First 2020 Presidential Debate: WTF Was That?

I am still trying to wrap my American brain around whatever happened last night in the context of the nationally-humiliating circus sadly billed as the first Presidential debate of 2020.

CNN’s Jake Tapper, appearing shaken, aghast even, summed it up immediately after the shameful spectacle ended: "That was a hot mess, inside a dumpster fire, inside a train wreck."

I am embarrassed, even ashamed, for my country, for our people. I am incensed. I am worried, indeed, frightened, for my family and loved ones, for our increasingly-fragile Republic.

I’ll admit to having been unnerved in the early moments of what became a verbal schoolyard mud-fight when Biden declared “I am the Democratic Party.” But that was a gaffe, not a hijacking.

And, as much as I believe a President deserves respect and ought not be called a “fool” or a “clown” or be told to “shut up,” honestly, how many of us watching weren’t thinking the same things?

All in all, I admired Biden’s dignity. It's astounding that he managed to retain his train of thought as Trump blustered, lied, attacked. Indeed, Biden demolished Trump’s spin that he is mentally failing.

Trump was vile. He spewed venom, lied, preened, interrupted, broke debate rules, whined, bullied, vomited insults, endorsed hate, legitimized terrorist supporters, incited violence.

He was disgraceful. He demeaned the Office.  He outlined no policies, no platform, no plans, no empathy for the plight of everyday Americans; sick, scared, unemployed, desperate.

Trump seems to have reconciled himself to not gaining a majority of voters. There was zero effort to reach beyond his base, rather, like a tinpot despot, he focused on further radicalizing them.

Indeed, he seems to have no intention of “winning” the vote. He knows he can’t. Rather, he aims to disrupt the election, contest the results, and let the newly-stacked Supreme Court bless his coup.

He displayed his full and gross narcissistic, heartless, deranged persona in rich plumage last night. Our 243-year-old Republic is at stake. Global stability is at stake. Please vote Biden.

Amy Coney Barrett: Put Her to the Test

Watching the Grifter-in-Chief and his Senate minions jamming a new Supreme Court Justice down America’s collective throat has had me thinking that Senate Democrats should just boycott the whole confirmation hearing charade.

Until today.

With the first 2020 Presidential debate mere hours away, and the future of our nation very much at stake, I’m now thinking that there is perhaps a better approach for Democrats to take in terms of the equally-pivotal Supreme Court confirmation process.

Let’s start by ruling out hearing tactics that might try to sully her character or damage her integrity.  And don’t question her Catholic faith or her “People of Praise” membership.  Indeed, Dems should acknowledge that, by all or most accounts, she’s a fine human being and a legal scholar.

So, how about plumbing her jurisprudential knowledge; seek her guidance on interpretation of various elements of the Constitution; tap her wisdom related to actual legal definitions, or her opinions on already-public matters and cases? The American people will be watching and learning.

For instance, perhaps ask her to explain the emoluments clause in the Constitution. 

Once she has, keeping things matter-of-fact, ask for her legal opinion regarding a real-life situation, such as: If a president refused to divest herself of her properties and, in fact, steered hundreds of millions of taxpayer dollars to her properties, would this violate the emoluments clause?

Drill a little deeper perhaps: Putting aside the obvious compromise of national security, ask: If a President declined to detach herself from a global business empire – leaving her deeply commercially-engaged with foreign governments, including with clear financial gain – would that violate the clause?

The emoluments violations list is endless, but it’s always good to mix things up, so…

Perhaps Barrett could be asked to explain the Hatch Act. You know, the 1939 law that “prohibits civil service employees in the executive branch of the federal government, except the president and vice president, from engaging in some forms of political activity.”

After she does, maybe remind her of the multiple, flagrant violations of Hatch during the recent Republican Convention and seek her legal opinion on these myriad infractions and the impact to the most basic foundation of our democracy - the rule of law – if such violations go unpunished.

Keep mixing it up.

Ask her if she might detail the Constitutionally-defined duties of the U.S. Congress to oversee the executive branch. Again, presuming the hearings will be broadcast live, such a request for Constitutional clarification will be valuable to Americans assessing the Judge’s bona fides.

Then seek the Judge’s legal opinion on the Trump administration’s repeated refusal to respond to subpoenas from the Congress.  Does she think such refusals by the executive amount to obstructions of Congressional oversight?  Obstructions of justice? If not, why not?

Shift gears.

Why not touch on the impeachment?  Ask Barrett to explain collusion. Then, borrow from the recent GOP-led Senate Intelligence Committee report that lists the contacts between the Trump administration and Russians during the 2016 election and ask her opinion whether such amount to collusion.

And so on.

Again, as noted above, by all or most accounts, the Judge is a good person.  The questions above are not hypothetical. They're all related to real-world happenings, and, well, they’re all pretty blatant examples of breaking one law or another or multiple laws.

So, if Barrett answer dishonestly, she’ll expose herself as just another Trump stooge. If she answers honestly, as a person or her purported character should, then we will all get to watch Trump and his corrupt administration publicly excoriated by his own chosen Supreme Court Justice nominee.

Fun.

An Apology to Stecklow: Huawei Dissembled About Skycom, to All of Us

Two years ago, after being laid off by Huawei for questionable reasons, I published a book about my experiences with the company: Huidu - Inside Huawei.  I still stand by most of the content in the book.  

I stand by my arguments that Huawei has been treated unfairly by the U.S. Government, in some cases for duplicitous cause. I stand by my assertions that, despite its global success, Huawei is remarkably internally dysfunctional, as well as prejudiced in terms of its treatment of and general lack of respect for non-Chinese, whether employees or otherwise. 

But, I would like to extend an apology for a section of one chapter in the book, a chapter which re-captures a January 2013 blog post in which I lambast one-time Wall Street Journal, current Reuters investigative journalist Steve Stecklow. The blog post focused on Stecklow’s reporting on Huawei’s alleged circumvention of U.S. sanctions on Iran, specifically Huawei’s relationship with a Hong-Kong company called Skycom.

<Aside: I'm a tad torn on this. Not because I have come to believe that I was misled by my employer and am now in part recanting past positions, but, rather, because Stecklow gave a January 2019 presentation to an Asia Society audience in he which dedicated a snarky half-hour to deriding the blog-post section of the chapter referenced above and yet simultaneously used it to frame his self-congratulatory review of his reporting on Huawei and Skycom>.

Stecklow and I had multiple and substantive conversations related to his reporting on the Huawei-Skycom-Iran topic back in 2011-2012.  To the extent that he quoted me in his reporting, it was in the context of for-the-record guidance either developed or approved at Huawei HQ in Shenzhen, including the boilerplate statement that Skycom was an independent company with which Huawei had a normal arms-length business relationship.

The same applies to representations the Huawei D.C. Office may have made to relevant government agencies or office in the Congress.  We did not deliver such messaging blithely.  Indeed, over my eight-year tenure with Huawei, the Americans in the Washington Office took Iran and export control-related matters very seriously, and we pushed hard to have Legal and Trade Compliance leadership at HQ provide us with proof of Huawei compliance with U.S., EU, UN or other relevant sanctions.

