Huawei Technologies USA, Inc. et al v. United States of America, et al

Filing 1

COMPLAINT against Alexander Acosta, Alex Azar, II, David L. Bernhardt, Betsy DeVos, Emily Webster Murphy, Sonny Perdue, UNITED STATES OF AMERICA, Robert Wilkie ( Filing fee $ 400 receipt number 0540-7168748.), filed by Huawei Technologies Co., Ltd., Huawei Technologies USA, Inc.. (Attachments: #1 Civil Cover Sheet)(Siebman, Clyde)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
§
§
and
§
§
Huawei Technologies Co., Ltd.,
§
§
Plaintiffs,
§
v.
§
§
The United States of America,
§
§
Emily Webster Murphy, Administrator of
§
the General Services Administration,
§
§
Alexander Acosta, Secretary of Labor,
§
§
Alex Azar II, Secretary of Health and
§
Human Services,
§
§
Betsy DeVos, Secretary of Education,
§
§
Sonny Perdue, Secretary of Agriculture,
§
§
Robert Wilkie, Secretary of Veterans
§
Affairs,
§
and
§
§
David L. Bernhardt, Acting Secretary of the §
Interior,
§
§
in their official capacities,
§
§
Defendants.
§
§
Huawei Technologies USA, Inc.,

Civil Action No. ________

COMPLAINT
Plaintiffs Huawei Technologies USA, Inc., and Huawei Technologies Co., Ltd.
(collectively, “Plaintiffs” or “Huawei”), by and through their attorneys, bring this action under
the United States Constitution and 28 U.S.C. §§ 1331, 2201, and 2202, seeking a declaration that

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pertinent provisions of section 889 of the John S. McCain National Defense Authorization Act
for Fiscal Year 2019, Pub. L. No. 115-232 (“NDAA” or “2019 NDAA”), that define certain
equipment and services produced or provided by Huawei Technologies Co., Ltd. and its
subsidiaries and affiliates as “covered telecommunications equipment or services,” id.
§ 889(f)(3)(A), (C), and consequently restrict the procurement and use of such equipment by
executive agencies, federal government contractors, and federal loan and grant recipients, id.
§ 889(a)-(b), are unconstitutional. Plaintiffs also seek an injunction and any other appropriate
relief. In support thereof, Plaintiffs allege as follows:
PRELIMINARY STATEMENT
1.

The Framers of the United States Constitution were deeply concerned about the

potential abuse of legislative power. They believed that “[t]he legislative department is
everywhere extending the sphere of its activity, and drawing all power into its impetuous
vortex,” and that as a result, “[i]t is against the enterprising ambition of this department that the
people ought to indulge all their jealousy and exhaust all their precautions.” The Federalist No.
48 (James Madison). The Framers accordingly granted Congress only limited and enumerated
legislative powers; divided these powers between a House of Representatives and a Senate;
subjected the exercise of these powers to strict procedures; and vested the executive and judicial
powers in separate, independent branches of the government.
2.

One of the Framers’ particular concerns was that the legislature would use its

power to target specific individuals for adverse treatment. The Framers believed that, if the
legislature could itself sanction specific persons “without hearing or trial” conducted by the
Executive or the courts, “no man can be safe, nor know when he may be the innocent victim of a
prevailing faction.” 3 The Papers of Alexander Hamilton, at 485–86 (Harold C. Syrett ed. 1961–

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1979). Thus, even where the Framers otherwise granted Congress enumerated legislative powers,
they prohibited it from using those powers to enact bills of attainder that impose punishment on
specific individuals identified by the legislature. Further, through the Due Process Clause, they
prohibited legislation that would single out particular persons for deprivations of liberty. Finally,
through the Vesting Clauses and the resulting separation of powers, the Framers prohibited
legislation that, rather than simply enacting a general rule, applied a rule to an individual case or
person.
3.

Provisions of section 889 of the 2019 NDAA violate these constitutional

limitations. In particular, section 889 specifically targets Plaintiff Huawei Technologies Co.,
Ltd., and its subsidiaries and affiliates, such as Plaintiff Huawei Technologies USA, Inc. Section
889 calls out Huawei by name, legislatively adjudicates it to be connected to the Government of
the People’s Republic of China, and precludes U.S. government agencies not only from
purchasing specified Huawei equipment and services, but also from contracting with or awarding
grants or loans to third parties who purchase or use such equipment or services—regardless of
whether the equipment or services have any impact on or connection to the government of the
United States. The actual and intended effect of these prohibitions is to bar Huawei from
significant segments of the U.S. market for telecommunications equipment and services, thereby
inflicting immediate and ongoing economic, competitive, and reputational harms on Huawei.
4.

Section 889 permanently imposes these burdens and sanctions on Huawei without

giving it a fair hearing or the opportunity to rebut the allegations against it, and without
opportunity for escape. The statute specifically and expressly applies these broad prohibitions
and sanctions only to Huawei and one other named entity. In contrast, the statute gives the
Secretary of Defense, in consultation with the FBI Director or the Director of National

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Intelligence, authority to determine whether other entities are owned or controlled by, or
otherwise connected to, the Chinese government—determinations that are then subject to judicial
review under the Administrative Procedure Act. The statute affords those Officers of the United
States the discretion to change their determinations if they find, for example, that the facts about
a particular entity have changed. But those Officers have no such discretion with respect to
Huawei: even if those Officers definitively find that Huawei has no connection to the Chinese
government, the prohibitions targeting, and sanctions imposed on, Huawei will remain in place.
In short, section 889 blacklists Huawei and bars it from significant sectors of the U.S.
telecommunications market, all without giving Huawei a fair hearing at which it could be
informed of and confront the accusations made against it.
5.

In so doing, section 889 violates at least three constitutional provisions: It violates

the Bill of Attainder Clause by singling out Huawei for punishment—blacklisting it, impugning
both its general reputation and its specific commitment to honoring the laws of the United States,
and denying it any procedure through which it can clear its name and escape sanction. Section
889 also violates the Due Process Clause by selectively depriving Huawei of its liberty—
severely curtailing its freedom to do business, stigmatizing it by effectively branding it a tool of
the Chinese government and a risk to U.S. security, and denying it any pre-deprivation legal
process to confront the congressional charges against it. And section 889 violates the Vesting
Clauses and the resulting separation of powers by legislatively adjudicating Huawei to be
“guilty” of an alleged connection to the Chinese government, and by implication a threat to U.S.
security, rather than leaving it to the Executive and the courts to make and adjudicate any such
charges.

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6.

Moreover, as a practical matter, section 889’s focus on Huawei (and one other

company), apparently based on Huawei Technologies Co., Ltd.’s national origin, makes no
sense. Section 889 permits manufacturers with extensive operations in China and joint venture
agreements with the Chinese government to continue to sell equipment to the U.S. Government
and its contractors and grant and loan recipients, while legislatively singling out Huawei—a
private, non-government-owned company controlled by a private Board of Directors—and just
one other entity for sweeping adverse treatment. Further, the government itself has recognized
that virtually all manufacturers of telecommunications equipment in the world face cybersecurity
risks as a result of vulnerabilities in the global supply chain. Yet section 889 does nothing to
address these global supply chain risks. Thus, if the central purpose of section 889 is to prevent
Chinese-origin equipment from being used, directly or indirectly, by the U.S. Government, the
provision is ineffective on its face. Moreover, it is overbroad, because it bars use (by government
contractors) or purchase (by government grant and loan recipients) of Huawei equipment and
services even where Huawei equipment or services are not being used to support a governmentrelated function.
7.

In short, Section 889 is not only contrary to the economic interests of the United

States and its citizens, and ineffective at advancing U.S. security interests, it is also contrary to
the Constitution of the United States. Huawei is a world-leading provider of information and
communications technology products and services, offering more advanced equipment at lower
costs than any other such company, and doing so in areas of the world and of the United States
that other providers serve less effectively or not at all. Without Huawei equipment and services,
consumers in the United States (particularly in rural and poor areas) will be deprived of access to
the most advanced technologies, and will face higher prices and a significantly less competitive

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market. In the area of 5G mobile service in particular, American consumers will have reduced
access to state-of-the art networks and suffer from inferior service. At the same time, Huawei
equipment and services are subject to advanced security procedures, and no backdoors, implants,
or other intentional security vulnerabilities have been documented in any of the more than 170
countries in the world where Huawei equipment and services are used. Moreover, while there are
real risks in the global supply chain that can and should be addressed by comprehensive supply
chain strategies and rules, those risks are not rationally or effectively addressed by singling out
and blacklisting equipment of specific companies such as Huawei. Indeed, as noted, Huawei is a
privately-owned company controlled by a private Board of Directors. While courts do not have
the authority to protect the people from all the ill-advised aspects of the NDAA, they do have the
duty to protect Huawei and others from its unconstitutional aspects—including its specific
targeting of Huawei for punishment, its deprivation of Huawei’s liberty without a fair and
impartial hearing, and its usurpation of the charging and adjudicative powers reserved by the
Constitution to the executive and judicial branches. Plaintiffs respectfully request that the Court
declare unconstitutional and enjoin enforcement of those discrete aspects of section 889 that
violate the Constitution, while leaving all other aspects of the NDAA, and the remainder of
section 889 itself, intact.
THE PARTIES
A.

Plaintiffs

8.

Plaintiff Huawei Technologies USA, Inc. (“Huawei USA”), is a corporation

organized under Texas law with headquarters at 5700 Tennyson Parkway #500, in Plano, Texas,
75024.

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9.

Plaintiff Huawei Technologies Co., Ltd. (“Huawei Technologies”), is a limited

liability company organized in Shenzhen, Guangdong Province, with headquarters at Huawei
Industrial Base, Shenzhen 518129, in the People’s Republic of China.
10.

