Ericson Scorsim. Lawyer and Consultant in Communication Law. PhD in Law from the University of São Paulo (USP). Author of the book collection on Communication Law, with a focus on Technologies, Media, and Telecommunications.

The European Union, under the leadership of France and Germany, is carrying out the project called GAIA-X for data infrastructure. The aim is to strengthen the European Union’s sovereignty over data to encourage the creation of a digital ecosystem.  According to the program’s official documents: “data sovereignty in the sense of complete control over stored and processed data and also the independent decision on who is permitted to have access to it”.[1] And also on data sovereignty: “sovereign data services which ensure the identity of source and receiver of data and which ensure the access and usage rights towards the data”.[2] In the text, one of the stated objectives is: “protection against non-European extra-territorial regulatory: protection again t abuse of national regulations that allow to access data stored in cloud infrastructures or services is an essential part of the European federated data infrastructure“.[3] The data infrastructure is a federative infrastructure that consists of components and services that make it possible to access, store, exchange, and use data according to pre-defined rules.

The digital ecosystem is the network of developers, providers and users of digital products and services. In short, the aim of the GAIA-X project is to provide incentives to European cloud computing companies, ensuring the competitiveness of European Union countries. It is categorically stated that the project is a geostrategic response by the European Union to the passing of the Cloud Act by the United States. It is also a reaction to the competitiveness of the U.S. companies IBM, Microsoft, Google, and Amazon, which are leaders in the infrastructure as service market.   There is only one global Chinese competitor in this segment: Alibaba.

The project is set in the context of the unique data market and the strengthening of the European digital economy. For the European Union, there is the public policy of defending the data of European industry. Starting in 2021, the project is expected to be completed with the installation of cloud computing infrastructures. One of the main points of the project is to ensure interoperability between systems to enable migration to European cloud computing companies. Another goal is to ensure control over data on European territory. This European Union geostrategy for strengthening data infrastructure capacity can serve as an inspiration for Brazil. In this respect, a national policy of incentives for data infrastructure capacity is needed, aligned with an industrial policy and digital trade policy, and including national defense policy. These public policies are essential for the country’s adaptation in the 5G technology and  Internet of Things scenario, allowing for the best economic use.  After all, the country that controls the 5G digital infrastructure controls its digital economy. In Brazil, the main telecommunication companies present here have European headquarters (Tim and Telefonica, except for Mexico’s América Móvel, and Oi and Algar Telecom).

These telecommunications companies have the fundamental role of deploying connectivity in Brazilian territory. Thus, they have the ultimate responsibility for defining how best to provide 5G technology. Also, the main suppliers of 5G technology are European: Ericcson (Sweden) and Nokia (Finland). In Asia, there’s South Korea with Samsung. Thus, Brazil has other interesting geostrategic options regarding 5G technology that go beyond those offered by the United States and China. The best thing for Brazil is to maintain neutrality in this conflict for global leadership between the United States and China. But the country can take advantage of the opportunities in redefining the global 5G technology supply chain, with incentives to attract foreign investments in this production chain here in Brazil, attracting investments in microchip factories and installation of data centers. It is essential for Brazil, like the European Union, to reflect on the risks of abuse in the application of U.S. legislation (Cloud Act), which allows access to data located in other countries. It is key for Brazil to affirm its sovereignty in cyberspace, strengthening its capacity for cyber defense against possible risks of abuses in the application of foreign legislation in an extraterritorial manner. 

In the coming decades, 5G, IoT, artificial intelligence, and big data will be the driving forces of the digital economy, which is why it is essential for the country to prepare itself for this global scenario.

[1] Project GAIA-X. A Federated Data Infrastructure as the Cradle of a Vibrant European Ecosystem. Federated Data Infrastructure. Federal Ministry for Economic Affairs and Energy and Federal Ministry of Education and Research.

[2]Work cited.

[3] Project GAIA-X. A Federated Data Infrastructure as the Cradle of a Vibrant European Ecosystem. Federated Data Infrastructure. Federal Ministry for Economic Affairs and Energy and Federal Ministry of Education and Research.