We were skeptical, even deeply so, for instance when we learned that Huawei’s CFO had been a Board Member of Skycom in the late 2000’s. But HQ seemed to have legitimate answers to our questions and genuine in their reactions to our probes, and, well, we could not imagine that Huawei leadership would dissemble about matters as critically important to Huawei’s global business – it’s sustainability writ large – as U.S. export control and sanctions policies. 

Neither Stecklow nor the U.S. Government has yet produced – publicly - any evidence that Huawei was indeed selling or has indeed sold sensitive, sanctioned or export-controlled technology to Iran or elsewhere, directly or indirectly. If the U.S. Government had such a smoking gun, given the pattern of their behavior in all matters Huawei-related, they’d have long ago crucified the company

<Notably, Stecklow’s early reporting on Huawei providing network equipment with integrated law enforcement interfaces (not export-controlled at that time) to Iran being somehow uniquely nefarious was silly: As explained to him at the time, global network standards as approved by carriers and governments require vendors to incorporate such interfaces, for instance under the U.S. CALEA law>.

But, Stecklow’s 2011-2012 - and since - reporting on Huawei’s tangled relationships with Skycom seems to have a pretty strong basis in fact, notwithstanding Huawei’s historical denials and attestations that such entities were independent.  Indeed, his reporting has been cited as evidence in Iran sanctions-related Canadian and U.S. legal cases against Huawei’s CFO, now two-years detained in Canada pending extradition to the U.S., as well as related and broader U.S. charges against Huawei writ large.

Grossly simplified, the U.S. believes that Huawei leveraged a controlling relationship with Skycom to circumvent U.S. sanctions on Iran.  That said, the focus of U.S. criminal charges is that Huawei’s CFO and other executives pursued a conscious scheme to mislead banks about the company’s relationship with Skycom, and based on those misrepresentations, HSBC for one may have inadvertently violated sanctions or export controls by clearing funds related to illegal transactions out of Iran.

Huawei maintains that it sold its interest in Skycom in 2007 and denies any wrongdoing, including in the context of presentations or representations to banks or otherwise.

I have grown to believe that the U.S. may have a strong case.

Today, September 16, 2020, Stecklow and Reuters colleagues ran a piece titled Top Huawei executives had close ties to company at center of U.S. criminal case, prompting this blog post and my apology to Steve for my January 2013 blog post and its re-purposing in a section of a chapter in my 2018 book.

It seems that Stecklow and company have discovered that the Huawei-Skycom relationship that Huawei maintains was severed in 2007 remained alive and well in Brasil from 2007 to at least 2012. 

While Skycom was sold off to Canicula Holdings – a holding company registered in Mauritius in 2007 which the U.S. Government has suggested is another Huawei-funded shell – Stecklow reports that previously unknown Skycom shares in Huawei Brasil, dating back to 2002, were not sold until 2012 (and that was to Netherlands-registered Huawei Technologies BV).

The nugget in their reporting that stood out to me was the fact that two of Huawei’s three current CEOs – Ken Hu and Guo Ping – were directors of Huawei affiliate Hua Ying Management Co Ltd that bought 100% of Skycom in February 2007 and transferred those shares to Canicula nine months later.  Oh, of note, Huawei’s CFO now under house arrest was Hua Ying’s corporate secretary back in 2007 as well.

What bothered me when reading the article wasn’t that Huawei may or may not (I now lean towards “may") have maintained control of Skycom well beyond 2007 and, related, indirectly contributed to violations of U.S. sanctions whether through Skycom or in the context of the more convoluted path of briefings to banks.  No, my concern was much more parochial.

Over my years with the company, particularly in my early years, I had a number of opportunities to interact with both Ken and Guo, one-on-one (separately), whether on their visits to the U.S. or over lunch or coffee during my visits to Shenzhen.  Given the importance of the U.S. market, the political environment, and U.S.-China relations more broadly, such meetings were not unusual.

The thing is, I recall – perhaps incorrectly - raising Stecklow/Skycom concerns with one or another or both of them at some point in the 2011-2012 time frame.  Iran-related concerns were a big deal for us in the D.C. Office.  American emotions related to Iran are always high and any perception of Huawei wrongdoings could have been devastating.

I had no idea at the time that they had both been intimately involved with Skycom, as Reuters has now uncovered. 

And yet, I have no recollection of either of them in any way acknowledging having ever heard of Skycom when the topic was raised.  Had we in the Washington Office had access to the full Skycom and Iran histories as early as 2011-2012, we could have adjusted our posture in D.C.  At the very least, we might have avoided potentially making fools of ourselves briefing U.S. Government officials with details they may well have known to be, at best, “incomplete.”

Sadly, this pattern of behavior – compartmentalization of information essentially based on nationality – is, in my experience, the Huawei norm, not the exception.

Is it any wonder Huawei has always been and remains trust-challenged in D.C.?

Get Ready - November 3rd and the PEAD threat

Those who know me or have followed my past FB posts or comments might be familiar with my concerns expressed over the last couple of years that Trump will not leave office when he loses the election this November - mere weeks from now.

We all know that he is engaged in a wide range of shenanigans to suppress the opposition vote, most recently by efforts to cripple the U.S. Postal Service. Congressional Members of the former Republican Party (now the Cult of Trump) have unfailingly enabled him along the way.

It is unclear if any of Trump’s anti-Democratic, unconstitutional measures to disenfranchise voters will succeed in preventing the American electorate from throwing him out. Indeed, given the sheer popular disgust at what he has wreaked upon our nation and global reputation, it seems unlikely.

In earlier musings I’ve wondered about the possibility of Trump, post-November 3, declaring martial law on some or another pretext, while he challenges the veracity of the vote, based on bullshit allegations of fraud. I’ve also worried he might unleash his brownshirts again, as he did in Portland.

Worse, I’m genuinely concerned that his well-armed lunatic fringe of supporters – like the so-called Proud Boys, or their extremist right-wing anarchist allies the Boogaloo Bois, or whichever other flavor-of-the-day madfolk – might take it upon themselves to rain terrorist havoc down on our country.

I’ve chuckled at the blue-sky media musings of Trump refusing to step down only to have the Secret Service escort his sorry ass out of the White House on January 20, 2021, and, with no anointed Chief Executive, ushering in Nancy Pelosi in his stead. Yeah, right. Not.

No, Trump knows he’s fucked if he leaves. Too many State-based legal cases stacked up against him that will almost certainly produce adverse results for him and his grifter kin that cannot be undone by Federal pardon, should someone be dumb enough to contemplate such a sin.

Which leads us to what Trump has occasionally referred to as his “secret powers.” As he blathered in March of this year, “I have the right to do a lot of things that people don’t even know about.” Meh, with Trump, we all just assumed he was spewing more bullshit.

Whoops. Someone somewhere (Rudy? That criminal creep?) may have briefed the Idiot-in-Chief-cum-SAT-cheater on the concept of Presidential Emergency Action Documents, also known (sigh) as PEADs. Lord, what a nightmare when it comes to Trump (his supporters are still fixated on “cum”).

There’s been a lot of chatter today and in recent days about PEADs, basically presidential orders that are drafted in anticipation of a range of hypothetical, worst-case scenarios. Okay. Except, uh, no-one knows – not even the Congress – what powers a PEAD might afford a President. It’s classified.  FFS.