Plaintiffs Huawei USA and Huawei Technologies are wholly-owned subsidiaries

of Huawei Investment & Holding Co. Ltd. (“Huawei Investment”), and are therefore affiliates. In
addition, plaintiff Huawei USA is an indirect subsidiary of plaintiff Huawei Technologies.
11.

Huawei Investment is a resident of China and has its corporate headquarters at

Huawei Industrial Base, Shenzhen 518129, People’s Republic of China.
12.

Huawei Investment is a private company wholly owned by its employees. Its

direct shareholders are an employee-stock-ownership plan named the Union of Huawei
Investment & Holding Co., Ltd., and the founder of Huawei, Mr. Ren Zhengfei. The Union of
Huawei Investment & Holding Co., Ltd. involved more than 97,000 employees as of February
2019. Mr. Ren’s investment accounted at that time for only approximately 1.14% of Huawei
Investment’s total share capital.
B.

Defendants

13.

The United States of America is a defendant based on the actions of the United

States Congress in enacting the NDAA, and because it is a proper defendant under 5 U.S.C.
§ 702.
14.

Defendant Emily Webster Murphy is the Administrator of the General Services

Administration (GSA). She is sued in her official capacity.
a. Defendant Murphy leads the General Services Administration in its mission of
providing centralized procurement for the federal government. GSA’s
responsibilities include drafting and administering the Federal Acquisition
Regulation, which applies to all executive agency acquisitions, subject to

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certain exceptions. See 41 U.S.C. §§ 1121, 1303(a)(1); 48 C.F.R. ch. 1.
Section 889 of the NDAA directs the heads of federal executive agencies to
take or refrain from taking certain actions with regard to government
contracts, including contracts subject to the Federal Acquisition Regulation.
b. The NDAA directs Defendant Murphy to take or refrain from taking certain
actions with regard to the procurement of certain equipment, systems, or
services produced or provided by Huawei; with regard to contracts between
GSA and any entities that use certain equipment, systems, or services
provided by Huawei; and with regard to any loans or grants awarded by GSA
to entities that use certain equipment, systems, or services provided by
Huawei. Defendant Murphy is a proper defendant under 5 U.S.C. § 702.
15.

Defendant Alexander Acosta is the Secretary of Labor. He is sued in his official

capacity. The NDAA directs Defendant Acosta to take or refrain from taking certain actions with
regard to the procurement of certain equipment, systems, or services produced or provided by
Huawei; with regard to contracts between the Department of Labor and any entities that use
certain equipment, systems, or services provided by Huawei; and with regard to loans or grants
awarded by the Department of Labor to entities that use certain equipment, systems, or services
provided by Huawei. Defendant Acosta is a proper defendant under 5 U.S.C. § 702.
16.

Defendant Alex Azar II is the Secretary of Health and Human Services. He is

sued in his official capacity. The NDAA directs Defendant Azar to take or refrain from taking
certain actions with regard to the procurement of certain equipment, systems, or services
produced or provided by Huawei; with regard to contracts between the Department of Health and
Human Services and any entities that use certain equipment, systems, or services provided by

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Huawei; and with regard to loans and grants awarded by the Department of Health and Human
Services to entities that use certain equipment, systems, or services provided by Huawei.
Defendant Azar is a proper defendant under 5 U.S.C. § 702.
17.

Defendant Betsy DeVos is the Secretary of Education. She is sued in her official

capacity. The NDAA directs Defendant DeVos to take or refrain from taking certain actions with
regard to the procurement of certain equipment, systems, or services produced or provided by
Huawei; with regard to contracts between the Department of Education and any entities that use
certain equipment, systems, or services provided by Huawei; and with regard to loans and grants
awarded by the Department of Education to entities that use certain equipment, systems, or
services provided by Huawei. Defendant DeVos is a proper defendant under 5 U.S.C. § 702.
18.

Defendant Sonny Perdue is the Secretary of Agriculture. He is sued in his official

capacity. The NDAA directs Defendant Perdue to take or refrain from taking certain actions with
regard to the procurement of certain equipment, systems, or services produced or provided by
Huawei; with regard to contracts between the Department of Agriculture and any entities that use
certain equipment, systems, or services provided by Huawei; and with regard to loans and grants
awarded by the Department of Agriculture to entities that use certain equipment, systems, or
services provided by Huawei. Defendant Purdue is a proper defendant under 5 U.S.C. § 702.
19.

Defendant Robert Wilkie is the Secretary of Veterans Affairs. He is sued in his

official capacity. The NDAA directs Defendant Wilkie to take or refrain from taking certain
actions with regard to the procurement of certain equipment, systems, or services produced or
provided by Huawei; with regard to contracts between the Department of Veterans Affairs and
any entities that use certain equipment, systems, or services provided by Huawei; and with
regard to loans and grants awarded by the Department of Veterans Affairs to entities that use

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certain equipment, systems, or services provided by Huawei. Defendant Wilkie is a proper
defendant under 5 U.S.C. § 702.
20.

Defendant David L. Bernhardt is the Acting Secretary of the Interior. He is sued

in his official capacity. The NDAA directs Defendant Bernhardt to take or refrain from taking
certain actions with regard to the procurement of certain equipment, systems, or services
produced or provided by Huawei; with regard to contracts between the Department of the
Interior and any entities that use certain equipment, systems, or services provided by Huawei;
and with regard to loans or grants awarded by the Department of the Interior to entities that use
certain equipment, systems, or services provided by Huawei. Defendant Bernhardt is a proper
defendant under 5 U.S.C. § 702.
CONSTITUTIONAL PROVISIONS
21.

This action arises under the United States Constitution’s Bill of Attainder Clause,

art. I, § 9, cl. 3, the Due Process Clause of the Constitution’s Fifth Amendment, id. amend. V,
and the Constitution’s Vesting Clauses and resulting separation of powers, see id. art. I, § 1
(legislature); id. art. II, § 1, cl. 1 (executive); id. art. III, § 1 (judiciary).
22.

The Bill of Attainder Clause states: “No Bill of Attainder . . . shall be passed.” Id.

art. I, § 9, cl. 3.
23.

The Due Process Clause of the Fifth Amendment provides: “No person shall . . .

be deprived of life, liberty, or property, without due process of law.” Id. amend. V.
24.

The Constitution’s Vesting Clauses and resulting separation of powers grant

Congress only limited, enumerated “legislative powers,” and place the “executive” and “judicial”
powers in the President and the courts, respectively. See id. art. I, § 1 (legislature); id. art. II, § 1,
cl. 1 (executive); id. art. III, § 1 (judiciary).

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JURISDICTION AND VENUE
25.

This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because this

action arises under the United States Constitution.
26.

The Court has authority to grant declaratory and injunctive relief pursuant to the

Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; 5 U.S.C. § 702; and the Court’s inherent
equitable powers.
27.

Under federal common law, a party may sue “to enjoin unconstitutional actions

by . . . federal officers,” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015);
see id. (citing Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902)), and no
waiver of sovereign immunity is necessary, because sovereign immunity does not apply in such
circumstances. E.g., Dugan v. Rank, 372 U.S. 609, 621–22 (1963). Furthermore, the United
States has waived its sovereign immunity pursuant to 5 U.S.C. § 702.
28.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1)(C), because the

United States and officers or employees of agencies of the United States acting in their official
capacities are defendants, and because Plaintiff Huawei USA has its principal place of business
in this district, based on its headquarters in Plano, which is located within this district. No real
property is involved in this action.
FACTUAL ALLEGATIONS
I.

BACKGROUND ON HUAWEI
A.

Overview Of Huawei Technologies

29.

Huawei Technologies is a global leader in information and communications

technology products and services. It was established in 1987 in Shenzhen, Guangdong Province,
a special economic zone where market-oriented reforms were first introduced in China.

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30.

Huawei Technologies is owned by its founder and employees (via an employee-

stock-ownership plan), and is controlled by its Board of Directors, all 17 members of which are
private citizens who hold no positions in the Chinese government. Huawei Technologies (and its
parent Huawei Investment) has no Chinese government ownership.
31.

Huawei Technologies produces, among other things, products (including routers

and layer 3 switches) that are capable of routing or redirecting user data traffic.
B.

Overview Of Huawei USA

32.

Plaintiff Huawei USA employs approximately 250 employees and provides

information and communications technology equipment and services to 85 active U.S. wireline
and wireless carriers and numerous enterprise customers, which include U.S. corporations,
schools, and other institutions.
33.

Huawei USA has a Board of Directors. None of the board members hold any

positions in the Chinese government. Huawei USA’s Board is responsible for, among other
things, overseeing and managing the business of the corporation and setting policy to be
implemented by the officers of the corporation; approving and directing the officers of the
corporation to implement the development strategy and business plans of the corporation; and
nominating, appointing, dismissing, and evaluating the performance of senior management.
Huawei USA has no Chinese government ownership.
34.

Huawei USA markets and sells, among other things, products (including routers

and layer 3 switches) that are capable of routing or redirecting user data traffic.

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II.

U.S. GOVERNMENT INVESTIGATION OF THE GLOBAL CYBERSECURITY
THREAT
35.

The government of the United States has been taking steps to identify and

mitigate cybersecurity risks—including, in particular, supply chain risks—for more than twenty
years.
a. In 1998, President Clinton issued a directive setting forth “the policy of the
United States to assure the continuity and viability of critical infrastructures”
such as telecommunications networks by eliminating their vulnerabilities to
both physical and cyber attacks. The White House, Presidential Decision
Directive/NSC-63, at 2 (May 22, 1998), https://fas.org/irp/offdocs/pdd/pdd63.pdf.
b. In 2002, Congress passed the Federal Information Security Management Act
(FISMA), which required the development of minimum standards for the
security of federal information systems. 40 U.S.C. § 11331. Pursuant to
FISMA, the National Institute of Standards and Technology (NIST) developed
two standards, one of which as of 2009 specifically requires government
agencies to take measures to protect their supply chains. Gov’t Account.
Office, IT Supply Chain, at 7–9 (2012), https://bit.ly/2CnBuUe.
c. In 2003, the Executive Branch released the first national cybersecurity
strategy, which identified telecommunications as a critical infrastructure that
the Government must protect from cyberattack. The White House, Nat’l
Strategy to Secure Cyberspace, at 1, 4, 33–34 (Feb. 2003), https://bit.ly/
1GxRVq6.