Ericson Scorsim. Lawyer and Consultant in Communication Law, with a focus on Technologies, Media, and Telecommunications. PhD in Law from the University of São Paulo (USP). Author of the Communications Law eBook Collection.

The Brazilian government is about to define its geostrategic position on Huawei’s 5G technology. It seems the decision will be postponed till 2021, as reported in the media. In other articles, I have explained the context of this controversy between the United States and China related to 5G technology .[1] In this article, the focus is on explaining the geopolitical risks for Brazil on the subject of its own national security and its national economy. Now, 5G technology is related to the risks of interference by both the United States and China intelligence services, which aim to collect data and communications. Therefore, Brazil and Brazilians can become targets of the intelligence services of those countries.

For Brazil, the federal, state, and municipal governments, and Brazilian companies, there are geopolitical risks in relation to the United States. Currently, the global North American technology companies are shaping Brazil’s digital ecosystem and communications networks. Google, Microsoft, Amazon, YouTube, WhatsApp, Twitter, Apple have defined new forms of relationships in the digital[2] environment. However, these U.S. technology companies are subject to U.S. law and U.S. agencies. There are even systems of cooperation between these companies and the United States Department of Defense. For example, Google is required to sign a cooperation agreement with the U.S. Department of Defense regarding the installation of a submarine cable connecting the United States and Hong Kong to allow inspection of the cables.

            The central issue in relation to 5G technology relates to the ability to collect intelligence signals, which is why the United States has imposed restrictions on the Chinese company Huawei, on the grounds of risk to its national security. According to the United States, Huawei must collaborate with China’s national intelligence services, as required by China’s National Intelligence Act. For the US government, there is a risk that Huawei will supply covert telecommunications equipment, with backdoors that will allow for espionage. So some experts argue that the Huawei equipment are actually Trojan Horses, just like the gift given by Athens to the Trojan people. It turns out that inside the statue of the horse were Athenian soldiers who attacked the Trojans. That is why trojan horse became known as a trap given to the enemy.

But one of the central objectives of U.S. foreign policy is to contain China’s advance in 5G technology.

The irony is that the United States also has legislation with the capacity to force technology companies to collaborate with its national intelligence services, as well as with the Department of Defense. In addition, there is the extraordinary ability of the National Security Agency to intercept communications anywhere on the globe, as well as to conduct electronic espionage against anyone anywhere in the world. As US economist Jeffrey Sachs explains: “Ironically, though predictably, U.S. complaints partly reflect America’s own surveillance activities at home and abroad. Huawei’s Chinese equipment could make it more difficult for the U.S. government to covertly monitor it. However, illegitimate surveillance by any government should end. Independent monitoring by the United Nations (UN) to restrict these activities should become part of the global telecommunications system. In short, we should choose diplomacy and institutional safeguards, not technological warfare”.[3]

            In summary, 5G technology is directly related to the ability of governments to collect intelligence signals. This method of intelligence refers to the extraction of data, by hardware, software, Internet networks, telecommunications networks, submarine cables, satellites, mobile phones, televisions, electronic devices. The United States is able to collect intelligence signals, as the history of National Security Intelligence (NSA) shows. Moreover, for the time being, the United States is the global leader in microchip technology, essential inputs for technology in the central and peripheral areas of the 5G network. Huawei owns both central and peripheral 5G technology. The other competitors are Ericcson and Nokia. Now, the company and/or intelligence agency that is able to collect intelligence signals can also extract data, infiltrate electronic surveillance devices, analyze data, decrypt data, and store data, as well as retain and delete data. It can also modify the data flows carried over the Internet, as well as change the traffic route of the data packets. This is what the US government suspects in relation to China Telecom and China Mobile, accused of diverting the route of US communications into China. Faced with this, there is the proposal to revoke the licenses of these Chinese companies.

For the United States, China is considered an adversary country because it threatens its global leadership. Thus, Huawei is deemed a company with ties to the government of an opposing country. For Brazil, China is not an opponent, on the contrary there are good trade relations between the two countries. So, at first, there is no reason to be suspicious of Huawei. On the contrary, for decades Huawei has been the main supplier of 4G technology for telecommunications companies in Brazil.