PEADs were born in and of the Cold War and fears of a nuclear attack that might incapacitate the country. The assumption was that a sitting President (and advisors) would have in mind the best interests of the country and citizenry and act accordingly. Trump? Oh shit.

While there are no publicly available PEADs, they are known to contain provisions allowing, for instance, suspension of the Constitution, you know, martial law, the roundup and detention of people not suspected of any crime, etc. That sort of stuff. Basically, Trump’s abuses in Portland, on steroids.

Oh, it gets worse. Under the National Emergencies Act of 1976, the President can declare a national emergency just by signing a proclamation. Trump? Oh. Shit. Again. And this, now, is how I anticipate he will address his loss in November, or, before, perhaps suspending the elections altogether.

I’ve not been a fan of the gloom-and-doom types predicting a post-election civil war. We’re bigger and better than that, I’ve thought. Well my American friends, in whatever fashion, we cannot let any PEAD-inspired abomination occur. It would be the end of our nation. Stand up.

Forbes/Calhoun: Five Points to Save Huawei? Forgot Localization

On July 23, 2020, George Calhoun, who I do not know but who seems to have a remarkable pedigree, had a thoughtful contribution published by Forbes titled “How Huawei Could Save Itself: A Five-Point Plan” (linked).  Good ideas.  But not enough.

(Full disclosure: I worked for Huawei from 2010-2018. I owe them nothing and, frankly, in light of how I was mistreated in my final years, I have zero reason to stump for them.  However, I remain engaged in terms of the broader geo-economic and geopolitical policy issues that the Huawei conundrum presents).

George opened with an apt disclaimer: “I have no inside information related to Huawei. I have never done personal business with them, and I have not spent much time in China. I do have a background in the wireless industry, but my proposals here are generic to modern business practice, and/or a sort of common sense, I think. Which is not to say that any of them have a practical chance of being adopted.”

Well said.  And his thoughts are valuable.  Huawei, however, is unique.

The first of the five points suggests that Huawei should follow and be assessed to its performance according to globally-accepted financial/accounting standards.  Now, as I used to parrot when I was with Huawei, George notes that “Huawei currently provides financial statements that comply with international accounting standards (IFRS), audited by KPMG…” He goes on to point out, however, that Chinese companies listed on American exchanges don’t follow the requirement to be reviewed by the Sarbanes-Oxley spawned Public Company Accounting Oversight Board (PCAOB) since the Chinese government has blocked the PCAOB from exercising its function for Chinese companies.  Now, Huawei is not listed in the U.S., but George suggests “Huawei should request the Chinese government for a waiver to allow PCAOB to review KPMG’s audit, and, they should also invite an additional audit review by a different firm – not KPMG, and not based in China, and, they should also publicize the waiver request, even in the face of Beijing’s likely disapproval, and actively lobby the government to permit it." Strong idea.  Not enough though.  And, the current Huawei wouldn’t touch it – they are beyond adamant about not going sideways of the Chinese Government or the CPC.

For his second point, George suggests that Huawei should ask to have its credit rated by the three leading global rating agencies, according to global standards, and not as is the current practice or relying on credit ratings from suspect Chinese credit rating agencies, which operate by credit ratings standards that are not equivalent to global standards.  George notes that credit ratings performed by global firms like S&P and Moody’s would amount to “another form of “audit…which is in some ways more demanding and more substantive than an accounting audit, because it also considers the nature and viability of the company’s strategy and the competitive market environment.”   He’s correct.  This would be an easy thing for Huawei to do and would certainly help their global reputation.  It’s been recommended before.  It’s unclear why Huawei has balked.

George’s third recommendation, in my opinion, falls quite flat.  He points out that “The number one stated concern of most Western governments is the possibility that information passing through Huawei’s networks could be accessed by the Chinese government.”  He then cites unspecified Chinese law that says the company like all Chinese companies are subject to “forced cooperation with the Chinese military intelligence service.”  This is a constant canard of the U.S. Government, despite the fact that Chinese, international and American lawyers have all pointed out that no such law exists in terms of outside-China data and information.  In any event, why would they publish a law in a country lacking a history of the rule of law?  That question is what undermines George’s third recommendation, e.g. that “Huawei should construct its own firewall…to interpose between its equipment and the Chinese security apparatus and block the transfer of user information. This firewall should be open to inspection and validation by outside authorities.”  This is a pipe dream, absent fundamental overhaul (foreshadowing).

Point number four has George proposing that Huawei jettison it’s historical, militaristic “Wolf Culture.” George mistakenly opens suggesting that “Huawei sprang from a military origin.”  This is simply untrue, but he has a point that the culture encouraged by Huawei Founder and still CEO Ren Zhengfei – a former PLA civil, not telecommunications, engineer - is indeed militaristic, rhetorically.  Ren still speaks in riddles and analogies that sometimes rely on his military past (and just as often on his love for nature), but, having spent enough time in the organization, albeit as a Westerner, I can say that the “Wolf Culture” has really just become proud company lore at this point.  All of that said, should Huawei want a cheap and easy PR campaign, they could do as he suggests and “euthanize the wolf culture,” but died-in-the-wool Huawei adversaries in the West wouldn’t buy it.

George’s point number five is one focused on something that has always been a source of consternation in the West: “Who Owns Huawei?” George says “The company says that Huawei is employee-owned. 100,000 happy capitalists. Probably a lot of millionaires. Just like Microsoft, more or less…”  I must admit, that sums up what we were saying when I was with Huawei. And, he points out that in the West the prevailing thought is “that Huawei is either owned or controlled by the CCP.”  Of course, there’s no proof offered for this assumption on the part of Western authorities other than “they’re Chinese so they must be.”  George offers an “interim” recommendation: “Huawei should invite an international team of business, legal and corporate governance experts to review the current structure in detail, with full access to all the appropriate information, charged with producing a thorough and honest report of the current state of affairs.”  Great idea.  Huawei has invited same on multiple occasions, but never followed through.  And, the U.S., for instance, has offered the same as well, and, yet, in 2012 instead sent a gaggle of ham-handed Congressfolk and staff which ultimately released a pre-cooked report that confirmed their largely groundless preconceptions.

George includes a sixth bonus point, what he calls “Laissez-Faire.”  He says that “Huawei’s relationship with the Chinese government has to change. The company needs to stand up to the Chinese authorities and assert its commercial independence from the state’s geopolitical agenda.”  He concludes: “It is time for Huawei to become what they say they are. Stand up now. If we take the company’s self-characterization at face value, as they want us to, true to its outward clothing as a private company with a no controlling government ties – then show us! Take the heat. The world will rally to you.”

Now, while I greatly appreciate those heartfelt sentiments, and I truly believe that George’s entire article is reasonable, rational and hopeful, as I said before, Huawei is simply not going to go sideways of the Chinese Government, at least not in China.

Which leads me back to George’s point number five where he also said: “Huawei should consider how to restructure itself so as to bring its ownership arrangements into line with a more comprehensible and transparent structure. Whether this involves creating a public company, or a hybrid with multiple share classes, or a partnership, or a state-owned enterprise...”

Yes.