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d. In 2008, President Bush launched the Comprehensive National Cybersecurity
Initiative (CNCI), which called for a “detailed strategy and implementation
plan to better manage and mitigate supply chain vulnerabilities.” The White
House, Nat’l Sec. Presidential Directive NSPD-54/Homeland Sec. Presidential
Directive HSPD-23, at 11–12 (Jan. 8, 2008), https://bit.ly/2CUu7oA.
e. In February 2009, President Obama directed the National Security Council
and Homeland Security Council to conduct a review in order to develop a
strategic framework to coordinate and integrate government plans and
activities addressing cyber risks. The White House, Fact Sheet: Cyberspace
Policy Review (May 29, 2009), https://fas.org/irp/news/2009/05/cyberfs.html. The resulting report recognized that “the emergence of new centers
for manufacturing, design, and research across the globe raises concerns about
the potential for easier subversion of computers and networks through subtle
hardware or software manipulations,” and called for “[a] broad, holistic
approach to risk management . . . rather than a wholesale condemnation of
foreign products and services.” The White House, Cyberspace Policy Review,
at 34 (May 29, 2009), https://fas.org/irp/eprint/cyber-review.pdf.
f. In May 2009, President Obama accepted the recommendations of the report
and subsequently refined the CNCI into twelve initiatives, one of which called
for a “multi-pronged approach” to addressing “[r]isks stemming from both the
domestic and globalized supply chain . . . in a strategic and comprehensive
way over the entire lifecycle of products, systems and services.” The White
House, The Comprehensive National Cybersecurity Initiative,

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https://obamawhitehouse.archives.gov/issues/foreign-policy/cybersecurity/
national-initiative. In this initiative, the President recognized that “[m]anaging
this risk will require a greater awareness of the threats, vulnerabilities, and
consequences associated with acquisition decisions; the development and
employment of tools and resources to technically and operationally mitigate
risk across the lifecycle of products (from design through retirement); the
development of new acquisition policies and practices that reflect the complex
global marketplace; and partnership with industry to develop and adopt supply
chain and risk management standards and best practices.” Id.
g. In 2012, the Director of National Intelligence testified before Congress that
“[c]yber threats pose a critical national and economic security concern,” and
that one of the “greatest strategic challenges regarding cyber threats” was
mitigating “the highly complex vulnerabilities associated with the IT supply
chain for US networks.” James R. Clapper, Unclassified Statement for the
Record on the Worldwide Threat Assessment of the US Intelligence
Community for the Senate Select Committee on Intelligence, at 7–8 (Jan. 31,
2012), https://bit.ly/2J5gtiJ.
h. In 2018, NIST released a new version of its cybersecurity framework that
provided further guidance on how organizations (including government
agencies) should assess and manage cyber supply chain risks. Nat’l Inst. of
Standards & Tech., Framework for Improving Critical Infrastructure
Cybersecurity, at 15–17, 28–29 (Apr. 16, 2018), https://nvlpubs.nist.gov/
nistpubs/CSWP/NIST.CSWP.04162018.pdf. The framework explains that

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steps to mitigate cyber supply chain risks may include determining
cybersecurity requirements for suppliers, enacting those requirements through
mechanisms such as contracts, and verifying that those requirements are being
met through various assessment methodologies. Id.
i. Also in 2018, the Department of Homeland Security set up an interagency
Supply Chain Task Force to “examine and develop consensus
recommendations for action to address key strategic challenges to identifying
and managing risk associated with the global ICT supply chain and related
third-party risk.” Dep’t of Homeland Sec., ICT Supply Chain Task Force Fact
Sheet (July 31, 2018), https://bit.ly/2Ctftnl. The task force is “intended to
focus on potential near- and long-term solutions to manage strategic risks
through policy initiatives and opportunities for innovative public-private
partnership.” Id.
j. In addition, in December of 2018, Congress passed and the President signed
the SECURE Technology Act, which incorporated the Federal Acquisition
Supply Chain Security Act of 2018. This Act requires development of
government-wide criteria and rules for identifying, assessing, and mitigating
supply chain risks posed by any global supplier to the government. It also
provides procedural protections to suppliers potentially excluded from a
procurement, such as notice, opportunity for rebuttal, and judicial review.
36.

In taking the steps described in Paragraph 35, the Executive Branch (and,

sporadically, Congress) recognized that supply chains are global, and did not claim, pretend, or
suggest that cybersecurity risks could be meaningfully addressed by taking targeted action aimed

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only at particular companies. The White House, Nat’l Cyber Strategy, at 26 (Sep. 2018),
https://bit.ly/2xrQ0XK; Framework for Improving Critical Infrastructure Cybersecurity, at 15–17
(“Supply chains are complex, globally distributed, and interconnected sets of resources and
processes between multiple levels of organizations.”); Dep’t of Homeland Sec., ICT Supply
Chain Task Force Fact Sheet. Rather, as NIST has explained, information and communicationstechnology “products . . . or services originating anywhere (domestically or abroad) might
contain vulnerabilities that can present opportunities for . . . supply chain compromises.” Nat’l
Inst. of Standards & Tech., NIST Special Publication 800-191, Supply Chain Risk Management
Practices for Federal Information Systems and Organizations, at 1–2 (Apr. 2015),
https://nvlpubs.nist.gov/nistpubs/specialpublications/nist.sp.800-161.pdf.
37.

Consistent with this approach, experts have recognized that the global

telecommunications supply chain is complex and dynamic, and that security risks arise from the
cumulative supply chain—not the vendor whose name happens to appear on the finished product.
Accordingly, identifying risk requires, among other steps, an individualized analysis of who
develops and manufactures particular equipment, its components, and software; where that work
takes place; the arrangements under which the work happens (for example, joint ventures with
state-owned enterprises, or manufacturing by wholly-owned subsidiaries); and the ability of a
foreign state or other malicious actor to introduce backdoors or other vulnerabilities given these
factors.
38.

With respect to supply chain risk related to China in particular,

telecommunications companies other than Huawei are owned by Chinese investors; and
numerous other companies have manufacturing facilities in China, embed components imported
from China, use software written by Chinese programmers, or have other ties to China. For

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example, two major telecommunications companies operate joint ventures with the Chinese
government and manufacture equipment in China.1 Non-Chinese firms in the
telecommunications equipment sector that operate in China or have joint ventures with the
Chinese government are also subject to Chinese laws and regulatory authority.
III.

CONGRESSIONAL INTERFERENCE WITH HUAWEI’S U.S. BUSINESS
39.

Despite this recognition of the broad and interconnected nature of global supply

chain risk by the Executive Branch (and, sporadically, Congress), Congress has over the past
several years focused most of its energy in this sphere on singling out individual companies for
adverse treatment in a way that fails to reflect the dispersed nature of the global supply chain.
Rather than concentrating on developing the “broad, holistic approach to risk management”
recommended by the Executive Branch, Congress has instead chosen to engage in the “wholesale
condemnation” of particular “foreign products and services” that the Executive had warned
against. See Cyberspace Policy Review, at 34 (Executive Branch report discussed in Paragraph
35(e)). That targeted condemnation has been based on unsubstantiated fear of selected
companies with foreign national origin, rather than on evidence and facts.
40.

Indeed, even though (as noted above) there are other technology companies

owned by Chinese investors or operating in China, in recent years, Congress has singled out
Huawei for special scrutiny and adverse action on the purported basis of unsubstantiated and
largely unarticulated concerns, themselves apparently stemming from the belief that Huawei is
owned, controlled, or subject to improper influence by the Chinese government.
1

See Nokia Corporation, Stock Exchange Release, Nokia and China Huaxin sign
definitive agreements for creation of new Nokia Shanghai Bell joint venture, Nokia (May 18,
2017), https://tinyurl.com/y9vwu876; Nokia Corp., Annual Report (Form 20-F) (Mar. 22, 2018),
available at https://bit.ly/2Aghem0; China, Ericsson, https://bit.ly/2Oxad9r (last visited Mar. 6,
2019) (noting that Ericsson “has several joint venture companies in China, including production
companies”).

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41.

As early as October 2010, four members of Congress sent a letter to the Chairman

of the Federal Communications Commission (FCC), requesting information about the FCC’s
plans for protecting the security of U.S. telecommunications networks. Letter from Senator Jon
Kyl et al. to Chairman Julius Genachowski (Oct. 19, 2010).2
a. The letter asserted that Huawei and another company, ZTE, were
“aggressively seeking to supply sensitive equipment for U.S.
telecommunications infrastructure.” Id.
b. The letter then stated that the members of Congress were “very concerned that
these companies are being financed by the Chinese government and are
potentially subject to significant influence by the Chinese military which may
create an opportunity for manipulation of switches, routers, or software
embedded in American telecommunications network[s] . . . . This would pose
a real threat to our national security.” Id.
42.

In light of such congressionally stated concerns, Huawei pledged in a February

2011 open letter to “remain open to any investigation deemed necessary by American authorities
and . . . to cooperate transparently with all government agencies.” Huawei Open Letter from Ken
Hu, Deputy Chairman of Huawei Technologies, Chairman of Huawei USA, at 5 (Feb. 2011).3 At
the time, Huawei stated that it “ha[d] faith in the fairness and justness of the United States.” Id.
at 6. It further stated that it “believe[d] the results of any thorough government investigation
[would] prove that Huawei is a normal commercial institution and nothing more.” Id.

