By Aahidh Mohideen/newsin.asia
Huawei’s announcement of its commitment to building Sri Lanka’s 5G network shows China’s increasing influence in the country.
China, the world’s second-largest economy, currently accounts for roughly 12% of Sri Lanka’s external debt, with around 40% of such loans lent at non-concessionary rates above international market rates.
Sri Lanka’s debt crisis reached a head in 2017, with the handing-over of the Hambantota Port to a Chinese state-owned entity on a.99 year lease.
This year, Huawei Technologies pledged to build Sri Lanka’s 5G network in combination with local telecommunications providers.
The announcement was a motivating boost for a company embroiled in a full-blown PR disaster. Citing security concerns, Australia, New Zealand and the US have blocked Huawei from participating in their respective 5G rollouts.
Despite this, Sri Lanka’s Minister of Digital Infrastructure and Information Technology, Ajith Perera, claimed in a statement that there were ‘no security concerns’ regarding the use of Huawei products, citing a tweet by President Donald Trump to argue that the international market is of the opinion that Huawei does not pose a security threat.
President Trump’s tweet, ironically, was against US national policy, which has remained bullish on Huawei’s links to the Chinese Communist Party.
The inconsistent Trump has acted strongly against China, placing tariffs on over $200 billion worth of Chinese exports following a ‘long time abuse of the broken international system’ and alleged breaches of intellectual property rights.
In the same statement, Minister Perera claimed that the security concerns regarding Huawei were founded on the CEO’s military service. However, this is not the sole reason for the global community’s scepticism about Huawei; rather, it is Chinese law that is a source of concern.
Various laws in China require companies to ‘provide assistance, and cooperate in national intelligence work’, raising doubts as to Huawei’s ability to operate outside of government influence.
Here is a report in www.ft.com dated March 5,2019 which gives the details of the controversy (See https://www.ft.com/content/282f8ca0-3be6-11e9-b72b-2c7f526ca5d0)
A number of Chinese laws state that Chinese individuals and organizations must, if asked, co-operate with intelligence work.
But Beijing has repeatedly insisted that Huawei is not obliged to help with intelligence gathering in its overseas business.
“Some US government officials . . . have been playing up the security risks of certain Chinese companies’ products,” said the vice-minister of foreign affairs, Zhang Yesui.
Zhang said that although organizations and citizens were obliged to assist national intelligence work, “China asks companies to strictly abide by local laws” while abroad.
To try to dispel concerns, Huawei commissioned a 37-page legal opinion from Zhong Lun, a Chinese law firm, which it submitted to the US Federal Communications Commission last May.
In a letter to the UK parliament in January, it said this advice had been reviewed by Clifford Chance, the London-based law firm. Clifford Chance said that it “is not authorized to advise on PRC law” but believed that Zhong Lun’s opinion “provides a sound analysis”.
However, other lawyers and tech analysts disputed the strength of Huawei’s legal opinion and its conclusion that Chinese law cannot compel the company to gather intelligence against the interests of customers. In particular they noted that the law has never been tested in this area.
Here are four claims from Huawei’s document and the response from outside experts:
Huawei has no duty to implant backdoors in its networks, because there is no law that empowers government authorities to demand this. In recent years the Chinese government has expanded its ability to collect data for national security purposes and has written new laws expanding the scope of intelligence-gathering operations.
China’s criminal procedural law already compels “workplaces and individuals” to comply with technical investigative methods, such as wiretaps. The country’s recently issued national intelligence law gives “state intelligence agents” the ability to demand co-operation from organizations while carrying out “intelligence work”, which is vaguely defined. These laws do not clarify what counts as “co-operation”.
Installing a backdoor — a route hidden to the user, by which authorities could access and control data — is not explicitly mentioned in law, as Huawei’s lawyers point out.
But this line of argument is “disingenuous”, said Lester Ross, a partner at WilmerHale in Beijing. “It doesn’t address the larger point, which is how Huawei is obliged to co-operate with Chinese intelligence work.” Zhong Lun responded that national intelligence law does not compel Huawei to conduct “malicious activities”, and that this would breach the principle of privacy as enshrined in China’s constitution.
Huawei would find it especially difficult to refuse a request to provide data stored in China to authorities, said other lawyers.
Wang Congwei, a partner at Beijing Jingshi law firm, said: “[Huawei] cannot refuse, the law stipulates that companies have an obligation to co-operate for national security and investigation needs. National security laws, the anti-terrorism law and other laws all require companies to assist the judiciary.”
There are “safeguards” built into Chinese law that defend businesses’ “legitimate interests”. Under Chinese law, intelligence agents cannot compel companies to act against their “lawful” or “legitimate” interests.
But both foreign and domestic tech companies are routinely asked to give up data against their business and customer interests.
In 2005, the Chinese journalist Shi Tao was sentenced to 10 years in jail after Yahoo provided information on his emails. There are no previous public examples of companies standing up to Beijing to refuse such requests — other than leaving the country entirely.
The National Intelligence Law mandates intelligence agents to do work “within and outside of” China, and to compel organizations to assist them in their work. State security officials have in the past travelled to the US to harass practitioners of the Falun Gong spiritual group.
“I think the territoriality issue is a red herring,” said Paul Haswell, a partner at Pinsent Masons in Hong Kong.
“Regardless of what any law says, if the state asks you to do something, you’ll face consequences if you don’t, be they legal or more sinister. The [Communist] party is supreme and has the final say on everything.”
The “scope” of anti-terrorism work is “direct and explicit” under Chinese law, as is counter-espionage work. Huawei’s lawyers argue that Beijing is bound by law to demand assistance only in order to meet “clear and specific [counter-espionage] goals”.
But China has interpreted “national security” broadly to include investigating anyone, from NGO workers to Chinese nationals working for foreign media.
China’s Financial Muscle
In view of China’s growing financial presence in Sri Lanka, the imminent 5G rollout should be regarded with concern to ensure that Sri Lanka’s digital security is not threatened at a time when domestic security is seriously lacking.