            But there is another factor in this story not yet properly clarified. It is the context of the United States and of applying its legislation in an extraterritorial manner, with the exercise of its jurisdiction almost universally, especially when it comes to its national intelligence services.

The current policy of the Brazilian government of automatic alignment with the current government of the United States ignores this fact, something that is detrimental to Brazilian interests. However, the Brazilian government cannot ignore this reality with potential for collateral damage to Brazil’s national economy and our national security. Brazil’s proximity with the current US government may produce positive effects for our national economy, but one cannot ignore the geopolitical risks for Brazil, its sovereignty, and its jurisdiction.

Thus, for Brazil, its government, and Brazilian companies, citizens, and institutions, there is the geopolitical risk of extraterritorial application of U.S. legislation: Leadership 5G Act (the U.S. law that sets technical standards for 5G), Build Act (Better Utilization of Investments Leading to Development Act of 2018[4]), Foreign Intelligence Surveillance Act (FISA, allows U.S. intelligence services to conduct electronic surveillance of foreign governments and authorities and businesses), National Intelligence Law (application by the National Security Agency of measures to intercept foreign nationals’ electronic communications, as well as requiring U.S. companies to provide data and metadata on users of applications, social networks, fiber optic submarine, and satellite cable network infrastructures, among others), Communications Assistance for Law Enforcement Act (CALEA – technical requirements for telecommunications manufacturers to facilitate interception of communications), Cloud Act (Clarifying Lawful Overseas Use of Data Act – authorization for U.S. authorities to access the content of private communications stored by companies[5]), Cyber Intelligence Sharing and Protection Act, Agriculture Improvement Act of 2018 (incentives for Internet installation in rural areas, data collection system for crops, geospatial technology standards, etc.).[6]), National Defense Authorization Act (rules for control of arms sales as well as military training for Brazil, with provision for reporting of human rights abuses by Brazilian security forces), US Patriot Act (measures to combat terrorism), Geospatial Data Act (law dealing with the collection, processing, storage of geospatial data)[7],International Cooperation Treaty on Intelligence Sharing (Five Eyes), and Foreign Corrupt Practices Act (U.S. anti-corruption law with potential application on Brazilian[8]companies), Foreign Investment Risk Review Modernization Act of 2018, Export Control Reform Act of 2018[9], among others.

There is a list of numerous authorities of U.S. federal agencies that can act and impact Brazil’s national interests: United States Presidency, Department of Defense[10], Department of Justice[11], Department of Energy[12], National Security Agency (NSA[13]), Central Intelligence Agency (CIA[14]), FBI[15], Defense Advanced Research Projects Agency (DARPA[16]), National Geospatial-Intelligence Agency (NGA[17]), National Reconnaissance Office (NRO[18]), National Oceanic and Atmospheric Administration (NOAA[19]), Committee on Foreign Investment in the United States (CIFUS[20]), Federal Telecommunication Commission[21], Security Exchange Commission, Foreign Intelligence Court[22], Securities on Exchange Commission[23], Bureau of Economic and Business Affairs, Cyber Infrastructure (CISA), Southern Armed Forces Command (U.S South Command[24]), among others.

I also believe it is in the interest of telecommunications companies operating in Brazil to assess the geopolitical risks of the Brazilian government’s position on 5G technology.  Any wrong move by the Brazilian government may compromise the level of investments in 5G technology in the country. Likewise, companies supplying 5G technology to telecommunications companies must assess these geopolitical risks, related to Brazil’s position. Any company with global operations has a responsibility to its investors, which is why it is necessary to analyze the political risks related to the Brazilian government, the United States, and China regarding 5G technology.

In short, given its domain of technological evolution, the United States can access data outside of its territory, including for the purposes of extending its jurisdiction almost universally (via intelligence and/or other services). Thus, it is up to Brazil, grounded on its sovereignty, to adopt national self-defense measures, preventing itself from being entirely subordinated to the foreign policy of the United States to the detriment of Brazilian national interests.