2

Available at https://www.hsgac.senate.gov/media/minority-media/congressionalleaders-cite-telecommunications-concerns-with-firms-that-have-ties-with-chinese-government.
3

Available at http://online.wsj.com/public/resources/documents/Huawei20110205.pdf.

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43.

In early 2011, the House Permanent Select Committee on Intelligence

(“Committee”) determined that, “without a full investigation into [Huawei’s] corporate activities,
the United States could not trust its equipment and services in U.S. telecommunications
networks.” U.S. House of Representatives, Select Committee on Intelligence, Investigative
Report on the U.S. National Security Issues Posed by Chinese Telecommunications Companies
Huawei and ZTE, at iv (Oct. 8, 2012) (“HPSCI Report”).4
44.

In response, Huawei made officials available to Congress in February 2012 for

“extensive interviews.” HPSCI Report at 8. House Committee staff interviewed Huawei
executives at Huawei’s corporate headquarters in Shenzhen, China, including John Suffolk,
Huawei’s Global Security Officer, and also toured Huawei’s headquarters, “reviewed company
product lines, and toured a large manufacturing factory.” Id. at 8–9. The Rotating Chief
Executive Officer, the Secretary of the Board, other corporate executives, and former and present
employees also sat for “extensive interviews” lasting for “hours.” Id. at v, 8, 10.
45.

In May 2012, Committee members, including Representatives Devin Nunes,

Michele Bachmann, Dutch Ruppersberger, and Adam Schiff, met with Ren Zhengfei, founder
and CEO of Huawei, in Hong Kong. Id. at 9.
46.

On September 13, 2012, the Committee held a congressional hearing at which a

Huawei representative testified. Id.
47.

In October 2012, the Committee published the HPSCI Report. In the report, the

Committee admitted that it could “not prove wrongdoing” by Huawei. Id. at vi. Nonetheless, the
Committee insisted that Huawei had not proved its own innocence, because it had failed to

4

Available at https://fas.org/irp/congress/2012_rpt/huawei.pdf.

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“provide greater details that would explain its relationships with the Chinese government in a
way that would alleviate security concerns.” Id. at 22.
48.

The report specifically attributed the alleged security threat posed by Huawei

equipment and services to Huawei’s alleged relationship with, and alleged potential to be
controlled by, the Chinese government. But the report cited no evidence that any equipment
manufactured or services provided by Huawei had ever posed a national security risk. Nor did it
cite any evidence that the Chinese government owned or controlled or was connected to Huawei,
such that it could uniquely influence Huawei in any way.
49.

Further, despite a lack of actual evidence that Huawei was connected to the

Chinese government, much less that it had engaged in “wrongdoing” (at page vi) or that its
equipment and services posed a security threat, the report recommended (at page 45) that “U.S.
government systems, particularly sensitive systems, should not include Huawei . . . equipment,
including in component parts,” and, “[s]imilarly,” that “government contractors—particularly
those working on contracts for sensitive U.S. programs—should exclude . . . Huawei equipment
in their systems.”
IV.

THE 2019 NDAA
50.

No statutory action was taken to implement the Committee’s recommendations

between 2012 and 2017.
51.

In 2017, however, notwithstanding the lack of evidence against Huawei—and in

disregard of the Executive Branch’s recommendation to adopt a “broad, holistic approach to risk
management” (Cyberspace Policy Review, at 34)—Congress enacted a statutory provision, as
part of the National Defense Authorization Act for Fiscal Year 2018, that prohibited the
Department of Defense from using specified Huawei equipment to carry out (1) “the nuclear
deterrence mission of the Department,” or (2) “the homeland defense mission of the Department,

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including with respect to ballistic missile defense.” Pub. L. No. 115-91, § 1656(a)–(b)(1),
(c)(3)(A), 131 Stat. 1283, 1761–62 (2017) (identifying Huawei by name).
52.

Further, on January 9, 2018, Representatives K. Michael Conaway and Liz

Cheney introduced H.R. 4747, a bill to prevent all federal agency heads from procuring or
obtaining, or contracting with any entity that uses, specified telecommunications equipment
produced by Huawei. See H.R. 4747, 115th Cong. § 3 (2018).
53.

On February 7, 2018, Senators Tom Cotton, John Cornyn, and Marco Rubio

introduced S. 2391, a similar bill, in the Senate. See S. 2391, 115th Cong. (2018).
54.

And on April 13, 2018, Representatives Mac Thornberry and Adam Smith

introduced H.R. 5515, a bill that would become the 2019 NDAA.
55.

On April 18, 2018, while these bills were pending, Senate Democratic Leader

Chuck Schumer stated that “Huawei and ZTE are both state-backed companies. Their effort to
enter the American market is a great example of how China attempts to steal our private data and
intellectual property.” 164 Cong. Rec. S2230 (daily ed. Apr. 18, 2018).
56.

By May 15, 2018, when H.R. 5515 was reported to the full House by the House

Committee on Armed Services, it contained provisions similar to those in H.R. 4747 and
S. 2391. See H.R. 5515, 115th Cong. § 880 (as reported in House, May 15, 2018); H.R. Rep. No.
115-676, pt. 1, at 162–63 (2018).
57.

On May 24, 2018, the House of Representatives passed its initial version of the

2019 NDAA.5 That bill included conclusory and unsupported “[f]indings” stating that Huawei
was “subject to state influence,” H.R. 5515, 115th Cong. § 880(a)(4) (as passed by House, May
24, 2018), and “maintain[s] close ties to the [People’s Liberation Army],” id. § 880(a)(1).

5

Available at https://www.congress.gov/115/bills/hr5515/BILLS-115hr5515eh.pdf.

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58.

The bill’s proposed findings incorporated the HPSCI Report’s recommendation

that neither the government nor its contractors should work with Huawei. See id. § 880(a)(12);
supra ¶ 49.
59.

At the same time, the bill proposed to require agencies to submit plans detailing,

among other things, “how the agency plans to deal with the impact of white label technology on
its supply chain whereby the original manufacturer of technology is not readily apparent to a
purchaser or user.” Id. § 880(b)(2).
60.

On June 4, 2018, the Senate received the bill from the House.

61.

On June 13, 2018, Senator Cotton stated on the Senate floor: “These companies

[i.e., 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.” 164 Cong. Rec. S3896 (daily ed. June 13, 2018). Senator Cotton
called Huawei and ZTE “nothing more than extensions of the Chinese Communist Party”; stated
that “Huawei’s CEO was an engineer for the People’s Liberation Army”; and asserted that
Huawei’s “greatest claim to fame is shamelessly stealing the secrets of American companies.”
Id.
62.

Reflecting on the provisions of H.R. 5515, which he was helping to shape, see

164 Cong. Rec. S3362 (daily ed. June 7, 2018) (Sen. Cotton introducing Amendment 2514 to
Amendment 2282 to H.R. 5515), Senator Cotton continued: “This is the first real, concrete action
the United States has taken against Huawei and ZTE, but I and the Senators in this Chamber
believe the death penalty is the appropriate penalty.” 164 Cong. Rec. S3897 (daily ed. June 13,
2018).

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63.

Senator Chris Van Hollen added that “the Government of China exercises

significant control over its telecommunications firms and . . . ZTE and Huawei have close and
very longstanding ties to the government. We also know that China is one of the world’s most
active perpetrators of economic espionage and cyber attacks in the United States.” Id.
64.

Senator Rubio similarly stated in June 2018, that “we should put [Huawei] out of

business,” Marco Rubio, Press Release, Rubio, Banks Raise Concerns of Chinese Espionage
Through University Partnerships with Huawei (June 20, 2018), 6 and that Huawei is a “Trojan
horse” that “shouldn’t be in business in the United States in any capacity.” Gabriella Munoz,
Marco Rubio calls Chinese company Huawei a ‘Trojan horse’, The Washington Times (June 13,
2018).7 He also tweeted that “[n]ow is a good time to start getting rid of your Huawei
investments. Because while ZTE poses a very serious threat to the U.S. Huawei is 100 times
worse.”8
65.

The Senate passed its version of H.R. 5515 on June 18, 2018,9 and a conference

committee was convened to produce a consensus bill.
66.

On June 20, 2018, while Congress was considering the 2019 NDAA, Senators

Cotton and Rubio, along with Representatives K. Michael Conaway, Liz Cheney, and Dutch
Ruppersberger, sent a letter to Google expressing concern about its “strategic partnership” with
Huawei, suggesting that the partnership could pose a “serious risk to U.S. national security,” and

6

Available at https://www.rubio.senate.gov/public/index.cfm/2018/6/rubio-banks-raiseconcerns-of-chinese-espionage-through-university-partnerships-with-huawei.
7

Available at https://www.washingtontimes.com/news/2018/jun/13/marco-rubio-callschinese-huawei-trojan-horse/.
8

See Marco Rubio (@marcorubio), Twitter (June 13, 2018, 3:24 AM),
https://twitter.com/marcorubio/status/1006844815433224192.
9

Available at https://www.congress.gov/115/bills/hr5515/BILLS-115hr5515pap.pdf.

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criticizing Huawei for allegedly having “extensive ties with the Chinese Communist Party.”
Letter from Sen. Tom Cotton et al. to Sundar Pichai, CEO, Google (June 20, 2018).10
67.

On June 27, 2018, Representative Ruben Gallego denounced “ZTE and Huawei

Technologies” as “two bad apples” “owned by the Chinese Government” and noted that “[t]here
is no partisan disagreement on this point.” 164 Cong. Rec. H5805 (daily ed. June 27, 2018). He
added that “we have seen that these companies . . . abuse and manipulate their placement in the
market to attack sensitive American communications.” Id.
68.

The final version of the NDAA passed the House on July 26, 2018.

