Enlarge /. A customer looks at a Huawei smartphone in a Huawei store in Moscow.
Sergei Karpukhin / TASS via Getty Images
A federal judge has put down a Huawei lawsuit to lift a ban on the purchase of Huawei telecommunications equipment by federal agencies. Congress passed the law, which is part of the 2019 military budget, out of concern that the Chinese government could infiltrate Huawei-based networks.
Huawei had argued that the law was unconstitutional after the constitution banned attacks. The federal government argued that this was nonsense. On Tuesday, the Texas federal judge Amos Mazzant joined the government.
The Constitution prohibits Congress from "attempting to assassinate," legislation that awards punitive punishment to people without trial. This was a notorious practice in Britain in the decades before the American Revolution. Huawei argued that it was a "person" under US law and was therefore entitled to this protection.
The judge disagreed. Even if you allow the premise that Huawei is a person, banning the purchase of Huawei and ZTE devices is simply not the type of punishment prohibited by the Bill of Attainder rule.
Congress's ban on federal agencies buying a range of Huawei and ZTE telecommunications products "is nothing more than a customer's decision to move their business to another location," Mazzant wrote.
Companies are not ashamed and do not lose friends
Huawei claimed that Congress passed a ban on the purchase of Huawei devices to punish Huawei. If so, it could make the law unconstitutional. The government countered that it was only a pragmatic decision to support national security.
A key factor here is whether a measure marks the target with a badge of "infidelity and shame". For example, in a 2003 ruling, an appeals court ruled that it was unconstitutional for Congress to restrict a particular man's right to visit his daughter based on allegations that he had sexually abused her. The problem, the court said, was not only the loss of visiting rights themselves, but also the embarrassment of being publicly classified as a sexual abuser by Congress.
The ban on the sale of equipment to the federal government by Huawei is completely different, the judge said. Businesses can't be ashamed and don't have to worry about losing friends. The legislation left Huawei with many other options: it was free to sell its equipment to private parties in the United States and to thousands of potential public and private customers outside the United States.
Judge Mazzant pointed to a similar ruling by another court in 2018. In this case, Kaspersky contested a provision of the National Defense Appropriations Act of 2018 that prohibited federal agencies from doing business with the Russian IT security company Kaspersky Lab. As in the Huawei case, lawmakers feared that Kaspersky could have close ties to a foreign government – in this case, Russia.
But Judge Colleen Kollar-Kotelly, a federal judge in Washington DC, rejected Kaspersky's arguments. She decided that the government's decision not to buy a company's product was simply not a punishment – especially if the decision was based on a major issue such as national security.
"Companies are very different," she wrote. "Reputation is an asset that companies maintain, manage and monetize. It is not a quality that is essential to a company's emotional well-being, and its reduction does not require psychological costs."
Mazzant repeatedly quotes Kollar-Kotelly's reasoning in his own decision, arguing that exactly the same logic applies.
To substantiate the claim that the legislation is punishable, Huawei cited several members of Congress who appear to intend to punish.
Huawei and ZTE "have proven to be untrustworthy, and at this point I think the only reasonable punishment is to give them the death penalty – that is, to get them out of business in the United States," said Senator Tom Cotton (R-Ark.) In 2018.
But Mazzant dismissed these examples, arguing that they represent the views of some individual legislators, not the intent of the entire Congress. He argued that Congress's intent can be better judged by looking at the actual text of the law and the official results of Congress on which the law is based. These documents, Mazzant concluded, show that Congress focused on protecting U.S. federal networks from Chinese hackers and not punishing Huawei for past misconduct.