Over my eight years at Huawei, I spent better than half of them advocating for the company to address its Western nation challenges through organizational change.  Specifically, I repeatedly recommended that the company should localize.  And I mean truly localize.  The company has a mantra that talks about 75% localization.  It’s a crock. A) A lot of those folks are Green Card holders from China, and B) Local executives are almost universally not empowered to make decisions or otherwise run the business.  And, it’s not hard for local stakeholders – including Government – to recognize this, which makes Huawei more suspect, which reinforces pretty much all of the negative assumptions about the company.

Further, I recommended that the company should make a harmless investment in the U.S. that would require it to go before the Committee of Foreign Investment in the United States (CFIUS) – A who’s who of sixteen U.S. Federal Government agencies charged with assessing foreign acquisitions for potential national security threats.  Further, I suggested the company acquiesce to whatever the Committee might demand to approve a transaction.  Yet further, I suggested Huawei and the U.S. Government could use the process to birth a truly independent, transparent American subsidiary of the company, including with select Government-appointed Board Members, and other Americans empowered to make real decisions, and appropriate security assurance mechanisms established and monitored to ensure the integrity of American networks and data.

So, in sum, I think George's recommendations were great, with a couple of exceptions in terms of Huawei going domestically (China) sideways of the PRC or CPC, and with the addition of perhaps the most critical requirement – empowering non-Chinese in non-Chinese markets to manage the business and oversee the security of non-Chinese critical infrastructure.

State Paper Promoting Perilous China Decoupling Rehashes Huawei

China-based Huawei, the world’s leading telecommunications equipment vender, has long suffered strident U.S. Government opposition, both within the U.S. and, increasingly, over the last decade, extraterritorially. The U.S. Government believes that Huawei is effectively or actually an arm of the PRC/CCP and thus presents a national security threat, both in terms of facilitating espionage and in the context of China’s potential dominance of the global information and communications technology industry. 

No credible public proof of the U.S. allegations exists.  Huawei denies them.

On May 22, 2020, the State Department’s Office of the Undersecretary for Arms Control and International Security released Volume 1, Number 8 in its series of Arms Control and International Security Papers, titled U.S. National Security Export Controls and Huawei: The Strategic Context in Three Framings, authored by Assistant Secretary Christopher Ford, a Trump political appointee.  Link to the paper: https://www.state.gov/wp-content/uploads/2020/05/T-Paper-Series-U.S.-National-Security-Export-Controls-and-Huawei.pdf.

The paper purports to discuss “recent U.S. moves to restrict transfers of cutting-edge U.S. technology to Chinese technology company Huawei, explaining these steps and placing them in the strategic context of a great power competition with the People's Republic of China (PRC) brought on by Beijing's geopolitical revisionism, exploitation of such firms to steal and divert foreign technology to support the Chinese military, abuses of human rights in China itself, and employment of companies such as Huawei as tools of strategic influence.”

The “recent U.S. moves” referenced in the paper are changes to the U.S. export control regime – and specifically the so-called “Entity List” - which allow for more broad reaching restrictions and license requirements for U.S. firms that might do or contemplate doing business with foreign firms, with Huawei as an example.   At this point, not only can U.S. firms not export (without license) components to Huawei, they are restricted from selling Huawei the gear currently required by the Chinese company to produce, for instance, higher-end semiconductors.

That said, in reality, the paper’s references to Huawei are largely limited to repetition of never-proven accusations, and reiteration of Huawei’s Iran sanctions busting-related sins (the latter which is legitimate in terms of charges that the company engaged in sales of controlled technology).  Oddly, inexplicably, Huawei’s Iran debacle is conflated with utterly unrelated allegations of intellectual property theft, spotlighting “source code and user manuals for Internet routers,” a clear reference to an over twenty-year old incident involving Cisco.  There is also reference to charges filed this February related to undetailed but alleged intellectual property “misappropriation” from six U.S. technology firms.

The paper’s true focus is on China, not Huawei. 

China’s history of intellectual property theft is broadly discussed, with commentary also looking forward in the context of the “Made in China 2025” initiative, characterized as epitomizing “the PRC’s drive to seize a dominant share of global high technology markets as soon as possible;” the paper expresses great competitive concern for China’s strategy of “military-civil fusion” (these are legitimate concerns).  There is also a good deal of detail and condemnation of  China’s pattern of human rights violations featured in the treatise – “Huawei and it’s siblings” are described as “handmaidens…of oppression” via provision of surveillance technology, notably similar to elements of the “smart cities” technologies and capabilities being developed and marketed by U.S. and other Western firms.

Somewhat diluting its impact, there is an odd pretentiousness to the paper, in terms of its broad and perhaps not-always-necessary use of ill-fit or over-thought or just gratuitous analogies and metaphors.  The slightly tortured paragraph on the second page attempting to analogize Chinese landscape painting to the so-called Huawei Policy Landscape is a reach, at best.  The reference to Voltaire and 18th century Prussia and its army on page three is gratuitous.  And, given China’s rich and long history, page four’s cherry-picking of the fourth century BCE legal framework that allowed for the establishment of the Qin Dynasty as some sort of scene-setter for today’s environment in China seems just filler.

Finally, in terms of over-the-top analogies, the Conclusion section’s references to “Thucydides’ rendering of Pericles famous funeral oration for Athens’ early casualties in the Peloponnesian War” and “Venetian officials who in 1745 actually dispatched an assassination team to pursue two local glass-blowers who had taken the lucrative secrets of their trade abroad” approach the definition of pretentious.

Yet, notwithstanding the misleading title, the parroting of tired or undetailed allegations about Huawei, the all-over-the-place analogies and metaphors, there is value to the paper.  On the one hand, it sets the stage for the more recent June 15 Commerce Department announcement and clarification that Huawei’s inclusion on the Entity List does not preclude American companies from engaging with Huawei in 5G standards development.  It is the normal course of business in the telecommunications industry for standards to be developed globally and given Huawei’s 5G leadership, not allowing American firms to collaborate in 5G and related standards bodies including Huawei would severely disadvantage those companies.  The Commerce ruling is welcome.

But, the announcement should not be interpreted as a loosening of the U.S. stranglehold on Huawei.  It is not.  It is 100% self-serving on the part of the U.S., and very necessary for U.S. industry to remain viable in the 5G space.

On the other hand, and perhaps the most important takeaway from a macro perspective, the paper highlights that the U.S. seems determined to decouple from China, in the technology arena, and, it would also seem, more broadly.  However one might feel about China, from an economic, political, ideological, trade, rule-of-law, human rights or other perspective, decoupling is a dangerous prospect.  America has retreated from our global leadership position in recent years, which is worrisome.  Meanwhile, China’s profile and influence has grown, which is yet more worrisome.  Whether we like it or not, we must accept that China has emerged as a peer of sorts on the global stage, clearly not in terms of democratic values, but certainly from a political and economic perspective. 

On the technology front, we should – we must – recognize that the information and communications technology industry has become global, interdependent, borderless.  Supply chains and networks coexist and overlap.  There is no putting this genie back in its bottle.  While we have bits and pieces, and primarily at the high end, the U.S. cannot hope to midwife a full-blown telecommunications industry.  China, however, has the financial, human and technological resources to verticalize their own.  This is not in our economic or national security interest.  Indeed, our goal should be to remain integrated so that technology solutions and products remain intrinsically global.  It is arrogance to believe that we can go it without China.  Strategic re-coupling should be the path we follow, and urgently.

So, Huawei (v2)...