Representative Smith applauded the bill’s “very strict restrictions . . . on Huawei . . . to make
sure they can’t do business with the U.S. Government or with companies that do business with
the U.S. Government.” 164 Cong. Rec. H7700–01 (daily ed. July 26, 2018).
69.

The final version of the NDAA passed the Senate on August 1, 2018.

70.

On August 13, 2018, President Trump signed the 2019 NDAA into law. The

President issued a signing statement highlighting numerous separation-of-powers concerns with,
and objections to, the statute. The White House, Statement by President Donald J. Trump on
H.R. 5515 (Aug. 13, 2018).11
71.

The text of section 889 of the 2019 NDAA, as enacted in Public Law No. 115-

232, is reproduced in the Appendix to this Complaint. In brief, section 889 prohibits federal
agencies from (1) procuring covered Huawei equipment or services; (2) contracting with entities
that use covered Huawei equipment or services; and (3) awarding grant or loan funds that will be

10

Available at https://www.cotton.senate.gov/files/documents/180620_Congressional_
letter_to_Mr_Sundar_Pichai.pdf.
11

Available at https://www.whitehouse.gov/briefings-statements/statement-presidentdonald-j-trump-h-r-5515/.

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used to procure covered Huawei equipment or services. The first prohibition formally takes
effect one year after section 889’s date of enactment; the second and third prohibitions take
effect two years after enactment.
72.

These prohibitions apply to the heads of all agencies in the Executive Branch. See

41 U.S.C. § 133 (“executive agency” means executive and military departments, as well as
wholly owned government corporations and “independent establishment[s]” under 5 U.S.C.
§ 104(1)); 5 U.S.C. § 104(1) (“independent establishment” “in the executive branch”).
73.

These prohibitions bar Huawei from seeking or winning business with the federal

government as to substantial categories of equipment and services—even as to agencies that
have no significant connection to defense, information security, or national security, such as the
National Rural Development Council within the Department of Agriculture, or the Bureau of
Indian Affairs or the Fish and Wildlife Service within the Department of the Interior.
74.

In addition to barring Huawei from providing covered equipment or services to

federal agencies, these prohibitions impose a second layer of debarment that effectively
disqualifies Huawei from selling covered equipment and services to thousands of private entities.
Specifically, section 889’s prohibitions effectively bar Huawei from seeking or winning
substantial amounts of business with federal contractors or federal grant or loan recipients.
75.

In 2015, the total value of federal contracts awarded was approximately $439.6

billion. Nat’l Contract Mgmt. Ass’n et al., Annual Review of Gov’t Contracting, at 2 (2016 ed.).
Given the size of this market, forcing Huawei’s customers to choose between purchasing covered
Huawei equipment and competing in the market for federal contracts is tantamount to preventing
Huawei from doing business with federal contractors at all, with respect to covered Huawei
equipment.

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76.

Section 889’s prohibitions apply even where a federal contractor has a contract

with an agency that has nothing to do with defense, information security, or national security.
a. Although a separate clause of the statute targets video surveillance equipment
provided by certain companies “for the purpose of public safety, security of
government facilities, physical security surveillance of critical infrastructure,
and other national security purposes,” Pub. L. No. 115-232, § 889(f)(3)(B),
the clauses at issue here include no such “national security purposes”
limitation.
b. For example, on its face, section 889 would effectively prohibit a federal
contractor having contracts with the Department of Interior’s Bureau of Indian
Affairs or Bureau of Land Management, or with the Small Business
Administration, from using Huawei equipment covered by the statute—even
though those agencies have no security function.
77.

Further, in an extraordinary example of overbreadth, section 889’s prohibitions

also apply even if a federal contractor uses Huawei equipment or services covered by the statute
for a function that has nothing to do with the performance of the government contract.
a. For example, if an elevator company buys covered Huawei
telecommunications equipment to use in its offices, section 889 would
effectively preclude it from entering into a contract to repair elevators at the
Department of Agriculture—even if the equipment in the offices has nothing
to do with performance of the elevator repair contract.
78.

Subject to a limited waiver provision, the NDAA’s prohibitions on procurement

and use of Huawei’s covered telecommunications equipment and services are irrevocable.

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a. With respect to most companies, the statute provides that the Secretary of
Defense, in consultation with the Director of National Intelligence or the
Director of the Federal Bureau of Investigation, may designate an entity as
“owned or controlled by, or otherwise connected to, the government of [the
People’s Republic of China]” if he or she “reasonably believes” that such a
designation is accurate. Id. § 889(f)(3)(D). That designation is then subject to
revision or revocation if the relevant facts change.
b. But as to Huawei and one other named entity, even if the Secretary of
Defense, the FBI Director, and the Director of National Intelligence
definitively conclude that Huawei is not owned or controlled by, or otherwise
connected to, the Chinese government, the prohibitions on the use of covered
equipment and services would continue in force.
V.

AGENCIES TAKE ACTION TO IMPLEMENT THE 2019 NDAA
79.

On October 17, 2018, Huawei USA sent letters to Defendants DeVos, Perdue, and

Wilkie, and to then-Secretary of the Interior Ryan Zinke, requesting their respective agencies’
guidance regarding their implementation of the 2019 NDAA. The letters summarized section
889’s prohibitions regarding Huawei, and explained that, while the prohibitions were not yet
effective, they were of “enormous concern to Huawei and its customers,” and were “already
having negative effects on them.” The letters then requested that, in accordance with 5 U.S.C.
§§ 553, 555, and 28 U.S.C. § 530D, and applicable provisions of the Code of Federal
Regulations (see 6 C.F.R. § 3.1–9; 7 C.F.R. § 1.28; 43 C.F.R. § 14.1–4), the agencies issue
guidance, a rule, or an order confirming that they would decline to implement section 889 of the
NDAA as it applies to Huawei, because it conflicts with the United States Constitution. The

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letters specifically requested a response as soon as possible, and in any event no later than
November 15, 2018. As of March 5, 2019, no substantive response has been received.
80.

Also on October 17, 2018, Huawei USA sent letters to Defendants Acosta, Azar,

Perdue, and Wilkie requesting their respective agencies’ guidance regarding their
implementation of the 2019 NDAA with reference to a specific Huawei matter related to the
State of Georgia, with which all of these agencies have contracts. The letters summarized section
889’s prohibitions regarding Huawei, and explained that Huawei had recently submitted a bid to
the State of Georgia that had been denied because Georgia determined that Huawei was “nonresponsible.” The letters further explained that one reason for that determination was that,
“according to Georgia, ‘[a]s of August 13, 2018,’ Huawei technology would ‘largely be banned
from use by the U.S. government and government contractors’ due to the 2019 NDAA, and
many Georgia state entities receive substantial funding from the U.S. government.” The letters
also noted that Georgia had indicated that it would re-evaluate Huawei’s proposal “‘if and
when[] the Federal government’s ban on Huawei technology is lifted.’” In light of this situation,
Huawei’s letters requested “prompt guidance” on each agency’s implementation of the 2019
NDAA. In particular, the letters requested that, in accordance with 5 U.S.C. §§ 553, 555, and 28
U.S.C. § 530D, and applicable provisions of the Code of Federal Regulations (see 6 C.F.R.
§ 3.1–9; 7 C.F.R. § 1.28), the agencies issue guidance, a rule, or an order confirming that they
would decline to implement section 889 of the NDAA as it applies to Huawei, because it
conflicts with the United States Constitution. The letters specifically requested a response as
soon as possible, and in any event no later than November 15, 2018. As of March 5, 2019, no
substantive response has been received.

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81.

Defendants Acosta, Azar, DeVos, Perdue, Wilkie, and Bernhadrt’s failure to

substantively respond to the letters described in paragraphs 79 and 80 constitute a “failure to act”
(see 5 U.S.C. § 551(13)), which qualifies as “agency action” within the meaning of the
Administrative Procedure Act, 5 U.S.C. § 500 et seq.
82.

Also in October 2018, the U.S. Office of Management and Budget published the

Fall 2018 Unified Agenda, which indicated that GSA, the National Aeronautics and Space
Administration, and the Department of Defense “are proposing to amend the Federal Acquisition
Regulation (FAR) to implement section 889” of the 2019 NDAA.12 A Department of Defense
list of open FAR cases indicates that the proposed amendment is currently being drafted.13 The
public has been invited to provide input on this effort to implement section 889. See Department
of Defense, Defense Acquisition Regulations System, Early Engagement Opportunity:
Implementation of National Defense Authorization Act for Fiscal Year 2019, 83 Fed. Reg.
42,883 (Aug. 24, 2018).
83.

These official steps taken to amend the FAR and implement section 889 constitute

“agency action” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 500 et seq.
VI.

INJURIES TO HUAWEI TRACEABLE TO THE 2019 NDAA
A.

The 2019 NDAA Has Injured Huawei.

84.

Even though the prohibitions in the NDAA do not formally become applicable

until one or two years after enactment, depending on the particular provision at issue, section 889
is already causing Huawei actual, ongoing, and imminent injuries.

12

See FAR Case 2018-017, Prohibition on Certain Telecommunications and Video
Surveillance Services or Equipment, RIN 9000-AN83, available at https://www.reginfo.gov/
public/do/eAgendaViewRule?pubId=201810&RIN=9000-AN83.
13

See Department of Defense, Open FAR Cases as of 3/4/2019, at 5, available at
https://www.acq.osd.mil/dpap/dars/opencases/farcasenum/far.pdf.

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85.

Section 889 has injured Huawei by depriving it of its constitutional rights not to

be subjected to a Bill of Attainder or a violation of Due Process.
86.

In addition, Section 889 is causing, and will continue to cause (1) injury to

Huawei’s ability to compete on equal footing with its competitors; (2) actual, direct economic
injury in the form of lost business opportunities and lost sales; and (3) injury to Huawei’s
business reputation and goodwill.
87.

