judge and jury, without providing any solid evidence to support these allegations. In doing so, it hurts both Huawei's interest and the lives of American consumers, since it's able to provide cheaper 5G products with high quality.

The new Huawei Mate X smartphone is displayed during the second day at the mobile World Congress 2019 in Barcelona, Spain on February 26, 2019./VCG Photo

The process of a lawsuit that challenges constitutionality is bound to be a long and bumpy one. It took a year for a similar case, in which the Russian company Kaspersky sued the U.S. government over its ban on the use of its anti-virus software, only to be dismissed in the end for security concerns. But there is also an encouraging case from 2010 in which a CHINESE manufacturer, Sany Heavy Industry, won a lawsuit against U.S. President Barack Obama over the purchase of a wind farm close to a navy base in the U.S.

The prospects are not bright, but at least Huawei did not fold its hands and await what comes next.

Look who's talking

In a recent opinion piece by one of Huawei's top executives, Guo Ping, in the Financial Times, he lashes out against America's charges by reminding the readers of the infamous Edward Snowden incident, which has caused unease around the world regarding the omnipresence of the “Big Brother.” He goes on to argue that the more Huawei has been successful in gaining an edge in building communication infrastructure, the harder it becomes for the U.S. government to “collect it all” and “hampers U.S. efforts to spy on whomever it wants.”

Huawei has already claimed that there was evidence showing that the U.S. hacked into Huawei's server, only to find nothing that could be used against it. With Washington's own cyber record and the UK's assessment that the security risks can be mitigated, it is no wonder that the international community is softening its tone against Huawei, which runs against U.S. wishes.

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