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A state appeals court has stayed a prior restraint order in a high-profile case between The New York Times and Project Veritas. For three months, the paper had faced an unconstitutional censorship order unprecedented in modern publishing history. The last time it had been subjected to such a broad gag order was the Pentagon Papers case over fifty years ago.
According to the new ruling, the Times is free to publish documents that had previously been restricted, and will not be forced to turn over or destroy any copies it is holding.
From Freedom of the Press Foundation directory of advocacy Parker Higgins:
It's a relief to finally see this outrageous prior restraint suspended, but frankly it never should have happened in the first place. It violates the fundamental press freedom guarantees in the First Amendment, and the potential precedent would allow plaintiffs to silence coverage and squelch all sorts of reporting. We look forward to the underlying order being thrown out entirely.
Project Veritas, the plaintiff in this case, is currently also the subject of a separate case closely watched by press freedom advocates. That case involves an FBI raid of the homes of several people involved with the conservative group.
So we've noted that a lot of the U.S. politician accusations that Huawei uses its network hardware to spy on Americans on behalf of the Chinese government are lacking in the evidence department. The company's been on the receiving end of a sustained U.S. government ban based on accusations that have never actually been proven publicly, levied by a country (the United States) with a long, long history of doing exactly what it accuses Huawei of doing.
To be clear, Huawei is a terrible company. It has been happy to provide IT and telecom support to the Chinese government as it wages genocide against ethnic minorities. It has also been caught helping some African governments spy on the press and political opponents. And it may very well have helped the Chinese government spy on Americans. So it's hard to feel too bad about the company.
At the same time, if you're going to levy accusations (like "Huawei clearly spies on Americans") you need to provide public evidence. And we haven't. Eighteen months of investigations found nothing. That didn't really matter much to the FCC (under Trump and Biden) or Congress, which ordered that U.S. ISPs and network operators rip out all Huawei gear and replace it to an estimated cost of $1.8 billion. Yet just a few years later, the actual cost to replace this gear has already ballooned to $5.8 billion and is likely to get higher:
"The FCC has told Congress that applications to The Secure and Trusted Communications Networks Reimbursement Program have generated requests totaling about $5.6 billion – far more than the allocated funding. The program was established to reimburse providers with 10 million or fewer customers who must remove Huawei Technologies Company and ZTE equipment."
That's quite a windfall for companies not named Huawei, don't you think?
My problem with these efforts has always been a nuanced one. I have no interest in defending a shitty global telecom gear maker with an atrocious human rights record which very well may be a proven to be a surveillance lackey for the Chinese government. Yet at the same time, domestic companies like Cisco have, for much of the last decade, leaned on unsubstantiated allegations of spying to shift market share in their favors. DC is flooded with lobbyists who can easily exploit both xenophobia and intelligence worries to their tactical advantage, then bury the need for evidence under ambiguous claims of national security:
"What happens is you get competitors who are able to gin up lawmakers who are already wound up about China,” said one Hill staffer who was not authorized to speak publicly about the matter. “What they do is pull the string and see where the top spins.”
But some experts say these concerns are exaggerated. These experts note that much of Cisco’s own technology is manufactured in China."
So my problem here isn't necessarily that Huawei doesn't deserve what's happening to it. My problem here is generally a lack of transparency in a process that's heavily dictated by lobbyists, who can hide any need for evidence behind national security claims. This creates an environment where decisions are made on a "noble and patriotic basis" that wind up being beyond common sense, reproach, and oversight. That's a nice breeding ground for fraud.
My other problem is the hypocrisy of a country that doesn't believe in limitations on spying, complaining endlessly about spying, without modifying any of its own, very similar behaviors. AT&T has been proven to be directly tethered to the NSA to the point where it's literally impossible to determine where one ends and the other begins. Yet were another country to ban AT&T from doing business there, the heads of the very same folks breathlessly concerned about surveillance ethics would explode. What makes us beyond reproach here? Our ethical track record?
And my third problem is that the almost myopic, focus on Huawei has been so massive, we've failed to take on numerous other privacy and security issues, whether that's the lack of a meaningful federal privacy law, the rampant security and privacy issues inherent in the Internet of things space (where Chinese-made hardware is rampant), or election security with anywhere close to the same level of urgency. These all are equally important issues, all exploited by Chinese intelligence, that see a small fraction of the hand-wringing and action reserved for issues like Huawei.
Again, none of this is to defend Huawei or deny it's a shitty company with dubious ethics. But the lack of transparency or skepticism creates an environment ripe for fraud and myopia by policymakers who act as if the entirety of their efforts is driven by the noblest and most patriotic of intentions. And, were I a betting man, I'd wager this whole rip and replace effort makes headlines for all the wrong reasons several years down the road.
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