The pertinent provisions of section 889 of the 2019 NDAA have injured, and will

continue to injure, Huawei’s ability to compete on equal footing with its competitors.
a. Government contractors are part of Huawei’s customer base. In recent years,
Huawei USA has, either directly or through its distributors and resellers, done
business or attempted to do business with federal government contractors.
During this period, Huawei USA has sold or attempted to sell, whether
directly or through its distributors and resellers, covered telecommunications
equipment, such as routers and layer 3 switches, to such customers.
b. Huawei has ongoing direct or indirect relationships with customers who are
federal government contractors. And in the absence of section 889 of the 2019
NDAA, it would expect to continue to do business with them in the future—
including by selling them “covered telecommunications equipment.”
Consistent with its established past practices, Huawei would also expect, in
the absence of section 889, to seek new business from government
contractors.
c. In light of the enactment of section 889, however, Huawei’s existing and
potential future government contractor customers are being forced to choose

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between continuing to bid on and carry out U.S. government contracts, and
purchasing or using covered Huawei equipment and services. Beginning on
section 889’s relevant effective date, federal government contractors who use
covered Huawei telecommunications equipment will no longer be eligible to
enter into, or receive extensions or renewals of, contracts with executive
agencies.
d. The forced choice imposed by section 889 has caused, and will continue to
cause, Huawei concrete and particularized injury, and imminent future injury,
because it prevents Huawei from competing for business with federal
contractors on an equal footing with its competitors. Unlike Huawei,
Huawei’s competitors who are not expressly targeted by section 889 can sell
equipment and services to federal contractors without such contractors having
to choose between buying the equipment and doing business with the federal
government.
e. This competitive injury began immediately upon the 2019 NDAA’s
enactment, has continued since then, and will continue into the future so long
as section 889 remains in effect. Huawei’s existing and potential future
customers who are federal government contractors—like the vast majority of
Huawei’s customers—are considering the purchase of equipment, services,
and systems with life spans of greater than two years (the effective date of
some of the NDAA’s prohibitions). The prospect of being prohibited from
either using covered Huawei equipment and services on the one hand, or
continuing to apply for federal contracts on the other hand, is therefore

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affecting their decisions now. Customers do not want to invest money in
equipment and services that will cause the loss of their ability to obtain,
extend, or renew government contracts in less than two years.
f. This present reality has placed Huawei at a competitive disadvantage
compared with other companies that are not subject to the same statutory
restrictions in competing for these customers’ business. Federal government
contractors can purchase covered telecommunications equipment from, for
example, Nokia Corporation (“Nokia”), Telefonaktiebolaget LM Ericsson
(“Ericsson”), and other Huawei competitors without losing their ability to
seek federal contracts after section 889’s relevant effective date. The same
disadvantage will extend to future purchasing decisions made by Huawei’s
current and potential customers who are (or would like to be) federal
contractors. Indeed, as the two-year effective date approaches, customers and
potential customers will feel the pressure of the choice between seeking
federal contracts and using Huawei’s covered products even more acutely.
g. Huawei has suffered a similar injury with respect to entities that receive grants
and loans from the federal government. In recent years, Huawei has, directly
or through its distributors and resellers, done business with federal grant
recipients. During this period, Huawei USA has, directly or through its
distributors and resellers, sold or attempted to sell covered
telecommunications equipment, such as routers and layer 3 switches, to such
customers. Based on this past record, Huawei USA anticipates continuing to

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attempt to sell covered telecommunications equipment to federal grant and
loan recipients.
h. But beginning on section 889’s relevant effective date, federal grant and loan
recipients will no longer be able to use federal grant or loan funds to procure
or obtain covered Huawei telecommunications equipment. In contrast, even
after section 889’s relevant effective date, federal grant and loan recipients
will be able to purchase such equipment from Nokia, Ericsson, and other
Huawei competitors using federal grant or loan funds. The prohibition in
section 889 thus places Huawei at a competitive disadvantage when marketing
and attempting to sell covered telecommunications equipment to federal grant
and loan recipients.
88.

Huawei has also suffered actual, direct economic injury, and reasonably expects

to continue to suffer further actual, direct economic injury, as a result of the pertinent provisions
of section 889 of the 2019 NDAA. Customers have declined to sign contracts with Huawei or for
Huawei equipment or services, ceased negotiations with Huawei or its resellers or
representatives, or otherwise declined to do business with Huawei or purchase its equipment or
services as a direct result of section 889. For example:
a. Huawei resellers have indicated that, since the enactment of the 2019 NDAA
and as a result of its prohibitions, they have in some instances been unable to
persuade their customers to purchase additional Huawei telecommunications
equipment, potentially including routers or layer 3 switches, for their
information technology needs. As a result, these resellers have acquired less
Huawei equipment for resale to end-user customers than they otherwise would

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have, and have paid Huawei less money than they otherwise would have,
causing Huawei direct economic injury.
b. Huawei recently submitted a bid in response to a Request for Proposal (RFP)
issued by the State of Georgia. That RFP was issued to establish one or more
significant statewide contracts with one or more qualified suppliers who could
provide enterprise infrastructure equipment and services—potentially
including routers and other “covered telecommunications equipment” within
the meaning of the NDAA—to Georgia. Based on past practices, Georgia had
predicted that the total value of the contracts was likely to be approximately
$20 million per year. Despite the fact that Huawei is highly qualified to
provide such equipment, Georgia denied Huawei’s bid on the basis that
Huawei was “non-responsible.” One reason for that determination was that,
according to Georgia, “[a]s of August 13, 2018,” Huawei technology would
“largely be banned from use by the U.S. government and government
contractors” due to the 2019 NDAA, and many Georgia state entities receive
substantial funding from the U.S. Government. Georgia further indicated that
it would be willing to re-evaluate Huawei’s proposal “if and when[] the
Federal government’s ban on Huawei technology is lifted.”
89.

The pertinent provisions of section 889 of the 2019 NDAA have also injured, and

will continue to injure, Huawei’s reputation.
a. By suggesting that Huawei is owned or controlled by, or otherwise connected
to, the Chinese government, and implying that Huawei equipment represents a
security threat, section 889 causes immediate injury to Huawei’s reputation.

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b. Section 889 stigmatizes Huawei by suggesting that Huawei is subject to
Chinese government influence, and implying that Huawei equipment is a
security threat—thereby further suggesting that contracting or doing business
with Huawei is unpatriotic and unwise.
c. These reputational injuries are underscored and amplified by numerous
statements made by members of Congress, including Senators Cotton and
Rubio, during the process of section 889’s enactment. As described earlier,
Senator Cotton stated on the Senate floor that Huawei has “proven [itself] to
be untrustworthy,” that it is “nothing more than [an] extension[] of the
Chinese Communist Party,” and that “the only fitting punishment would be to
give [it] the death penalty.” And Senator Rubio similarly stated that Huawei is
a “Trojan horse” that “shouldn’t be in business in the United States in any
capacity.” They also joined other members of Congress in expressing the view
that cooperation between Huawei and other companies operating in the United
States could pose a “serious risk to U.S. national security.”
d. In addition, section 889’s effective requirement that government contractors
stop using covered Huawei equipment they have already purchased in order to
be eligible for new federal contracts, or contract extensions or renewals,
further injures Huawei’s business reputation and goodwill, and exposes it to
potential claims.
e. It is apparent that these reputational injuries are having concrete economic
effects. For example, on February 29, 2019, the State of Vermont’s Agency of
Digital Services (“ADS”) issued a directive to all Vermont state agencies,

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departments, and other administrative agencies prohibiting them from
acquiring, renewing contracts for, or using for any new purpose equipment
manufactured by Huawei, based on the alleged “risks” presented by such
equipment. See Memorandum from John Quinn, Secretary, Agency of Digital
Services, State of Vermont regarding Cybersecurity Standard Update 19-01
(Feb. 19, 2019).14 In support of this assessment and action, ADS specifically
cites and relies upon the 2019 NDAA. Id.
90.

The foregoing instances of concrete and particularized injury to Huawei, as well

as the imminent future injuries Huawei faces, are directly traceable to the enactment of section
889, since that statute’s prohibitions are a direct cause of the stated injuries.
B.

Relief From This Court Will Remedy These Injuries.

91.

By entering a judgment that the pertinent provisions of section 889 of the 2019

NDAA violate the Constitution and enjoining their implementation insofar as they apply to
Huawei, this Court can remedy these injuries by eliminating the violation of Huawei’s
constitutional rights, removing significant barriers to Huawei’s ability to compete on an equal
footing with its competitors, preventing future economic injury created by section 889, and
removing a cause of injury to Huawei’s business reputation and goodwill.
92.

Specifically, a judgment that section 889’s prohibitions regarding procurement

and use of covered Huawei equipment and services violate the Constitution, and enjoining the
implementation of those provisions, would eliminate the Bill of Attainder and Due Process
injuries caused by section 889, and rectify the violation of the separation of powers it represents.

14

Available at https://digitalservices.vermont.gov/sites/digitalservices/files/documents/
policy/ADS_Cybersecurity_Standard_Update_19-01.pdf.

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93.

Declaring these prohibitions unconstitutional and enjoining their implementation

would also remove the categorical and irrebuttable prohibitions on government agencies’
(1) procuring covered Huawei equipment or services; (2) contracting with entities that use
covered Huawei equipment or services; and (3) awarding grant or loan funds that will be used to
procure covered Huawei equipment or services. This in turn would permit Huawei to compete
for business from government contractors and grant and loan recipients without facing the
burdensome competitive disadvantage of requiring such customers to choose between purchasing
covered Huawei equipment and services and retaining the ability to enter into contracts with, or
to receive grants or loans from, the federal government.
94.