Brazil has other interesting geostrategic options regarding 5G technology that go beyond the United States and China. Brazil could establish partnerships with the European Union to encourage the production of 5G technology within the Brazilian territory, after all, the main suppliers of this technology are European. Also, Brazil could partner with Asian countries for the development of technology here, having as potential partners: Japan and South Korea, among others. Finally, Brazil could become a great international leader in 5G technology if it enters partnerships with the appropriate partners and knows how to preserve national interests, with a clear position of national defense against espionage from either the United States or China. Brazil cannot be held hostage to the geostrategic interests of the United States and/or China or any other country. The defense of national sovereignty is essential, ensuring the protection of personal and non-personal data (industrial data, financial data, commercial data, data of national wealth, geospatial data, etc.), as well as the protection of critical national digital infrastructures essential to the connectivity of the country.

[1]Scorsim, Ericson. A tecnologia de 5G da Huawei nas redes de comunicações: o alvo geoestratégico da lawfare imposta pelos Estados Unidos contra a empresa e China, published on the website: www.direitodacomunicacao.com, June 8, 2020.

[2] As an example, Petrobras refused to supply fuel to two cargo ships with Iranian flags on the grounds of economic sanctions imposed by the United States against Iran through the Office of Foreign Assets Control (OFAC) and the Countering America’s Adversaries through Sanctions Act. One of the ships was carrying urea, the other maize. The companies in charge of the ships went to court in Brazil. In the end, the Brazilian Supreme Court ruled that the Iranian ships did not have their names on the U.S. Treasury Department’s “blacklist,” which lists the targets of their economic embargoes. It should be noted that the United States uses lawfare mechanisms against Iran, i.e., it uses its legislation to achieve strategic objectives similar to the results of a war.  In another case, Petrobras, accused of having violated the Foreign Corrupt Practices Act, made a deal with the U.S. Department of Justice. Under such agreement, the company was forbidden from invoking the national sovereignty clause to breach the agreement.

[3] Sachs, Jeffrey. A guerra contra a tecnologia chinesa. Valor Econômico, November 14, 2019.

[4] Law authorizing the U.S. government to finance activities of U.S. interest abroad. The U.S. Ambassador to Brazil stated the possibility of using the Build Act to finance 5G technology in Brazil, subject to the imposition of a ban on Huawei participation.

[5] For example, access by US authorities to email content, social networks, and/or applications stored on servers abroad.

[6] Risk of potential collection of Brazilian agriculture data by US federal agencies.

[7] Potential for the collection of geospatial data from the Brazilian territory by US federal agencies.

[8] The Foreign Corrupt Practices Act provides for punishment of any company that uses U.S. infrastructure (banking or communications system) to pay a bribe to public officials. And, as a historical reference, over the last decades, Brazilian companies experienced a period of ascension, performing infrastructure works all over Latin America. However, they were shot down by the Lava Jato investigations. Harvard professor Matthew Stephenson denies the possibility of geopolitical use of the FCPA by the United States. But suspicion remains about the instrumentalization of the FCPA for US geopolitical purposes.
See: Kall, Kevin, Herdy, Thiago e Amado Guilherme, Ex-diplomata revela a visão dos Estados Unidos sobre a Lava Jato e projeto de poder do PT. Época Magazine, July 8, 2019.
In addition, U.S. Democratic congressmen questioned in a letter to the Department of Justice the collaboration of U.S. authorities with Brazilian authorities in the Lava Jato investigations.

[9] The current government of President Jair Messias Bolsonaro has encouraged the installation of weapons factories in Brazil, which is why it has made legislation more flexible. Now, when it comes to US companies that will be set up here, there is the potential application of US export control and arms transfer legislation. On that matter, the National Defense Authorization Act provides for the assessment of the impact of U.S. military equipment and training for Brazil’s security forces and the risks of human rights abuses.  And also, by way of illustration, the Wassenaar Arrangement Agreeement deals with the control of the exports of so-called dual-use technologies, arms and products. The objective of the agreement is to contribute to the regional and international security and stability of the countries. The United States is part of this treaty, but Brazil is not.

