U.S. Infrastructure Security Challenged by Misuse of ITC Authority
Operators Speed 5G Network Upgrades with CommScope’s HELIAX (Photo: Business Wire)
U.S. Infrastructure Security Challenged by Misuse of ITC Authority
Operators Speed 5G Network Upgrades with CommScope’s HELIAX (Photo: Business Wire)
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The recent announcement of a bipartisan infrastructure deal, also known as the BIF, is exciting not just for repairing America’s roads and bridges but also for the rapid expansion of broadband access to the nation. The BIF funds broadband infrastructure at $65B. 

American policymakers have been trying to expand rural broadband access for the last 40 years. One of the key challenges has been laying copper and fiber optic lines in all parts of the nation. The key to avoiding a Charlie Brown football moment will be to leverage 5G mobile broadband technology, which is key to expanding broadband access without also needing to run expensive cables to every house. This technology replaces the cable that plugs into your router with a 5G cellular signal and often matches or exceeds the speeds you would normally receive over a traditional broadband connection.

Bringing faster internet to more Americans for lower costs than traditional methods may sound like a silver bullet, but challenges still remain—notably around infrastructure security. By heavily subsidizing global technology giant Huawei, China’s government has pretty much cornered the 5G market by offering bottom-line prices for critical network infrastructure. These massive subsidies threaten the viability of key market economy based industries. Perhaps most importantly, however, Huawei's technology poses numerous national security threats to the U.S. and our allies. With former Chinese intelligence officials on the Huawei board and Chinese national security laws ensuring the Huawei network and its data must be available to Chinese intelligence bodies, it is a perfect storm of security vulnerabilities. Look no further than Hong Kong, where Beijing officials exploited these technologies and networks to assist in the crackdown on pro-democracy advocates and perpetuate Xinjiang's aforementioned human rights atrocities.

After much deliberation across experts and network providers in the major market economies, it was largely understood that it would take open competition and diversified innovation to create a strong, sustainable alternative to the world's Huawei 5G battle plan. In addition to these industry recommendations, the U.S. Department of Homeland Security's Cybersecurity and Infrastructure Security Agency's 5G Strategy outlines suggested industry standards to be followed. The strategy seeks to promote a road map for a secure 5G U.S. rollout necessary to meet the goals envisioned by the BIF. Key top lines of the strategy include encouraging innovation in the 5G marketplace to foster trusted 5G vendors and collaborating with industry stakeholders to strengthen secure infrastructure for future deployments.

Unfortunately, a key 5G industry leader has decided to put potential profit and market control over national security and the existential threat that the Huawei 5G global offensive poses. Ericsson, a major 5G equipment maker, had been pressing Samsung over the renewal of an IP cross-licensing agreement related to 5G equipment patents and started litigation in US court at the end of 2020. But Ericsson did not stop there. Instead, on January 4, Ericsson piled on, filing a complaint at the U.S. International Trade Commission (ITC), which targeted Samsung. Ericsson's complaint alleges infringement of patents found in "electronic devices with wireless connectivity, specifically mobile phones, tablet computers, and smart televisions," even though Ericsson makes none of these products. Just a few days later, on January 7, Samsung fired back to try to even the litigation leverage, with a complaint of their own against Ericsson. 

Unfortunately, Ericsson didn't stop, despite firing the first shot. On January 15, it took aim at Samsung again and once again filed a complaint at the ITC. And yet again, Samsung fired back, on February 4, with an ITC complaint against Ericsson, alleging infringement related to semiconductor devices, wireless infrastructure equipment like base stations, modems, and cellular radio equipment. Subjects of this dispute include antennas, radios, base stations and core network products.

In the end, Ericsson got their way as both sides announced a settlement to their various litigation disputes, but the company’s actions and anti-competitive motives deserve scrutiny. The trend of choosing pressure tactic litigation over fair competition creates a number of problems with far-reaching impact, from slowing innovation and limiting economic growth to raising prices for consumers and limiting choice. However, when infringement claims are filed at the ITC, the impact can be orders of magnitude worse, with much more widespread damage. 

The ITC, by design, does not issue monetary remedies for infringement. Rather, the ITC offers exclusion orders, which outright ban from the U.S. market the import of any products containing the patents deemed infringing. These sweeping remedies with massive potential impact are exactly the reason litigious companies like Ericsson often take their complaints to the ITC. The threatened impact of an exclusion order gives them the upper hand as they enter licensing negotiations with a competitor, in this case, Samsung. 

With all the efforts of the current administration and those before it to expand broadband to rural consumers—while keeping those consumers safe from Chinese tech companies that would undermine U.S. security and future innovation—exclusion orders in any of these 5G related cases would raise serious public policy and national security concerns. It will take multiple industry partners, open competition, and diverse innovation to bring 5G mobile broadband to Americans still dealing with dial-up. While things have been moving in a positive direction on that front, it would create serious national security problems if a major provider can use a U.S. trade agency to weaken or even push out fellow trusted 5G partners from the U.S. market. 

Phil Stupak, Former Obama DHS Senior Advisor and Adjunct Lecturer at The University of Chicago, is a high-level policy expert in cybersecurity.

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