Declaring these prohibitions unconstitutional and enjoining their implementation

would also prevent future economic injury by permitting Huawei customers who are actual or
potential government contractors or grant or loan recipients to purchase covered Huawei
equipment and services without jeopardizing their ability to retain and compete for government
contracts, or their ability to obtain federal grants or loans.
95.

Declaring these prohibitions unconstitutional and enjoining their implementation

would also eliminate a cause of Huawei’s reputational injury.
FIRST CLAIM FOR RELIEF
(Bill of Attainder)
96.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though set forth fully herein.
97.

The Bill of Attainder Clause of the United States Constitution states: “No Bill of

Attainder . . . shall be passed.” U.S. Const. art. I, § 9, cl. 3.

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98.

Section 889 of the NDAA singles out Huawei Technologies and its subsidiaries

and affiliates (including Huawei USA) for legislative punishment in two ways:
a.

It singles out Huawei Technologies and one other entity from other
businesses in general by effectively precluding the government, its
contractors, and federal grant and loan recipients from using covered
equipment and services produced or provided by Huawei and the other
entity; and

b.

It singles out Huawei Technologies and one other entity from other
businesses supposedly controlled by, owned by, or otherwise connected to
the Chinese government by permanently prohibiting use of their covered
equipment and services directly in the statute rather than through
discretionary executive adjudication subject to judicial review.

99.

These features of section 889 of the NDAA constitute punishment as to Huawei in

numerous respects. For example:
a. They subject Huawei to a burden—permanent debarment from providing
certain products to the Federal Government, government contractors, and loan
and grant recipients—that has traditionally been considered punitive.
Excluding Huawei from the ability to pursue its ordinary business in the
United States was an avowed purpose of section 889: as Senator Cotton (one
of the advocates of section 889) candidly suggested, one primary objective of
section 889 was to “punish[]” Huawei by “put[ting] [it] out of business in the
United States.”

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b. They subject Huawei to burdens on the basis of its identity, instead of setting
a general standard for the Executive and the courts to apply neutrally to
Huawei and other companies on the basis of a factual record created after
notice, a meaningful opportunity to be heard, and an opportunity for judicial
review. As to most telecommunications companies, section 889 establishes a
process in which the Secretary of Defense must “reasonably” determine
whether a company is “owned or controlled by, or otherwise connected to” the
Chinese government—a determination that is then subject to judicial review to
assess whether the Secretary’s determination was “[un]reasonabl[e],” arbitrary
and capricious, or otherwise unlawful. But section 889 excludes Huawei from
this process, and without evidence, opportunity for hearing, or Executive
judgment subject to judicial review, instead categorically bans use of covered
Huawei equipment and services—apparently based on Congress’ own
unfounded and unreviewable determination that Huawei is guilty of being
owned, controlled by, or connected to the Chinese government, even though a
congressional committee admitted in 2012 that it could not prove any such
judgment.
c. They subject Huawei to a burden that is severe, permanent, and inescapable.
As Senator Cotton suggested, the intent of section 889 is to impose on Huawei
the corporate “death penalty” in the United States: it is nothing less than to put
Huawei USA out of business and to exclude Huawei Technologies from the
United States. And section 889’s restrictions on procurement and use of
covered Huawei equipment and services have no time limits, no expiration

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date, and no mechanism for relief, even if the factual assumptions behind
them are definitively proven false. Indeed, even if all Huawei entities were to
leave China entirely, reincorporate elsewhere, and cease doing any business in
China, section 889’s prohibitions would remain in effect.
d. They call out Huawei by name in a way that brands it, its subsidiaries, and its
affiliates as disloyal. The clear implication of the differential treatment
imposed on Huawei, as compared to most other telecommunications
companies, is that Huawei is a tool of the Chinese government whose
equipment serves as a “Trojan Horse” that allows a hostile foreign
government to infiltrate the United States. Indeed, numerous statements in
section 889’s legislative history—calling Huawei “untrustworthy,” stating that
it is a “state-backed compan[y]” with “close ties to the [People’s Liberation
Army],” and asserting that it is “nothing more than [an] extension[] of the
Chinese Communist Party”—expressly so characterize Huawei.
e. They sanction Huawei in order to serve the punitive purpose of burdening a
person in order to prevent the person from supposedly inflicting future
harm—despite the fact that the Supreme Court has repeatedly held that
specifically-targeted legislation motivated by such a purpose is
unconstitutional.
f. They impose immense burdens that are disproportionate to any alternative
non-punitive purpose, by disqualifying Huawei from doing business with the
Federal Government and a substantial part of the U.S. economy, while
imposing no legislative restrictions on many other telecommunications

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companies that are from or do business in China. The burden section 889
imposes on Huawei is overbroad, barring it from selling covered equipment
and services to contractors and grant and loan recipients whose use of Huawei
equipment has nothing whatsoever to do with their performance of
government contracts. At the same time, section 889 is substantially
underinclusive, because it imposes no legislative restrictions whatsoever on
equipment manufactured by Chinese government joint ventures with other
telecommunications companies, or companies that have manufacturing
facilities in China, embed components imported from China, or use software
written by Chinese programmers. Congress thus made no serious or credible
effort to ensure that section 889 was proportional to problems that it could
legitimately seek to ameliorate. As noted earlier, the U.S. Government itself
has repeatedly recognized that telecommunications supply chain risk is global,
and that virtually all telecommunications infrastructure companies are
potential sources of risk. Instead of focusing its energy on that widespread
problem, Congress chose to scapegoat Huawei based on its alleged and
unsubstantiated connections with the Chinese government.
g. They are based on and motivated by a blatant intent to punish, as
demonstrated by the findings in the version of the bill passed by the House of
Representatives, by statements made by Representatives and Senators when
the bill was pending, and by Congress’ repeated attacks against Huawei over
many years. Senator Cotton candidly stated that a purpose of section 889 was
to “punish[]” Huawei. Further, numerous statements in the legislative record

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suggest that this desire to punish Huawei was motivated at least in part by an
irrational fear that, because Huawei is a successful company organized in
China, it must be subject to the direction and control of the Chinese
government. The 2012 HPSCI Report admitted that the Committee could “not
prove wrongdoing” by Huawei. Nonetheless, undeterred by this lack of
evidence, the findings in the version of the 2019 NDAA passed by the House
state that Huawei is “subject to state influence” and “maintain[s] close ties to
the [People’s Liberation Army].” And during the legislative process, members
of Congress stated that Huawei was “nothing more than [an] extension[] of the
Chinese Communist Party,” and that Huawei had “extensive ties with the
Chinese Communist Party”—suggesting that anti-Communist phobia also
drove enactment of section 889.
h. They impose restrictions on Huawei while offering it no means to avoid or
escape those restrictions, even if the allegations are shown to be false or if
factual circumstances change.
i. They impose restrictions on Huawei while offering no procedural safeguards
through which it can protect its rights. The statute gives Huawei no prior
notice or opportunity to be heard; no statement of charges, much less of the
evidence supposedly supporting the charges; and no fair mechanism for
confronting that evidence and those charges.
j. They single out Huawei for legislatively imposed restrictions even though
neither Huawei company constitutes a legitimate class of one. Indeed, by
directing the Secretary of Defense to identify other companies that are “owned

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or controlled by, or otherwise connected to, the [Chinese] government,”
section 889 itself effectively concedes that the concerns that led to the
enactment of the statute are posed by an open-ended class of companies, not
just by a fixed “class” of one or two companies. This concession is confirmed
by the Executive Branch’s (and, sometimes, Congress’ own) recognition that
telecommunications supply-chain risks are global, and affect or have the
potential to affect virtually all telecommunications companies, no matter their
country of origin.
100.

As legislation that selectively targets Huawei Technologies and Huawei USA and

imposes punishment on them, the pertinent provisions of section 889 of the 2019 NDAA are an
unconstitutional bill of attainder.
SECOND CLAIM FOR RELIEF
(Due Process)
101.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though set forth fully herein.
102.

The Fifth Amendment’s Due Process Clause states: “No person shall . . . be

deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
103.

The Due Process Clause prohibits selective deprivations of liberty.
a. The Due Process Clause allows the Government to deprive a person of liberty
in accordance with general laws, but not by selective enactments. See, e.g., N.
Chapman & M. McConnell, Due Process as Separation of Powers, 121 Yale
L.J. 1672, 1734 (2012).

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b. The Supreme Court has repeatedly stated that a legislative deprivation of
liberty is constitutional only if it is imposed in accordance with general rules.
See, e.g., Hurtado v. California, 110 U.S. 516, 535–36 (1884); United States
v. Winstar Corp., 518 U.S. 839, 897–98 & n.43 (1996) (plurality).
104.

Section 889 of the 2019 NDAA singles out Huawei (and one other entity) through

selective enactment and deprives it of liberty.
a. Section 889 of the NDAA deprives Huawei of liberty by precluding it as a
matter of law from selling covered equipment and services to federal agencies,
contractors, and grantees.
b.

Section 889 also deprives Huawei of liberty by stigmatizing it, declaring that
it is subject to Chinese government influence. It does this despite the fact that,
in the 2012 HPSCI report (on which the 2019 NDAA relies), a congressional
committee admitted that it could not prove that Huawei had connections to the
Chinese government or that it was a security threat. Rather than taking this
conclusion to heart and focusing on holistically addressing the global supply
chain risk by setting forth general standards, applicable to all companies that
have connections with China, that could be implemented by Executive and
judicial fact-finding, Congress doubled down on its unsupported allegations
and irrationally scapegoated Huawei. The resulting stigma has the legal effect
of burdening Huawei and precluding it from selling covered equipment and
services to federal agencies, contractors, and grantees; and the practical effect
of discouraging other entities across the United States from doing business
with Huawei.

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105.

