The United States and Electronic Surveillance of Foreign Communications: The Issue of 5G in Brazil and National Defense of Communications


Ericson Scorsim. Lawyer and Consultant in Communication Law. Ph.D. in Law from the University of São Paulo – USP. Author of the Communications Law Collection.

The United States and China dispute global leadership over 5G technology. China has Huawei as one of its main players. The United States is lagging behind in this technology race, as there is no US company leading in 5G technology. The United States, claiming reasons of a threat to its national security, has banned Huawei from providing 5G technology to its telecommunications networks.  The US government accuses the Chinese company of promoting espionage on behalf of the Chinese government. There are also charges of intellectual property and data theft. The company denies all severe charges. Despite President Biden’s recent election, the tendency is for the US to maintain this policy of excluding Chinese technology from telecommunications networks. Also, the United States is pressing allied countries to align their geostrategic position to ban China’s 5G technology.

 In this sense, the US government has threatened to no longer share intelligence information if allied countries do not exclude such 5G technology from their telecommunications networks. Thus, the US government has adopted the Clean Path, i.e., 5G networks, to exclude equipment and technology supplied by Chinese companies in cloud computing infrastructures, telecommunications network infrastructures, internet networks, application stores, and submarine cable networks. For the moment, there are signs that the Brazilian government may integrate this Clean Path program to exclude the supply of Huawei 5G technology in its national telecommunications networks. The US government’s narrative has been the subject of strong criticism. As the United States is not competitive in 5G technology, has it decided to adopt a protectionist tactic with the denial of global free trade because it is losing the competition to China? Another issue is that the US government accuses China of spying. But doesn’t the United States carry out espionage against foreign governments, companies, and people? It should be noted that in 2013, the Brazilian National Congress opened a Parliamentary Commission of Inquiry to investigate espionage activities conducted by the National Security Agency of the United States against Brazilian targets: citizens, companies, and authorities. It is important to note the institutional context of the United States.  The Communications Assistance for Law Enforcement Act (CALEA) obliges telecommunications companies to adopt equipment standards that allow the interception of telecommunications communications.  In principle, the law applies only to US companies and those located in US territory. Another US law is the Foreign Intelligence Surveillance Act (FISA), which allows US authorities to intercept communications abroad, including allowing the collection of intelligence signals (data relevant to US national security). Therefore, under this law, mass electronic surveillance of foreign governments, companies, and persons. In this context, global technology companies such as Google, Apple, Facebook, Amazon, among others, may be asked to collaborate with the US government on national intelligence issues. Another law is the Cloud Act, which allows US authorities to access data stored on servers located abroad in the event of investigations.

Additionally, the Export Control Reform Act deals with control measures in the export of technologies considered dual use, i.e., with both civil and military use. Thus, microchips, satellite technologies, fiber optics, submarine cables, GPS are considered dual-use technologies. In fact, the Internet itself is considered a dual-use infrastructure. Therefore, the US government seeks to restrict Huawei’s access to US companies’ microchip technology.  Also, the United States leads an international intelligence alliance called Five Eyes, along with the United Kingdom, Canada, Australia, and New Zealand. This alliance serves to collect intelligence signals across the globe. On the other hand, the National Security Agency is the government agency responsible for conducting electronic surveillance activities and collecting intelligence signals for the United States across the globe. Remember that the NSA has already conducted espionage against Brazil, supposedly an ally of the United States, in 2013.  Given this context, it is up to Brazil, as a sovereign nation, to adopt the most appropriate measures to protect the confidentiality of the communications of Brazilian governments, companies, and citizens. 

The Brazilian Congress is the competent authority to debate this issue. The President of the Republic does not have the power to deliberate exclusively on this matter. The mission of regulating 5G is shared between the government and the National Congress, precisely because it involves national defense issues.  Note that the European Union has adopted an intermediate solution to partially exclude Chinese technology from central areas of telecommunications networks, allowing its presence only in peripheral areas. It is unacceptable that Brazil cannot defend itself against the United States or against China or any other country.

Faced with the 5G issue, any omission by the Brazilian government and the National Congress to adopt measures to protect the integrity and confidentiality of communications will represent a serious attack on national sovereignty. After all, Brazil is not the backyard of the United States; it must protect its national interest above the interest of any allied country. In the geopolitical game between the United States and China, Brazil must protect the integrity, confidentiality, and privacy of Brazilian communications.  

Ericson M. Scorsim

Lawyer and Consultant in Communication Law. PhD in Law from USP. Author of the Ebooks Collection on Communication Law with a focus on topics on technologies, internet, telecommunications and media.