Judge rules a 2019 law singling out Huawei isn’t unconstitutional, Ars Technica

/ A customer looks at a Huawei smartphone in a Huawei store in Moscow.

Sergei Karpukhin / TASS via Getty Images A federal judge has slapped down a Huawei lawsuit that sought to overturn a ban on federal agencies buying Huawei telecommunications gear. Congress passed the legislation, part of the military’s 2019 appropriations bill, out of concern that the Chinese government could infiltrate Huawei-based networks.

Huawei had argued that the law was unconstitutional under the Constitution’s ban on bills of attainder. The federal government argued that was nonsense. On Tuesday, Texas federal Judge Amos Mazzant sided with the government.

The Constitution prohibits Congress from imposing “bills of attainder” —legislation that singles out individuals for punishment without trial. This was an infamous practice in Great Britain in the decades before the American Revolution. Huawei argued that it was a “person” under US law and hence entitled to this protection.

The judge disagreed. Even if you grant the premise that Huawei is a person, he said, the ban on buying Huawei and ZTE equipment simply wasn’t the kind of punishment prohibited by the bill of attainder rule.

Congress’s ban on federal agencies purchasing a range of telecom products from Huawei and ZTE “represents no more than a customer’s decision to take its business elsewhere, “Mazzant wrote.

Corporations don’t get embarrassed or lose friends

Huawei claimed that Congress passed the ban on buying Huawei equipment to punish Huawei. If true, that could make the law unconstitutional. The government countered that what it did was simply a pragmatic decision to shore up national security.

A key factor here is whether a measure brands the target with a badge of “disloyalty and infamy.” In a (ruling) , for example, an appeals court ruled that it was unconstitutional for Congress to restrict a specific man’s right to visit his daughter based on allegations that he had sexually abused her. The problem, the court said, was only only the loss of the visitation rights itself, but also the embarrassment of being publicly branded a sexual abuser by Congress.

Banning Huawei from selling gear to the federal government is totally different, the judge ruled. Corporations can’t feel embarrassed, and they don’t have to worry about losing friends. The legislation left Huawei with plenty of other opportunities: it was free to sell its gear to private parties in the United States as well as to thousands of potential customers, public and private, outside the United States.

Judge Mazzant pointed to a similar ruling

made by another court in . In that case, Kaspersky challenged a provision of the National Defense Appropriations Act that banned federal agencies from doing business with Russian IT security firm Kaspersky Lab. As in the Huawei case, legislators were worried that Kaspersky could have deep ties to a foreign government — in this case, Russia.

But Judge Colleen Kollar-Kotelly, a federal trial judge in Washington DC, rejected Kaspersky’s arguments. She ruled that the government choosing not to buy a company product was simply not a punishment — particularly if the decision is based on a weighty concern like national security.

“Corporations are very different,” she wrote. “Reputation is an asset that companies cultivate, manage, and monetize. It is not a quality integral to a company emotional well-being, and its diminution exacts no psychological cost.”

Mazzant repeatedly cites Kollar-Kotelly’s reasoning in his own ruling, arguing that precisely the same logic applies.

To bolster its claim that the legislation was punitive, Huawei quoted several members of Congress that appear to show an intent to punish.

Huawei and ZTE “have proven themselves to be untrustworthy, and at this point I think the only fitting punishment would be to give them the death penalty-that is, to put them out of business in the United States, “ said Sen. Tom Cotton (R-Ark.)

in .

But Mazzant waved those examples away, arguing that they represent the views of a few individual legislators, not the intent of the Congress as a whole. He argued that Congressional intent is better judged by looking at the actual text of the legislation as well as official Congressional findings the law was based on. Those documents, Mazzant connected, show that Congress was focused on protecting US federal networks from Chinese hackers, not on punishing Huawei for perceived misconduct in the past.

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