[10] United States National Security Authority.

[11] Can investigate Brazilian companies accused of committing crimes under US law.

[12] Can map the energy capacity of Brazil.

[13] National Security Agency that can perform electronic surveillance and interception of electronic communications anywhere on the globe.

[14] Intelligence Agency that can promote covert actions in social networks, applications, etc.

[15] Federal crime investigation agency.

[16] Agency developing intelligence and defense products.

[17] With satellite capacity to collect images from land, sea, and airspace.

[18] Can recognize ships, aircraft, objects, surfaces, vehicles, facilities, etc..

[19] With satellite capacity to promote “scans” by images of the Brazilian territorial sea, which happened in that episode of oil spill on Brazilian beaches.

[20] Federal agency to assess foreign investments in the United States.

[21] Federal telecommunications agency.

[22] Federal Court responsible for examining requests for electronic surveillance of foreign nationals.

[23] Federal agency responsible for the supervision of securities transactions (shares traded in stock markets and other assets).

[24] A Brazilian General was appointed to the United States Armed Forces Southern Command. A recent video from the U.S. South Command attested to the subordination of the Brazilian General to the command of the United States General. The episode narrates the collaboration of Brazilian authorities in the fight against drug trafficking, together with the United States.

Ericson Scorsim. Lawyer and Consultant in Communication Law, in the areas of Technologies, Internet, Media and Telecommunications. PhD in Law from the University of São Paulo (USP). Author of the Communications Law eBook Collection.

In an interview given to the Brazilian newspaper Folha de São Paulo on June 11, 2020, Ambassador Todd Chapman of the United States declared that the financing of 5G technology for Brazil is of interest to U.S. national security. According to the representative of the U.S. government, it is in the interest of the United States to finance 5G technology, through the International Development Finance Corporation, for companies allied to North American interests, such as Ericsson (a private company originating in Sweden with global operations) and Nokia (a private company originating in Finland with global operations).  In fact, the legislation called the Build Act (Better Utilization of Investments Leading to Development Act of 2018) authorizes the IDFC (International Development Finance Corporation) to finance projects abroad with U.S. public funds. This legislation is a direct response to China’s action on emerging countries.

The goal of U.S. foreign policy is to stimulate investments in 5G for companies competing with Huawei. According to the U.S. Ambassador, Huawei’s 5G technology represents a risk of access to data and information, as there is a link between the company and the Chinese government. Thus, the company is obliged to share information with China’s intelligence services. Still, according to him, the U.S. State Department has adopted a 5G Clean Path program, which prohibits U.S. embassies from adopting the services of telecommunications operators that use equipment from high-risk 5G suppliers.[1] According to the Ambassador, it is unlikely that anyone will make investments in countries where their information is not protected.

Given this interview by the U.S. Ambassador, the question remains: why is there so much interest in 5G technology in Brazil? According to the Ambassador’s statement, there is U.S. national security interest in the issue. But the question remains: why this interest by the United States? Is the United States concerned about American companies operating in Brazilian territory and that may end up using Huawei’s 5G technology? Or, is the United States concerned about Brazilian companies using Huawei 5G technology? In an article published in the Communication Law Portal, I explained this issue of 5G technology and the dispute between the United States and China. In theory, there is a risk that Huawei will be forced by the National Intelligence Law of China to share data/information with the national intelligence service of that country. 

