Huawei files motion against US declaring law as 'unconstitutional'

The Chinese tech giant is looking to have the law thrown out.

Is the Huawei ban an assault or simply just part of a trade war? TechRepublic's Karen Roby talks to David Gewirtz of ZDNet to gain his perspective on the latest happenings surrounding Huawei and the implications of a trade war. Read more: https://zd.net/2KlPYZ3

Huawei has filed a motion for a summary judgment against the US government that alleges section 889 of the National Defense Authorization Act 2019 (NDAA) is unconstitutional.

Section 889 of the NDAA enforces a ban on US federal agencies and their contractors from using Huawei equipment due to security concerns about the Chinese government. 

In the motion, Huawei argues that section 889 specifically targets Huawei, saying the legislation disrupts the company's existing contracts; stigmatises the company and its employees as supposed tools of the Chinese government; and seriously threatens the company's ability to do business in the US. 

"They are using every tool they have, including legislative, administrative, and diplomatic channels. They want to put us out of business," Huawei chief legal officer Song Liuping said in a statement.

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

Labelling section 889 as a "bill of attainder" -- a piece of legislation that declares an entity as being guilty without a fair trial -- the motion against the US government will only focus on arguments relating to whether the law itself is constitutional. What this means is the motion is not a dispute of any facts, such as whether Huawei breached section 889 of the NDAA. 

"Because Plaintiffs bring 'a facial challenge to the constitutionality of' section 889 that 'presents a pure question of law,' there is no genuine dispute of material fact about their claims," Huawei said in the motion.

If the courts deem section 899 of the NDAA to be unconstitutional, Huawei will look to get the legislation thrown out. 

"The judicial system is the last line of defense for justice. Huawei has confidence in the independence and integrity of the US judicial system. We hope that mistakes in the NDAA can be corrected by the court," Song said.

The new motion is an update of Huawei's lawsuit against section 889 of the NDAA that commenced in March, when the company sued the US government by alleging the ban against government agencies from buying the Chinese company's networking equipment was unconstitutional.

Huawei's complaint filed in March claimed that section 889 of the NDAA bars all US government agencies from doing business with Huawei, as well as third parties from using Huawei equipment.

See: After Huawei, which Chinese firms are next on US enemies list?

Pressure has been mounting on Huawei, especially after the US government put the company on its Entity List, which requires US companies to gain approval from government to sell equipment to Huawei, effectively banning any interactions between US firms and Huawei.

Shortly after Huawei was put onto the Entity List, Google pulled Android support from Huawei. UK semiconductor giant Arm has also instructed its employees to suspend work with Huawei, while Taiwanese telcos Chunghwa Telecom and Taiwan Mobile and Japanese telcos SoftBank and KDDI have pulled back the sale of Huawei's new handsets due to Google's decision.

Speaking at the Potsdam Conference on National Cybersecurity last Thursday, Hu said the Huawei ban creates a "dangerous precedent" that will affect international markets, cut off global supply chains, and disrupt fair competition.

"We don't want to see another wall [like the Berlin Wall] and we don't want to go through another painful experience. Equally, we don't want to build a new wall in terms of trade, we don't want to build a new wall in terms of technology either."

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