I am no apologist for Huawei.

My tenure with the company damaged my reputation and career.

That aside, let’s face it, the company has proven itself unequipped to master its own global destiny, to own its own narrative.

Sure, Huawei will dominate China in terms of information communications technology (ICT).

And Africa.

Success in that latter market is almost certainly a result of collaboration with China’s government to develop and deploy the energy, transport, communications and financial infrastructure for the next generation source of low-cost labor.

(C’mon America, we used to do the same thing all over the planet, back when we had money and respect).

But, Huawei will be shunned elsewhere (well, maybe not their phones).

Why? 

Because America.

The American jihad to crucify the company is unjust and, ultimately, will result in terribly bad tidings for the U.S. ICT industry.

I’ve blogged for years about the hypocrisy of the American assault on the company, given that all ICT firms operate outside old-world geographic borders and are all equally subject to penetration and compromise.

The most recent Huawei development? The comical “criminal” investigation of the “Tappy” case that was settled in civil court years ago.

Did $100 billion dollar company Huawei really conspire to “steal” T-Mobile USA’s silly little robot technology that, literally “tapped” on cell phone screens to quality-test their functionality? 

Please.

Did Huawei screw up? 

Yeah, a couple of linear-minded engineers apparently “borrowed” the robot’s “finger” to determine why it produced results different than the Huawei robot finger.

Dumb. 

Crime of the century?  Hardly. 

Proof of Chinese theft of American “intellectual property?”  Oh for f*ck’s sake, of course not.  It’s a robot finger that taps on phone screens.  It ain’t rocket science.

So, what’s America doing?  And why?  I mean, it’s not like there’s a domestic industry to protect (sure, Cisco builds bits and pieces, but not full networks).

Is the U.S. so tight with Finland and Sweden that they need to nurture their ICT industries?  Nah.

So, WTF is going on?

Hard to tell, but, if I had to guess…

The Tappy case is just a momentum-builder. 

The early December detention of a Huawei executive (CFO Sabrina Meng) in Canada – and the more recent formal extradition request – have saturated the media, with daily updates, and as people have become numb to the Meng media overload, the Government needed to goose the Huawei witch-hunt again. 

Hence reviving the Tappy case.

The Government needs to keep the momentum hot because the next step, I believe, is almost certainly a conclusion to the two-plus year-old Commerce Department’s Bureau of Industry and Security (BIS) investigation of Huawei’s purported illegal activities conducted through alleged shell partners in Iran ten years ago.

Timing is key.

The annual Mobile World Congress (MWC) in Barcelona is scheduled for the end of February.  MWC is the show to end all shows when it comes to the global wireless industry.

My guess (again): Between now and MWC, the U.S. will wrap up the BIS investigation with a negative finding and issue an order placing Huawei on the “Designated Entity” list, precluding U.S. companies from exporting to Huawei without license, requests for which can be expected to be denied.

In other words, if I’m right, they plan to humble and hobble Huawei going into the annual event in which many if not most major mobile industry deals are struck.

It’ll likely be a temporary measure, as it was with ZTE two years ago, but, again, timing is key, and it will hurt.

Or maybe I’m wrong…

So, Huawei...

I served this company for nearly 8 years.  I even wrote a book about the experience.

Huawei is getting a raw deal in the U.S., and globally, as a result of U.S. Government machinations.

Yet, Huawei bears not-insignificant fault for the situation.

Western intelligence services have yet to provide the slightest evidence of any untoward Huawei activity on behalf of the Chinese Government.  And, Huawei has done next to squat to prove them wrong.

I am, have always been, an internationalist.

I believe in interdependence as those Westerners did - led by the U.S. - in the wake of the Second World War.  Those that birthed the Bretton Woods Institutions: The World Bank, the IMF, the GATT (now WTO).

Their goal was to create a global system for stable trade and finance to ensure against the type of disruption that contributed so greatly to two damning World Wars.

Those visions have been supplanted by time and, now, old-school Cold War thinking rules the day.  Indeed, our current President almost certainly has no clue what Bretton Woods might be.

Instead of world stability and prosperity, this President is pushing for destabilizing conflict, and, given that he is compromised when it comes to Russia, he has chosen to focus on China.

There is some truth to U.S. concerns being expressed:  Are the Chinese spying on us?  Yes.  So are Russia and many of our allies.  Is China stealing intellectual property? Yeah, but not like 20 years ago - they've emerged instead as technology leaders.

Might China take down our critical infrastructure in times of tension?  Sure, but far more likely with high-altitude nuclear bursts which would spawn EMPs to knock out modernity as we know it, rather than clumsily harnessing ICT firms based or doing business in China.

Thanks to Mr. Snowden, we know how American companies were compromised to allow U.S. espionage and exploits - through service providers, a manageable conspiracy - but not through hardware/software players.  The latter would have been an unsustainable conspiracy in terms of taking down critical infrastructure, although its been successful in terms of conducting espionage.

So, is the West reeling as they wake up to potential Chinese technology leadership on a global basis?

Yes.

But the American jihad against companies like my former employer date back two-plus decades. It's just that over the last year or two the intelligence and defense careerists have stepped-up their efforts at home and abroad because there is simply no rational leadership coming from the White House or its crumbling Administration.

And yeah, Huawei has done itself zero favors.

Arrogance, hubris, pride, the imagination that Chinese national employees know best even when dealing with matters they frankly don't even begin to understand.  They claim to be a global-local company (how trite that has become).  They are not.

Until and unless Huawei diversifies its leadership and learns to trust and rely on non-Chinese national employees - both at headquarters and in the field - they will always be suspect, and they will be increasingly challenged, as we are seeing on a daily basis now.

But the U.S. strategy?  Blackball China-based vendors when all of the non-Chinese competitors are conducting R&D, coding and building in China? Madness.  There is no U.S. industry to do what Huawei, Nokia and Ericsson do.  Bits and pieces, sure, but that's all.

The danger inherent in the U.S. strategy is that we may force the only country on the planet that has the human, financial and technological resources to verticalize an information and communications technology (ICT) industry - China.

Wouldn't America want to have Western inputs into such an industry (Huawei procures over $10 billion dollars annually from U.S. suppliers to fuel its supply chain)?  Cutting them off is not just a commercial and employment headache, it precludes the U.S. from maintaining their own backdoors.

It's time to inject commercially and technologically and national-security based rational thinking into this debate, before it is too late.

Transitions...

Well, after just short of eight years with Huawei, they laid me off in April of this year, about five months ago.

Needless to say, getting laid off was a bit of a letdown after having devoted so many years to defending the company against its many detractors.

Some of my experiences are cataloged in the recently published book linked below.

https://www.amazon.com/Huidu-Inside-William-B-Plummer-ebook/dp/B07DHZDSYG/ref=sr_1_1?s=books&ie=UTF8&qid=1536171492&sr=1-1&keywords=huidu

Now it's time to find a new gig.

Is the End Game Approaching? Nah. Or?

It’s been a while. 

For anyone who has historically followed this blog, you may have stopped, as I wearied of posting. 

For those who are new to this blog, it began as a series of musings on family and technology, and open markets and an open Internet, and then evolved into an ongoing review of the U.S. Government’s quixotic assault on my employer of the last eight years – China-based Huawei Technologies. 

