Huawei Technologies Co. Ltd. today filed a lawsuit against the U.S. government claiming that the ban against its equipment being offered for government contracts in unconstitutional.

The lawsuit, filed in the U.S. District Court in Plano, Texas argues specifically that Section 889 of the 2019 U.S. National Defense Authorization Act that prohibits government agencies from buying Huawei gear is unconstitutional because it violates multiple constitutional principles by singling out the company without evidence.

“The U.S. Congress has repeatedly failed to produce any evidence to support its restrictions on Huawei products,” Guo Ping, Huawei rotating chairman said in a statement. “We are compelled to take this legal action as a proper and last resort. This ban not only is unlawful, but also restricts Huawei from engaging in fair competition, ultimately harming U.S. consumers.”

Huawei argued that along with failing to provide evidence, the bill also unfairly bars it from contracting with or awarding grants or loans to third parties that buy Huawei equipment or services, without any executive or judicial process.

Huawei said that violates the Article I, Section 9, paragraph 3 of the U.S. Constitution, the Bill of Attainder Clause that prohibits an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without a trial.

The company also argues that the prohibition violates the Fifth and Fourteenth Amendments to the Constitution – the Due Process Clauses as well as violating the Separation-of-Powers principles enshrined in the U.S. Constitution as Congress is both making the law and attempting to adjudicate and execute it.

The reasoning for the ban is that Huawei is controlled by the Chinese government and hence presents a security risk, something the company continues to deny.

“Section 889 is based on numerous false, unproven, and untested propositions,” said Song Liuping, Huawei’s chief legal officer. “Contrary to the statute’s premise, Huawei is not owned, controlled, or influenced by the Chinese government. Moreover, Huawei has an excellent security record and program. No contrary evidence has been offered.”

According to Bloomberg, legal experts think that the case has little chance of succeeding based on a precedent set in a similar case launched by Russian security firm Kaspersky Lab in 2018. In that case, Kaspersky argued that the ban on its products by the U.S. Department of Homeland Security was unconstitutional since it “failed to provide Kaspersky Lab with adequate due process.”

U.S. District Judge Colleen Kollar-Kotelly ruled against Kaspersky’s lawsuit in May. She said that “the United States government’s networks and computer systems are extremely important strategic national assets” and that “these defensive actions may very well have adverse consequences for some third-parties. But that does not make them unconstitutional.”

Photo: Duncan Riley