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American lawyers interpret: How should Huawei sue the US government

via:博客园     time:2019/3/11 23:33:16     readed:320

“ Why should the United States sanction Huawei? Why is Huawei suing the US government? ”

On March 8th, at a restaurant near Stanford University in the United States, an American computer student asked PingWest's author, "I was confused." ”

“When Huawei is updating this day, they (the same class American classmates) can’t keep up. & rdquo; Chinese students next to it said this.

It can be said that during the past six months, Huawei has almost occupied the news of the streets and lanes and became the most familiar Chinese brand of the American people. Even the American people who do not care about the ups and downs of the technology circle and international politics have begun to pay attention to the friction between the Chinese company and the US government.

The Huawei incident has made the latest progress this week.

On March 7th, Huawei officially declared a war and submitted an indictment to the US court to sue the US government for unconstitutionality.

Huawei objected to the US government's "National Defense Authorization Act" promulgated at the beginning of the year to prohibit US government agencies from purchasing Huawei equipment and services. It did not give Huawei any way to appeal to itself.

In the indictment, Huawei emphasized that it “has to comply with security procedures and has never implanted any backdoors.” There are no recorded security issues in 170 countries around the world that are using Huawei. At the same time, Huawei accused such a process of violating the US separation of powers.

Glen D. Nager, the lead attorney in the Huawei case, said that the 2019 Defense Authorization Act not only prevented Huawei from providing services to US customers, but also damaged Huawei's reputation and left Huawei with the opportunity to provide services to customers outside the United States.

In addition, at the press conference for the case, Guo Ping, the rotating chairman of Huawei, also reprimanded the US government for invading Huawei servers and stealing a large amount of mail and source code.


Interpretation by American lawyers: Huawei is fighting for its own rights

As for whether Huawei can win the case, American lawyers have different opinions. A common view is that it is not easy for foreign companies to sue the US government.

Cheng Shaoming, director of Taihetai Law Firm of the United States, also said to PingWest that the difficulty is that Huawei needs to prove to the judge. The US ban on sales by Huawei is a punishment rather than a precautionary one.

Last year, the Russian company Kaspersky experienced a failure. Kaspersky also sued the US government for a similar reason with Huawei because the US National Defense Agency prohibited the use of the company's software in the National Defense Authorization Act a year ago. The result was that the US court directly rejected the appeal, Kasbah. The base ended in failure.


“The judge thought that the legislation of Congress was of a preventive nature, not a punishment. The US Congress can legislate to protect national security, prohibiting US federal government agencies from using a company's products. & rdquo; Cheng Shaoming told PingWest to play.

And John Schmidn, a professor at Marshall Law School in Chicago, said in an interview with the media that the trial of Huawei will not be subject to the Kaspersky ruling, but because the two cases are very similar, they may learn from their reasoning logic.

No process Shao Ming said to PingWest: Kaspersky case trial was conducted in Washington, DC. According to the current US law, the Huawei case to be heard in Texas does not have to fully comply with and copy the Kaspersky case. However, the judge may also refer to the results of the previous case when making a ruling.

Cheng Shaoming concluded that there are two major problems that Huawei has to sue for the US government. One of them is how to prove to the federal court that the National Defense Authorization Act passed by the US Congress is to ban Huawei products for punishment, not to protect US security. The second is how to respond to the US government's investigation letter to Huawei about the technical parameters of Huawei products.

A local Californian lawyer who wants to be anonymous said to PingWest that the case is likely to have been filed in the federal court. The next possible move is that the US Department of Justice will file an application for revocation on behalf of the US government to the US court. If the case is not revoked, the next step will be considered.

“It is worth noting that as a defendant, the US government can ask Huawei to submit some more sensitive and sensitive technical data during the investigation and evidence collection phase. & rdquo; The lawyer analyzed: Once this is the case, it is likely that Huawei's technical secrets will be forced to open a hole in the United States.

“Specially sensitive data Huawei can request not to be released to the public, but only to the court by means of camera shooting. & rdquo; Anonymous lawyer said.

The whole case will come down for a few months and up to two years to get the final result.

"But the purpose of Huawei's prosecution is probably not to win a verdict, but to hope that the United States will use its legal weapons to exercise its own rights, and not simply accept a legal defense against itself. & rdquo; Anonymous lawyer said.

A chance to publicly clarify misunderstandings

Relative to the rational analysis of lawyers, the American people are more inclined to link Huawei's litigation with Huawei's competition with the United States on 5G.

The US version knows —— Quora has many users questioning and discussing Huawei lawsuits.

User Godfree Roberts wrote: Huawei is the only company in the world that has the most 5G intellectual property and can produce parts for 5G networks. It has no obvious rivals in the global arena.


The United States believes that Huawei is a security risk only for a ridiculous reason: The United States believes it has an encryption system to prevent the US National Security Agency from obtaining its communication records.

If you remember the Snowden event in 2014, the New York Times and Reuters also disclosed that the Homeland Security Administration had penetrated Huawei's headquarters to monitor their high-level and headquarters servers. One reason for this is to look for the weaknesses of Huawei servers, so that the National Security Bureau can monitor countries that use Huawei technologies and products.

Although some US lawyers believe that Huawei has many difficulties in suing the US government, some analysts in the scientific and technological circles believe that Huawei is suing the US government for not winning the verdict, but to win back its international reputation and lift its plight in the global 5G market.

By suing the US government in a way that follows Western customs and civilizations, Huawei has taken the initiative to respond to the many suspicions that the US government has imposed on it, and has allowed Huawei to have an opportunity to publicly defend itself in a relatively compelling situation. Disarming other countries and enterprises around the world for Huawei's concern for the Chinese government to open the back door.

“This is more like a PR act. “ US mobile industry analyst Chetan Sharma said, "It's more like Huawei's signal to other countries that have doubts about Huawei's cooperation —— Huawei is a safe partner they can rest assured. ”

In the past year, Huawei has suffered from many frictions with the United States. The damage is not only the domestic market share of the United States, but also the trust of its partners.

Huawei's series of “counterattacks” have also received results ———— the UK intellectual property department issued a signal last month that it is likely that it will not ban Huawei from entering the UK. Similarly, German Economy Minister Peter Altmaier also said that Germany does not want to ban Huawei from participating in the country's 5G network construction.


The ability to keep the German battlefield is now very important for Huawei. Sharma thinks.

It can be said that regardless of whether the lawsuit against the US government can win, Huawei has already stepped out of the first step.

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