In the last year or two, I’ve gone relatively – not entirely - dormant.

One doesn’t have to read the last eight years of posts to follow this one, but it might help.

Huawei is an almost-30 year-old China-based tech company. 

It’s grown from a reseller of other company products, to researching and developing and producing it’s own product – an innovation and intellectual property powerhouse.

It’s now the world’s largest telecommunications equipment provider, the third largest smartphone provider globally, and, pretty much, the world’s leading information and communications technology (ICT) company.

Huawei doesn’t do it alone. 

Huawei, like every global ICT company, relies on a global supply chain, conducting R&D globally, partnering globally, procuring over $10 billion annually from U.S.-based suppliers alone.

But this ain’t about that.

This is about the U.S. Government having recently fired up an all-new campaign to block Huawei from the U.S.

Why?

Because Huawei is perceived as a threat to U.S. national security.

Bullshit.

Oh dear, Huawei is based in China and thus must be vulnerable to Chinese Government manipulation.

So too are Cisco, Ericsson, Nokia, Microsoft and on and on, all of the U.S.-based and other Western companies that employ tens of thousands of Chinese in China to code and produce their solutions.

But the U.S. Government knows that.

They also know that they’ve penetrated all of these companies themselves, to compromise their solutions to enable espionage, intellectual property theft, etc. (https://en.wikipedia.org/wiki/Tailored_Access_Operations). 

Go figure.

They also know that the ICT industry is global and interdependent.  They know that there is no ICT company that is not researching, coding and building in China.

They know this.  They mourn this.  They want yesterday.  But that was then, this is now. 

America can choose to embrace the global ICT industry, or reject it and let it all gradually verticalize, likely in China, perhaps the only country which can currently afford to do that in terms of human, capital and technological resources.

That, of course, would NOT be in our national security interests.

But arrogance abounds.

Let’s recap how the U.S. Government has, over the last 10 years, deterred Huawei's market access, and, indirectly, adversely impacted U.S. telecom carriers, investors, suppliers, and consumers.

• In early 2010, National Security authorities pressured AT&T executives away from selecting Huawei’s network gear for its 4G upgrade project.
• In late 2010, the then-Secretary of Commerce similarly pressured Sprint’s CEO to stop considering Huawei from purchasing Huawei gear for it’s network upgrade.  This cost Sprint billions, and factored into its ultimate sale to a foreign-based owner.
• In 2011, CFIUS further chilled Huawei’s prospects by unwinding a transaction which posed "national security" concerns due to a "sensitive technology" which the Government later declined accepting as a donation as the technology was of no interest.
• In 2012 Huawei suffered humiliation as a result of a sham of a national security Congressional Investigation that The Economist best captured at the time as "written for vegetarians."
• The machinations got more clever in 2014-2016, e.g. in the CFIUS approval of Softbank-Sprint, which called for sweeping Huawei from Clearwire, but more importantly requiring Government approval of “new” venders.  
• The FCC put a similar provision in the Metro PCS-T-Mo spectrum license transfer.
• More recently, in December 2017, a passel of Congressfolk wrote to the FCC warning against the sale of Huawei smartphones to AT&T. Nonsense.  And they knew it.  A PR stunt.  It worked, AT&T scuttled the deal rather than risk rejection of its Time Warner acquisition.
• In early January, 2018, the House introduced HR4747 which, in part, would ban government entities from contracting with any commercial entity that contracts with Huawei - an effective de facto ban.
• And just this week, Reuters reported that unnamed Congressional aides said that the intent on the Hill was to block all AT&T (and presumably other U.S. carrier) dealings with Huawei.

What a load of crap (much of which has been detailed in this blog over the years).

As referenced above, and reflected ad nauseum in this blog over the years, the ICT industry is global, interdependent and transnational – whatever vulnerabilities that may exist are universal, and suggestions otherwise are outright ignorant, and dangerously misleading.

Look, I’m not saying that the Chinese are not spying on us, or us on them, or the Russians on both us, or the Israelis on all of us, or any other State on any other.

I’m just saying that the U.S. Defense and Intelligence community has seemingly abandoned reality.

They are the ones driving this absurdity.  They know better.

The U.S. founded a system of fair and open markets and trade in the wake of the second World War, in large part to bolster global security, our national security.

The U.S. is now in the process of undermining the very global and national security we hoped to secure.

But that’s just my opinion.

They're back...(and they're still slinging lies)

In alignment with the President's visit to China this week, some sino-phobic loon(s) found themselves a new little-known media patsy to pollute the "opinion" pages of the Wall Street Journal with a rehashing of Huawei FUD.

This is the first time in a few years that we've seen someone cram all of the anti-Huawei bullsh*t into one succinct piece.  Sadly, the author won't respond to emails, phone calls, Twitter messages, etc., so, for the record (the bits in italics are rebuttal points):

https://www.wsj.com/articles/chinese-telecom-threatens-u-s-security-1510098689

Chinese Telecom Threatens U.S. Security

Wall Street Journal

By Patrick B. Pexton

11/07/2017

Giving Huawei the green light would allow Beijing to spy on Americans.

Why?  The modern information and communications technology (ICT) industry is transnational, essentially borderless.  Companies like Huawei, Cisco, Ericsson, Nokia, Microsoft, etc. are all global entities.  They all conduct research and development, code software, and design and assemble on a global basis.  They all rely on common global supply chains, sourcing inputs and labor from and in markets around the globe, including all in China.  To the extent that there are threats facing these companies and their products, they are shared.  Indeed, by virtue of the globalized nature of the industry, no company is more secure or more vulnerable than any other, regardless of their geography of headquarters.  Moreover, public revelations in recent years detailing various State-developed (e.g. NSA TAO, CIA Vault 7) exploits of multiple ICT venders – without their knowledge - have further demonstrated the universality of vulnerability.

When President Trump meets with Chinese leaders this week, he should consider an issue that has worried U.S. lawmakers for years: the possibility of the Chinese telecommunications company Huawei entering the U.S. market.

Huawei is a telecom giant, so naturally part of this worry is about competition. It’s the third-largest smartphone maker worldwide and also makes the back-end switches, routers and other equipment that make cellular networks function.

Competition?  With which American companies?  Currently the U.S. cellular telecommunications backbone relies primarily on Ericsson and Nokia (including former Alcatel Lucent) as vendors – an effective duopoly that keeps costs high and the pace of innovation slow.  And what about the hundreds of American companies that benefit from Huawei’s $10 billion in annual procurements from U.S. suppliers?  Should we not care about their commercial success?

But the real concern is national security. Since 2011, when the House Intelligence Committee first began looking at Huawei, members of Congress have been concerned that by using Huawei equipment, Americans could invite the Chinese company to siphon information about them back to the Chinese government.

See the point above about the nature of the ICT industry.

Huawei calls itself an employee-owned company, so its books are opaque to the public; and it’s run by a private board whose members were first disclosed in 2011. Its founder and CEO has longtime ties to China’s military, which is true of many Chinese companies. But U.S. lawmakers think Huawei’s ownership is particularly problematic because of the role telecommunications technology plays in national infrastructure.

Well, the fact of the matter is that Huawei’s books are audited annually by KPMG in advance of Huawei publishing a very detailed and widely publicly available Annual Report.

