U.S. Government vs. Huawei, ZTE: Innuendo, Supposition, and Guilt by Association

October 14, 2012

I’ve been reading through the media coverage of the U.S. House Intelligence committee report on Chinese telecom giants Huawei and ZTE, and it seems like a lot of folks who have criticized its negative conclusions for not containing any “hard evidence” or a “smoking gun” are missing the point.

Here’s a sample from an Op/Ed in Foreign Policy:

[I]t’s clear the Chinese government holds tight control over two of the countries’ most successful private companies, and Huawei and ZTE executives have numerous ties to the government, like all companies in China in sensitive industries. The United States is also undoubtedly the victim of a huge volume of cyberattacks originating from the Chinese mainland.

Although the report — at least the unclassified version — is full of sound and fury, it is almost devoid of anything conclusively connecting Huawei and ZTE with the charges levied against them. The 11-month investigation, which Huawei requested, starts from the presumption of guilt and works backwards from there: All its conclusions are based on the suspicion of wrongdoing. As 60 Minutes reported two-thirds of the way into its segment on Huawei this past Sunday, almost as an afterthought, “[T]here’s no hard evidence” that any of the espionage allegations are true.

It seems that the House intelligence committee’s response to potential cybersecurity threats has been to circumvent the Bill of Rights using “national security” as an excuse[.]

I’ve seen this basic argument many times now, both in foreign and Chinese media. Their facts are right, but their conclusions are all wrong.

Some people seem to think that the House investigation was a judicial process. It wasn’t. One commentator writes in terms of “innuendo, supposition and guilt by association.” Since when was this about guilt or innocence? This was not a trial, or an arbitration, or an administrative hearing subject to judicial review and appeal. No, this was an investigation by a group of legislators who drew up recommendations at the end of the process. That’s it.

I have no idea what the reference in that above quote to the Bill of Rights refers to, nor do I understand why some other commentators keep repeating different versions of the principle of presumed innocence, a standard in criminal law. Please stop that, it’s annoying and irrelevant.

The Foreign Policy article I quoted is worse than most I’ve read because it starts off stipulating that the Chinese government maintains tight control over Huawei and ZTE and that the PRC is responsible for many of the cyberattacks against the U.S. Hell, I wouldn’t even stipulate to all that. Indeed, I have no idea whether China has tight control over Huawei and/or ZTE. Everything I’ve heard about these companies, in fact, leads me to the opposite conclusion.

The critics of the House report don’t seem to care about the relationship between these companies and Beijing. To them, the only important thing is direct evidence of wrongdoing. In their minds, if Huawei and/or ZTE have done something wrong, then they should not be allowed to do business in the U.S. telecom sector. However, if that evidence is lacking, they should go about their business.

A careful reading of the House report, though, tells us that the committee was not just looking at evidence of wrongdoing. Indeed, in many ways that was a secondary concern and, I would argue, its findings of wrongdoing are weak and unconvincing. However, the committee’s investigation was actually forward looking, as the following quote from page iv of the report’s introduction shows:

The House Permanent Select Committee on Intelligence (herein referred to as “the Committee”) initiated this investigation in November 2011 to inquire into the counterintelligence and security threat posed by Chinese telecommunications companies doing business in the United States. Prior to initiating the formal investigation, the Committee performed a preliminary review of the issue, which confirmed significant gaps in available information about the Chinese telecommunications sector, the histories and operations of specific companies operating in the United States, and those companies’ potential ties to the Chinese state.

Most importantly, that preliminary review highlighted the potential security threat posed by Chinese telecommunications companies with potential ties to the Chinese government or military. In particular, to the extent these companies are influenced by the state, or provide Chinese intelligence services access to telecommunication networks, the opportunity exists for further economic and foreign espionage by a foreign nation-state already known to be a major perpetrator of cyber espionage. [my emphasis]

As the words in bold above suggest, the committee was looking at threats and the potential for future harm. Again, this was a risk assessment, not a trial to determine wrongdoing.

As I’ve said before, the ability of the committee to make a determination here depended on the receipt of certain information from Huawei and ZTE. The committee says there were gaps in their information, and that the investigation would help to fill them in. However, as not all questions were answered and not all documents were handed over, the investigation was never really completed. In other words, there was no way that those risks, the same ones that the Foreign Policy Op/Ed stipulated to, could be discounted.

Let me try out a dramatic analogy for you. You’ve been having a steamy, illicit affair with Ms. X. Late one night, the doorbell rings. You look through the window and see that the person outside is the husband of Ms. X. He is holding a gun, looks upset and maybe a little drunk. Do you let him in? Before you answer, let me tell you that Mr. X has never killed anyone before, and in fact is a perfectly law-abiding citizen.

Not a perfect analogy, but hopefully you get my point.

5 thoughts on “U.S. Government vs. Huawei, ZTE: Innuendo, Supposition, and Guilt by Association

  1. bystander

    “the committee was looking at threats and the potential for future harm. Again, this was a risk assessment, not a trial to determine wrongdoing.”

    yes! exactly.

    I would add only that the people who are most responsible for risk assessment and security in the United States don’t give a good g*dd*mn about trade relations, deficits and surpluses, marketplaces, etc. They are like policemen or security guards: their job is very specifically to identify risks and threats and to call them out and protect against them.

    It’s bewildering to see such a volume of commentary about this case, and almost no one taking up the question of the actual risks on the merits. Not ulterior motives; not impact on trade; not election year politics; but the actual merits of the case for a significant risk and threat.

  2. Fons Tuinstra

    I can appreciate your argument that procedures for finding any truth might differ in a court room from other settings, like the media or a panel of US courts. But you would hope that facts and evidence do have a role to play, even when it is pure politics. Or am I being naive? I know that the feature of factless reporting has become a feature, factless politics too, but should that be the norm.
    Anyway, perhaps you can join our China Weekly Hangout on Thursday: http://www.chinaherald.net/2012/10/china-weekly-hangout-what-can-huawei-do.html

  3. Jack Fensterstock

    Hidden in all of the coverage but rightfully pointed out by you is the fact that Huawei and to a lesser extent ZTE did not satisfy the information requests of the Committee. Considering that the companies had about a year to comply something is going on here. At this point in time the companies cannot move on to discuss the national security threat without first answering the questions.
    Also, the Chinese media, Chinese Government officials, and Huawei have spent the past week focusing on job creation in the US by these telecom firms, the billions of dollars of components they procure, and other trade and economic factors. Either they don’t get it or are trying to divert the fact that they MUST answer the basic questions of the Committee.

  4. Tseng Kin-Wah

    No company in this world is that transparent unless forced to under duress or by law. Also depends on the questions/demands & how they’re asked. Remember these two giants are sensitive hi-tech companies who can compromise China’s own National Security. Moreover, your analogy is also not appropriate. If the husband came unarmed, I might let him in being aware he has not killed before. But nobody just nobody would be insane enough to let in a drunk with a gun in his hand irrespective whether one is screwing his wife or not.