However, it must be noted that this type of risk may also exist in relation to U.S. telecommunications companies, which are obliged to collaborate with the U.S. national security intelligence, as determined by CALEA – the Communications Assistance for Law Enforcement Act. Moreover, global technology companies (Facebook, Twitter, YouTube, Microsoft, Amazon, among others), providers of Internet applications, may also, in principle, be required to collaborate with intelligence and national security services in cases of risks to national security and public safety. In sum, the current U.S. government accuses Huawei and China of conducting electronic espionage and unauthorized access to data/information, which is the reason for the ban on Huawei’s 5G technology in U.S. territory. But who can guarantee that American government agencies do not conduct these types of electronic espionage either? After all, in 2013, it is public and notorious that Brazil was the target of espionage carried out by the National Security Agency of the United States, a fact proven by the Parliamentary Commission of Inquiry of the Brazilian Congress. The European Union and the United Kingdom have put forward solutions for mitigating cyber security risks from qualified high-risk supplier technology by imposing partial restrictions on Huawei.[2] Finally, it is up to Brazil, as a sovereign nation, to carry out the protection of the communications of Brazilian citizens, companies and institutions, in the face of any risks of electronic espionage, whether from the United States or China. If the Brazilian government and Congress do not respond to the challenge of protecting the infrastructure of communications networks regarding 5G technology, they may be held accountable for this omission to their institutional responsibility.

International strategic alliances are dangerous because they represent the risk of unconditional and uncritical adherence to the priority agenda of the country that is strongest in the relationship.  Hence the care required in the formulation of Brazil’s foreign policy in relation to the 5G theme. And Brazil’s automatic alignment to a foreign power has the potential to cause serious damage to its international relations. 

Automatic alignment can be the fruit of a colonized leadership; a colonized mentality submissive to the colonizer. Brazil’s national security policy regarding 5G communication network technology cannot be submitted to either the United States or China. A policy of submission is an attack on national sovereignty. Maybe it’s time to proclaim: Brazil First!

[1] According to the U.S. State Department: “The 5G Clean Path is an end-to-end communication path that does not use any 5G transmission, control, computing, or storage equipment from an untrusted vendor. A 5G Clean Path embodies the highest standards of security against untrusted, high-risk vendor’s ability to disrupt or deny services to private citizens, financial institutions, or critical infrastructure”.

[2]See: Scorsim, Ericson. A tecnologia competitiva de 5G da Huawei nas redes de telecomunicações de 5G: o alvo da geoestratégia da lawfare imposta pelos Estados Unidos contra Huawei e a China. Estudo completo do caso de repercussão sobre o Brasil. www.direitodacomunicacao.com

On May 15, the President of the United States issued the Executive Order on Securing the Information and Communications Technology. The decision was grounded on the International Emergency Economic Powers Act, National Emergencies Act, and the United States Code. According to the justification of the Executive Order, foreign adversaries are increasingly creating and exploiting vulnerabilities in information and communications technology and services, which store and communicate vast amounts of sensitive information, facilitate the digital economy, and support critical infrastructure and vital emergency services. Foreign adversary means any foreign government or foreign non-government person engaged in a long‑term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons. There are risks of malicious actions, including industrial espionage against the United States and its people There are threats caused by foreign adversaries to the national security, foreign policy, and economy of the United States. Hence, the Executive Order forbids any acquisition, importation, transfer, installation, dealing in, or use of any information and communications technology or service (transaction) by any person, or with respect to any property, subject to the jurisdiction of the United States, where the transaction involves any property in which any foreign country or a national thereof has any interest, from the date that this order is issued.

The presidential act has the purpose to ensure the control by the North American government of commercial transactions that involve information and communications technology or services designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary; transactions that pose an undue risk of sabotage to or subversion of the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of information and communications technology or services in the United States; transactions that pose an undue risk of catastrophic effects on the security or resiliency of United States critical infrastructure or the digital economy of the United States; or otherwise poses an unacceptable risk to the national security of the United States or the security and safety of its citizens.

The presidential act grants powers to the Secretary of Commerce, in consultation with other authorities (the Secretary of the Treasury, Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the United States Trade Representative, the Director of National Intelligence, the Administrator of General Services, the Chairman of the Federal Communications Commission) to design or negotiate measures to mitigate concerns related to the risks described in the Executive Order. Such measures may serve as a precondition to the approval of a transaction or of a class of transactions that would otherwise be prohibited pursuant to the Executive Order. The Secretary of Commerce, in consultation with other authorities, is authorized to take such actions to cease the transactions prohibited by the Executive Order, adopting the appropriate rules and regulations.  The Secretary, in consultation with the other federal authorities, is authorized to submit a final report to the Congress on control of such activities. The Director of National Intelligence shall continue to assess threats to the United States and its people from information and communications technology or services designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary.   The Secretary of Homeland Security shall continue to assess and identify entities, hardware, software, and services that present vulnerabilities to the United States and that pose the greatest potential consequences to the national security of the United States.