In 2012 the House Intelligence Committee, after a monthslong investigation, for national security reasons urged U.S. companies not to form partnerships with Huawei and another big Chinese telecom company called ZTE. It also urged the Committee on Foreign Investment in the U.S. to block acquisitions, takeovers or mergers of U.S. companies with Huawei and ZTE.

The House Intelligence Committee report has been widely discredited, perhaps most succinctly by The Economist magazine which labeled it “written for vegetarians.”  In brief, the assertions in the Report were premised on perceptions that, despite the extensive information and documentation provided by Huawei throughout the course of the Committee’s exercise, Huawei was deemed not to have disproven unsubstantiated allegations made by others; The Report offered no credible, factual evidence of its own.

In 2012, the Australian government banned Huawei from bidding on equipment for its national broadband network out of security concerns.

Huawei is a leading provider of commercial telecommunications infrastructure equipment in Australia.

In 2013 the U.S. government barred the purchase of Huawei equipment by several U.S. government agencies, citing cybersecurity risks.

Huawei offers commercial telecommunications solutions to commercial operators, not Government entities.  That said, Huawei is not aware of any law, regulation or rule that prohibits the purchase or deployment of Huawei equipment in the U.S. 

This year, T-Mobile won an industrial-espionage lawsuit against Huawei by showing that the Chinese company had stolen technological secrets from clean rooms at T-Mobile’s testing center.

As one of the world’s leading intellectual property rights holders – ranked number one in terms of patents filed by the World Intellectual Property Organization Patent Cooperation Treaty – Huawei considers respect for and protection of intellectual property a cornerstone value for our company.  Huawei continues to believe in the merits of its defense to the allegations made by T-Mobile. Notably, according to the jury's verdict, T-Mobile was not awarded any damages relating to the trade secrets claim and there was no award of punitive damages. 

And Commerce Department officials are currently investigating whether Huawei broke American trade controls on Cuba, Iran, Sudan and Syria, according to the New York Times.

Huawei has very sophisticated trade compliance programs in place globally to ensure that the company is always in accord with U.S., EU, UN or other export control or sanctions policies.  Huawei is cooperating fully with the U.S. Government in terms of its inquiry.

Lawmakers are also worried because Huawei is a prime bidder for South Korea’s new 5G nationwide cellular network. This matters to the U.S. because in a confrontation with North Korea, the U.S. military may need to use this infrastructure to communicate.

Huawei equipment is deployed, proven and trusted across 170 markets, including virtually every NATO and OECD market, without any reports of security incidents.  See also the points above about the nature of the ICT industry and universal vulnerabilities.

Huawei has dismissed American concerns, arguing that it is a legitimate business with the right to compete in the U.S. under WTO rules. This is true.

Yes, it is.

But Congress and Mr. Trump should be vigilant. In the 2016 elections, Russia hacked the Democratic Party, Twitter, Facebook and Google, all without owning a major network provider in the U.S. But giving Huawei a large telecommunications presence could make America an easy target for Chinese spying.

Nonsense.  See points above about the nature of the ICT industry.

Congress and Mr. Trump should continue to monitor Huawei and consider taking legal steps to block its entry into the U.S. market.

The U.S. has long been the bastion of free trade and open markets.  It would be unfortunate for the U.S. to set market-distorting barriers precedents (which would likely be used against American companies competing abroad) that preclude competition, innovation, and more ubiquitous and more affordable broadband in the name of “security” concerns which – given the nature of the interdependent and global ICT industry (see above) – would be utterly ineffective at securing networks and data.  Indeed, they would create a false sense of security.

Here we go again (again)...

Last week, a contributor to Bloomberg, ran an opinion piece titled “U.S. Spies Think China Wants to Read Your E-Mail” (link: https://www.bloomberg.com/view/articles/2016-09-13/u-s-spies-think-china-wants-to-read-your-e-mail).

The article reports on a supposed new “intelligence community” (so many ironies there) review of “the national security implications of Huawei's potential participation in building the U.S. 5G wireless network.”   

Please recall, I currently work for Huawei, but the views expressed on this blog are mine alone.

The article features no shortage of references to Mike Rogers’ 2012 Congressional “Intelligence” (there’s that word again) Committee “investigation" of Huawei, which produced a report which was aptly dubbed by The Economist as “written for vegetarians,” and has been otherwise pretty much soundly discredited by anyone with half a brain, or even less.

What’s really going on? 

Well, it seems someone somewhere in the “intelligence” (yet again) community woke up to the fact that the world’s leader in next generation networks is a multinational which happens to be headquartered outside the U.S. (which, of course, today, they ALL are), even, shudder, in China.

It's a titillating story, but it’s about nonsense.  

Why? 

Let's parse the article.

The grand conspiracy suggested between a government and a globe-straddling multinational to inject “microscopic beacons” into hundreds of thousands or millions of units of hardware is unsustainable.

China-based companies like Huawei that operate globally employ many thousands of non-Chinese, just as multinational American-based tech vendors employ thousands of non-Americans. 

Infecting countless units of hardware would be too visible to too many who would clearly object.

This is why we’ve read about American service providers being wittingly (if unwillingly) compromised by the NSA, but we’ve not read the same about U.S. hardware vendors.

“Tapping” a service provider is (or was) as easy as the government telling the C-Suite and the Legal Office that they're going to do it and the company is legally obliged to allow it. A tidy, manageable (until recently) little conspiracy.

Not the same with the hardware vendors.

Indeed, what we've learned instead is that American (and foreign) hardware vendors have been “unwittingly” compromised. 

A quick review of the NSA ANT catalog (linked) shows how Dell, Juniper, Cisco, Samsung, Seagate, etc. – and yes, Huawei – have had their gear exploited by the NSA.

Why the exploits?

Why not just ask these companies (at least the American ones) to implant tiny beacons?

Because, again, that is simply not a sustainable conspiracy and, once exposed, it would destroy a company’s global brand and business.

Get it?

The whole premise is nonsense, regardless of where the global vendor may be headquartered, regardless of which government may aim to compromise them. 

Compromises may indeed happen, but not with the complicity of the multinational vendor - they simply have too much to lose.

For regular readers of this blog, none of this is new.  Sadly, it just doesn’t go away.

So, yet again, U.S. service providers, technology partners, employees, consumers, pretty much everyone, suffers the high cost-low quality result, as opposed to the rest of the world…

Applegate: This is Not Sustainable

The hoopla this week around Apple’s grand stand against the Feds’ demand that the company compromise the dead phone of a dead man (http://www.wsj.com/articles/tim-cooks-dangerous-game-1455745398?mod=e2fb) evokes a deeper and more important concern.

At first blush, this would seem a no-brainer: 

Bad guy terrorist gets offed and leaves behind a pin code-protected phone which might host information important to law enforcement.  Why would the maker of that phone not crack the code to enable the government to access whatever intel it might contain?

Simple answer: Because our government has demonstrated that it cannot be trusted not to leverage this particular “one-off” to abuse the privacy of any and all of us, because, well, because they can.

A sad, sad state of affairs.

It’s no surprise that our government (every government) engages in espionage and surveillance.  And, to some extent, rightfully so, if appropriately controlled (a BIG if, as we have all learned in recent years).  

But, as technology has advanced so rapidly over the last couple of decades, control, reason, judgement and laws have been eclipsed, leading to rampant government abuse – because, again, they can.