Moreover, section 889 deprives Huawei of these liberty interests by pure

legislative fiat, referencing the unsupported conclusions in the 2012 HPSCI report and adopting
them as “findings” in an early version of the bill, without giving Huawei any pre-deprivation
opportunity to be heard, present evidence, or defend itself. This is the antithesis of the Due
Process Clause’s basic procedural protections of notice and an opportunity to be heard.
106.

This specific legislative targeting, which deprives Huawei of its liberty, without

proper pre-deprivation process, is unconstitutional under the Fifth Amendment’s Due Process
Clause.
THIRD CLAIM FOR RELIEF
(Separation of Powers)
107.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though set forth fully herein.
108.

The Constitution grants Congress only limited, enumerated “legislative powers,”

U.S. Const. art. I, § 1, and confers the “executive” and “judicial” powers on the President and the
courts, respectively, id. art. II, § 1, cl. 1 (executive); id. art. III, § 1 (judiciary).
109.

The limited, enumerated legislative powers encompass only the power to make

legislative rules, not the power to apply legislative rules to individuals, because the power to
apply legislative rules to individuals constitutes the exercise of executive and/or judicial power.
See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (Marshall, C.J.); INS v. Chadha,
462 U.S. 919, 966 (1983) (Powell, J., concurring in the judgment); Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 241 (1995) (Breyer, J., concurring in the judgment).

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110.

Section 889 of the NDAA is an unconstitutional exercise of executive and/or

judicial power insofar as it legislatively prohibits purchase or use of covered Huawei equipment
and services.
a. It singles out Huawei (and one other entity) for adverse treatment based on a
specific congressional adjudication of its alleged connection to the Chinese
government, and, therefore, its fitness to provide covered equipment and
services to the government and its contractors and loan and grant recipients.
Rather than announcing a general rule about the kinds of characteristics that
would preclude a company from providing equipment and services to the
federal government and its contractors and grant and loan recipients, section
889 imposes a legislative adjudication, decreeing that Huawei may not
provide such equipment and services.
b. Although the statute tasks the Secretary of Defense with determining whether
other entities are owned or controlled by, or otherwise connected to, the
Chinese government, and allows judicial review of any such determination, in
Huawei’s case, the statute denies the Secretary and the courts any such
authority, and instead itself specifies that procurement and use of Huawei’s
equipment and services is proscribed. This usurps functions properly
committed to the Executive and Judiciary, and deprives Huawei of the
structural protections available when such functions are exercised by their
constitutionally-assigned branches, such as opportunities for executive
consultation and subsequent judicial review, and the possibility of
reconsideration.

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111.

Section 889 thus violates the Constitution’s Vesting Clauses and resulting

separation of powers.

PRAYER FOR RELIEF
112.

WHEREFORE, Plaintiffs respectfully pray for an order and judgment:
a. Declaring that sections 889(a)-(b), (f)(3)(A), and (f)(3)(C) of the 2019 NDAA,
insofar as they apply to Huawei Technologies and its subsidiaries and
affiliates, violate the Bill of Attainder Clause of the United States
Constitution.
b. Declaring that sections 889(a)-(b), (f)(3)(A), and (f)(3)(C) of the 2019 NDAA,
insofar as they apply to Huawei Technologies and its subsidiaries and
affiliates, violate the Due Process Clause of the Fifth Amendment to the
Constitution.
c. Declaring that sections 889(a)-(b), (f)(3)(A), and (f)(3)(C) of the 2019 NDAA,
insofar as they apply to Huawei Technologies and its subsidiaries and
affiliates, contravene the Constitution’s Vesting Clauses and the resulting
separation of powers.
d. Enjoining the implementation of sections 889(a)-(b), (f)(3)(A), and (f)(3)(C)
of the 2019 NDAA, insofar as they apply to Huawei Technologies and its
subsidiaries and affiliates.
e. Awarding any and all other relief, including costs, as the Court deems just and
proper in these circumstances.

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Dated: March 6, 2019

Respectfully submitted,
__/s/ Clyde M. Siebman_____
Clyde M. Siebman

Clyde M. Siebman
TX Bar No. 18341600
Michael C. Smith
TX Bar No. 18650410
Elizabeth S. Forrest
TX Bar No. 24086207
SIEBMAN, FORREST, BURG & SMITH, LLP
Federal Courthouse Square
300 North Travis Street
Sherman, TX 75090
[phone]
[e-mail]
[e-mail]
[e-mail]

Glen D. Nager (D.C. Bar No. 385405)*
Ryan J. Watson (D.C. Bar No. 986906)*
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
[phone]
[e-mail]
[e-mail]
Counsel of Record
*Pro hac vice motions forthcoming

Andrew D. Lipman (D.C. Bar No. 280123)*
Russell Blau (D.C. Bar No. 366697)*
MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004
[phone]
[e-mail]
[e-mail]
Counsel for Plaintiffs

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APPENDIX
SEC. 889. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND
VIDEO SURVEILLANCE SERVICES OR EQUIPMENT.
(a) PROHIBITION ON USE OR PROCUREMENT.—(1) The head of an executive agency
may not—
(A) procure or obtain or extend or renew a contract to procure or obtain any
equipment, system, or service that uses covered telecommunications equipment or
services as a substantial or essential component of any system, or as critical
technology as part of any system; or
(B) enter into a contract (or extend or renew a contract) with an entity that
uses any equipment, system, or service that uses covered telecommunications
equipment or services as a substantial or essential component of any system, or as
critical technology as part of any system.
(2) Nothing in paragraph (1) shall be construed to—
(A) prohibit the head of an executive agency from procuring with an entity
to provide a service that connects to the facilities of a third-party, such as backhaul,
roaming, or interconnection arrangements; or
(B) cover telecommunications equipment that cannot route or redirect user
data traffic or permit visibility into any user data or packets that such equipment
transmits or otherwise handles.
(b) PROHIBITION

ON

LOAN

AND

GRANT FUNDS.—(1) The head of an executive

agency may not obligate or expend loan or grant funds to procure or obtain, extend or

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renew a contract to procure or obtain, or enter into a contract (or extend or renew a contract)
to procure or obtain the equipment, services, or systems described in subsection (a).
(2) In implementing the prohibition in paragraph (1), heads of executive agencies
administering loan, grant, or subsidy programs, including the heads of the Federal
Communications Commission, the Department of Agriculture, the Department of
Homeland Security, the Small Business Administration, and the Department of Commerce,
shall prioritize available funding and technical support to assist affected businesses,
institutions and organizations as is reasonably necessary for those affected entities to
transition from covered communications equipment and services, to procure replacement
equipment and services, and to ensure that communications service to users and customers
is sustained.
(3) Nothing in this subsection shall be construed to—
(A) prohibit the head of an executive agency from procuring with an entity
to provide a service that connects to the facilities of a third-party, such as backhaul,
roaming, or interconnection arrangements; or
(B) cover telecommunications equipment that cannot route or redirect user
data traffic or permit visibility into any user data or packets that such equipment
transmits or otherwise handles.
(c) EFFECTIVE DATES.—The prohibition under subsection (a)(1)(A) shall take
effect one year after the date of the enactment of this Act, and the prohibitions under
subsections (a)(1)(B) and (b)(1) shall take effect two years after the date of the enactment
of this Act.
(d) WAIVER AUTHORITY.—

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(1) EXECUTIVE AGENCIES.—The head of an executive agency may, on a one-time
basis, waive the requirements under subsection (a) with respect to an entity that requests
such a waiver. The waiver may be provided, for a period of not more than two years after
the effective dates described in subsection (c), if the entity seeking the waiver—
(A) provides a compelling justification for the additional time to implement
the requirements under such subsection, as determined by the head of the executive
agency; and
(B) submits to the head of the executive agency, who shall not later than 30
days thereafter submit to the appropriate congressional committees, a full and
complete laydown of the presences of covered telecommunications or video
surveillance equipment or services in the entity’s supply chain and a phase-out plan
to eliminate such covered telecommunications or video surveillance equipment or
services from the entity’s systems.
(2) DIRECTOR OF NATIONAL INTELLIGENCE.—The Director of National Intelligence
may provide a waiver on a date later than the effective dates described in subsection (c) if
the Director determines the waiver is in the national security interests of the United States.
(f) DEFINITIONS.—In this section:
(1)

APPROPRIATE

CONGRESSIONAL

COMMITTEES.—The

term

“appropriate

congressional committees” means—
(A) the Committee on Banking, Housing, and Urban Affairs, the Committee
on Foreign Relations, and the Committee on Homeland Security and Governmental
Affairs of the Senate; and

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(B) the Committee on Financial Services, the Committee on Foreign
Affairs, and the Committee on Oversight and Government Reform of the House of
Representatives.
(2) COVERED FOREIGN COUNTRY.—The term “covered foreign country” means the
People’s Republic of China.
(3) COVERED

TELECOMMUNICATIONS EQUIPMENT OR SERVICES.—The

term

“covered telecommunications equipment or services” means any of the following:
(A) Telecommunications equipment produced by Huawei Technologies
Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
(B) For the purpose of public safety, security of government facilities,
physical security surveillance of critical infrastructure, and other national security
purposes, video surveillance and telecommunications equipment produced by
Hytera Communications Corporation, Hangzhou Hikvision Digital Technology
Company, or Dahua Technology Company (or any subsidiary or affiliate of such
entities).
(C) Telecommunications or video surveillance services provided by such
entities or using such equipment.
(D) Telecommunications or video surveillance equipment or services
produced or provided by an entity that the Secretary of Defense, in consultation
with the Director of the National Intelligence or the Director of the Federal Bureau
of Investigation, reasonably believes to be an entity owned or controlled by, or
otherwise connected to, the government of a covered foreign country.

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(4) EXECUTIVE AGENCY.—The term “executive agency” has the meaning given the
term in section 133 of title 41, United States Code.

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