The Executive Order does not mention any specific countries or companies. However, it is known that the Trump administration is targeting the Chinese company Huawei. This measure is being adopted in the context of the trade war between the United States and China. The dispute is for the market that supplies equipment for telecommunications networks and the 5G market. The United States government wants to bar the Chinese company Huawei and its partners from purchasing American components and technologies without prior government approval. So the US authorities will prepare a list of companies and products deemed harmful to the interests of the United States, as they are promoted by foreign adversaries. According to information published by Reuters, Huawei is not able to manufacture servers for telecommunications networks, relying on third-party products such as the ones from American suppliers. However, Huawei is independent when it comes to the mobile phone market, as it owns all the components of these products (chips and software). The Chinese company is seeking to develop high-end technology to reduce its dependency on imported components. 

Publicado no portal Jurídico Migalhas Internacional em 21/05/2019 

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The United Kingdom discusses new rules to regulate online content to protect user safety

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The British government, through its Department for Digital, Culture, Media & Sport (DCMS) has presented measures to deal with online harms against users of digital platform services – the Online Harms White Paper. The measures were presented to the British Parliament. According to the document, the British Digital Economy needs a new regulation to improve the online security of citizens, given the online abuses that exist. The instrument mentions that self-regulation by global technology companies is not enough to prevent harms to users related to abuses and illegal online content. Thus, it recommends regulatory measure to establish the duty of care of digital platforms towards the protection of their users, for the purpose of inhibiting illegal and harmful content.

The regulation covers social media networks, websites, public discussion forums, messaging services, and search engines. It proposes that an independent regulatory authority should monitor the responsibility of the technology companies that mediate online content. Amongst the issues in debate are problems with abuse against children (cyberbullying), online disinformation campaigns, terrorist content shared on social media, pornography, hate crimes, inciting violence and crimes (there are online gangs that promote violence), encouragement to self-mutilation and suicide (protection of the mental health and wellbeing of youngster), drug trafficking, anonymous online intimidation, interference in legal procedures by disseminating online content, amongst other issues. Among the justifications for such regulation is online abuse of public figures; the example given are abuses committed against female journalists. Another matter under debate is online advertising and the regulatory asymmetry in dissemination of content in different services (for example: the regulation of broadcasting and the deregulation on content published on digital platforms: Youtube, Netflix, Prime Video, amongst others).

The document also speaks of the duty of care regarding interference in legal proceedings by disseminating online content throughout communities. According to the report, the technology companies must help users to report interference in legal proceedings, in the case of anonymous offenses. And as for online content that interferes with legal proceedings, the information on the occurrences must be updated in relation to the updating of the such information. Companies providing content distribution services must ensure immediate removal of illegal online content, as soon as determined by the proper authority.

Technology is part of the solution to promote education and digital awareness. The United Kingdom is seeking to build a new regulatory framework for online content, by holding technology companies accountable for the content they distribute and promoting the duty of care with regard to protecting the users of digital services. Amongst the sanctions stated in the regulation are fines, service blocking (geo-blocking of websites and applications), and the individual liability of the managers of the online content intermediary companies.

Artigo publicado no Portal Jurídico Migalhas Internacional em 15/04/2019

On March 12, 2019, the European Council and European Commission presented the joint strategic outlook of the European Union on China. This text is based on the main aspects of that official document, focusing on the matter of cybersecurity in the 5G networks. China is recognized as the EU’s second-biggest trading partner, behind only the United States. Hence, the challenges and opportunities presented by the relationship with China must be identified. China is a global player with leading technological power; however, this leads to greater responsibilities for upholding the international order, as well as greater reciprocity, non-discrimination, and openness of its system. It is a cooperative partner, but in some cases also a strong competitor. Thus, the need to find a balance between the political and commercial relationships. In a near future, China will no longer be seen as a developing country.

