Contracting with the federal government is “a privilege,” not a constitutionally guaranteed right. That was the core of a 57-page ruling from Judge Amos Mazzant of the US District Court in East Texas, who threw out Huawei’s challenge to the law that keeps federal agencies from buying its equipment. He issued the decision on a Tuesday in February 2020.
Huawei had sued in March 2019. Its target was an addition to the National Defense Authorization Act that stopped agencies and their contractors from buying “critical” telecom gear from Huawei and other Chinese communications companies, ZTE among them. The company said Congress had produced no evidence for the ban, and called it unconstitutional and needlessly punitive.
A bill of attainder, or a customer walking away?
The company’s main argument leaned on an old rule. The Constitution bars bills of attainder, laws that single out a person for punishment without a trial. The practice was notorious in Britain in the decades before the American Revolution. Huawei said it counts as a “person” under US law and deserves the same shield.
Mazzant did not need to settle that point. Even granting it, he said, the purchasing ban is not the kind of punishment the clause forbids. In his words, it “represents no more than a customer’s decision to take its business elsewhere.”
Corporations, the judge added, cannot be embarrassed and have no friends to lose. Nor was Huawei shut out of business. It remained free to sell to private buyers in the United States and to thousands of public and private customers abroad.
The Kaspersky precedent
Mazzant leaned repeatedly on a 2018 decision involving the Russian security firm Kaspersky Lab. Kaspersky had challenged a provision in the 2018 defense appropriations law that barred agencies from doing business with it, again over fears of deep ties to a foreign government. Judge Colleen Kollar-Kotelly, a federal trial judge in Washington, rejected the claim. A government that chooses not to buy a product is not punishing the maker, she held, least of all when national security is the worry.
“Reputation is an asset that companies cultivate, manage, and monetize,” she wrote. Losing it “exacts no psychological cost.” Mazzant said the same logic applied to Huawei.
What lawmakers said, and what Congress did
To prove the law was meant as punishment, Huawei quoted members of Congress. The sharpest was Sen. Tom Cotton, who said in 2018 that Huawei and ZTE “have proven themselves to be untrustworthy” and that the only fitting punishment would be “the death penalty,” meaning putting them out of business in the United States.
The judge waved the remarks aside. They reflected a few individual legislators, he wrote, not Congress as a whole. Intent, in his view, is better read from the text of the law and the official findings behind it, and those pointed to a different aim: protecting federal networks from Chinese hackers, not settling a score over past conduct.
Washington has long called Huawei a security risk because of its relationship with the Chinese government. The company denies the charge. When CNET sought comment on the ruling, Huawei did not immediately reply.
Sources
- Judge rules a 2019 law singling out Huawei is constitutional – Ars Technica
- Judge dismisses Huawei suit challenging US government's equipment ban – CNET
Sources
- Judge dismisses Huawei suit challenging US government’s …
- US District Court dismisses Huawei lawsuit that federal ban… – ZDNET