With regard to competitiveness and leveling the playing field, the document mentions measures to be adopted by the EU regarding the distortive effects of foreign state ownership and state financing of foreign companies on the EU internal market. It also mentions the need to build a strategy related to artificial intelligence to foster investments, with a human-centric and trustworthy approach, a key condition for acceptance of the use of technologies.

Another theme is strengthening the security of critical infrastructure and the technological base. There are concerns regarding the risks to the EU’s security represented by foreign investment in strategic sectors of the European economy through acquisitions of critical assets, technologies and infrastructure, as well as the supply of critical equipment. We highlight the matter of 5G digital infrastructure, used to provide mobile and wireless communication services. 5G has the potential to connect billions of objects and systems, including sensitive information and communication technology systems. Hence, the European Union has several legal instruments, such as the Network and Information Security Directive, the Cybersecurity Act, and the European Electronic Communications Code, for protection against cyberattacks. The EU will support multilateral efforts to promote free and secure data flows based on strong privacy protections for personal data.

On the other hand, the new Regulation for foreign investments will enter into force in April 2019 and fully apply from November 2020 Therefore, the Member States must apply the rules of such Regulation on foreign investment to control the security risks posed by foreign investment in critical assets, technologies and infrastructure. To avoid the distortions resulting from foreign state ownership and state financing of companies, the European Commission must identify such distortions by the end of 2019. Given the potential risks to the security of the digital infrastructure, there must be a strategy for the security of the 5G networks. Thus, the European Commission will issue a recommendation to be followed by the European Council. As for the security threats caused by foreign investments in critical assets, technologies and infrastructure, the Member States must ensure the effective implementation of the Regulation of direct foreign investments.

Artigo publicado no Portal Jurídico Migalhas em 05/04/2019

The company Huawei has filed a lawsuit against the United States government due to the legislative ban contained in the National Defense Authorization Act (NDAA), which forbids the company from supplying telecommunication equipment to federal agencies. The law also bars federal loans for the purchase of such products.

The case was filed before a federal district court in Texas, against the United States Government, the U.S. General Services Administration Administrator, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Education, the Secretary of Agriculture, the Secretary of Veterans Affairs, and the Acting Secretary of the Interior.

According to the complaint filed, the 2019 NDAA, more specifically its Section 889, is unconstitutional as it directly forbids federal authorities from signing procurement agreements with Huawei to purchase telecommunication equipment or federal or granting federal loans for such purpose.

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.

Injuries to the U.S Constitution

The first injury to the U.S Constitution is the violation of the Bill of Attainder Clause, which prohibited that legislature impose punishment, without hearing the other party or trial.

The second unconstitutionality relates to the violation of the Due Process Clause, that prohibited legislation that would single out particular persons or deprivations of liberty. In this case, the legislative act affects business freedom.

The third unconstitutionality is the violation of the principle of the separation of powers, as Congress must not act as prosecutor, judge, and enforcer of the sanction of prohibition against the company, without any evidence of it having business connections with the Chinese government, as well as of threats to cybersecurity.

The company also claims that Section 889 of the National Defense Authorization Act bars Huawei from doing business with the federal government even as to agencies that have no significant connection to defense, information security, or national security.

It further argues that the U.S. law causes significant damages to Huawei’s business by creating unfair conditions amongst competitors.

Thus, the U.S federal government may purchase telecommunication equipment from Nokia, Ericsson, and other competitors, but cannot purchase products from Huawei.

Finally, Huawei requests that Section 889 of the 2019 National Defense Authorization Act be declared unconstitutional, as it violates the Bill of Attainder Clause, the Due Process Clause of the Constitution’s Fifth Amendment, and the Constitution’s Vesting Clause and resulting separation of powers.

Artigo publicado no portal jurídico Migalhas Internacional em 15/03/2019