Ed Snowden has demonstrated time and again that our government has – perhaps unwittingly (I'm being gracious here) - been overcome by technology run amok.

Lawful intercept, review, storage, etc. have all fallen by the wayside as more and more data is gleaned via more and more arcane methods, all justified by the fear-based culture that our government has nurtured over the better part of the last two decades.

So, is it any surprise that Apple battles back against government demands to crack just this one phone?

No, not at all.

American information and communications technology (ICT) leaders are reeling in the wake of all-things-Snowden – their global sales and brands suffering as trust in their commitment to data integrity has effectively dissolved.

Apple is on the ropes.  Others will be.

In the absence of trust, capitulating to this supposed one-off request might well ruin a company.  And Apple knows this.  Notwithstanding government assurances to the contrary, there is very little reason to believe that the one-off compromise wouldn’t become the norm, or, worse, be used by “bad guys.”

Moreover, governments around the world would almost certainly mimic the U.S. demands, as well as abuse of the output, further shaking everyday individual trust in all things digital.

How did we get here?

Governments have always engaged in what might seem unsavory activities in pursuit of the betterment or protection of society, with at times all-too-ready disregard for the rights and liberties of the governed.  The general population simply didn’t know, or perhaps care.

But, today’s remarkable digital world that we have learned is subject to government abuse also facilitates heretofore unheard of transparency – no matter how much the powers-that-be would prefer certain activities to remain in the shadows, they are increasingly frustrated to manage those shadows.

But, knowing that we now know, they still just can’t help themselves.  And we, post-Snowden, are very challenged to trust them.

And that’s why Cook has made his stand. 

Don’t get me wrong – Cook’s not just all about our privacy, rights, civil liberties, moms and apple (sorry, couldn’t help myself) pies.  I believe that he truly worries about these things, but his bottom line has to be preserving sales, particularly overseas sales.

And, in the wake of all-things-Snowden, overseas folk trust our government less than we might.  

Sadly, in this context, the government’s true intent isn’t even really a factor...although they could – and should - have more carefully crafted their demands in such a fashion so as to not raise the spectre of universal compromise.

Indeed, if the Feds had simply delivered the phone to Apple with the appropriate legal authorization to crack it, perhaps we'd be in a different situation. Demanding that Apple create an entirely new version of its OS that compromises built in protections to just crack this one phone seems, uh, unreasonable, perhaps unbelievable.

Bottom line: If Apple bows to the pressure this time, they may well be effectively bowing out altogether…

This is NOT a sustainable situation.  Government needs to take real steps toward restoring trust, for instance, for starters, publicly reining in defense and intelligence community activities and behaviors - particularly here in the Homeland -  that have utterly abandoned the rule of law.

Government needs to rebuild confidence.  Incessant fear-mongering has been the backbone of two decades of unbridled abuse of our privacy and liberties  - anything and everything has been deemed justifiable, including the revoking of American rights and, yes, lives, to ensure that one or another "they"doesn't somehow prevail at something.

Until and unless trust and confidence are restored, the likes of Cook and Apple have little choice but to stand up to the powers-that-be, unless they are willing to go out of business, which hardly seems a result that would be in our best national - and national security - interest.

Safe Harbor, Jurisdiction, Parallel Construction and Pirate Radio

In response (in part) to the Snowden Revelations having undone trust in U.S. companies’ ability to ensure data integrity, the European Court of Justice (ECJ) today invalidated a 15-year-old data privacy pact that allowed U.S. businesses to “legally” transfer EU citizen data across the Atlantic, 

The EU's Charter of Fundamental Rights guarantees the protection of personal data.  In that context, until today, under the so-called “Safe Harbor” agreement, more than 4,000 U.S. companies “self-certified” that they met EU privacy protection laws, thus qualifying them to handle EU data. 

As of today, however, the ECJ rendered Safe Harbor invalid, due to, among other things, America’s global approach to digital surveillance and data collection, as well as the lack of adequate privacy protections in the U.S.

Meanwhile, related, the two-year-old Department of Justice (DOJ) case against Microsoft for refusing to surrender an individual’s data stored on a server at a Microsoft center in Ireland continues to wind its way through the U.S. legal system, with the Supreme Court the likely ultimate arbiter.

At issue: The personal emails of an individual suspected by U.S. authorities in a narcotics case. 

DOJ contends that emails should be treated as the business records of the company hosting them and that a search warrant should compel access to them no matter where they are stored.  

Microsoft argues that the emails are the customers’ personal documents and a U.S. warrant does not carry the authority needed in Ireland - or any foreign jurisdiction - to compel the company to surrender the data.

The Irish government, for its part, maintains that data should only be disclosed on request to the Irish government pursuant to the long standing mutual legal assistance treaty between the U.S. and Ireland.

The case would seem to be a pretty clear no-win all around:

If Microsoft prevails, the global trend towards data localization requirements will almost certainly be accelerated, at the very least undermining the efficiencies of the Cloud, at the very worst Balkanizing the Internet altogether – neither outcome being in anyone’s best interests.

If DOJ carries the day, what little trust may linger in U.S. information service providers will vanish, severely impacting their overseas business prospects and, at the same time, hindering U.S. authorities engaged in legitimate surveillance and data gathering, all the while further setting the precedent for governments worldwide to demand access to data stored in the U.S.

But it’s worse than that.

However the case may ultimately be resolved, uncertainty will reign, piled on top of the chaos echoing in the wake of today’s ECJ Safe Harbor decision, which has left thousands of companies scrambling to sustain businesses and striving for “compliance” with any number of regimes.

Worse yet, governments will not pause their surveillance and data collection.  Indeed, two years of Snowden Revelations might suggest (to some) that the U.S. never really gave a fig about privacy anyway (other governments have yet to be as effectively outed, but are equally suspect).

In that context, whichever way the Microsoft case goes, the U.S. authorities who brought the case will be yet more hindered in the future in terms of “legal” access to the information they desire.  So, they will do what they have already been doing: They will access the data they want in whatever manner they deem necessary.

Meanwhile, in the law enforcement realm, such illicit gathering of information may lead to the institutionalization of the process of “parallel construction,” a method by which the U.S. “exclusionary rule” which protects those accused can be circumvented to allow illegally gathered evidence to be admissible in court, severely undermining the rule of law.

(Parallel construction is already – reportedly - a popular DEA strategy: link)

At the same time, business and criminal enterprises alike may find themselves considering “Pirate Radio”-like data center services, with server banks housed “offshore” (literally or figuratively) in terms of being subject to no-one’s law enforcement or other jurisdiction, potentially threatening the rule of law (but also possibly fostering unique new business opportunities).

Clearly, while concerns related to the confluent conundrums of the Microsoft case and the Safe Harbor collapse are beyond multi-fold, the complexity of the matters involved dictate that there will also be no easy solutions.

So, what next?

Fitful and frustrating global conversations about very complex concepts - ranging from the definition of jurisdiction in a transnational world, to the harmonization of data protection and data compulsion policies, to balancing personal privacy and national security, and beyond.

The goal?

De-conflicting inconsistent data-related (and other) laws and rules across the globe to allow for fair and open and trusted market access to facilitate continued global growth and prosperity in what is an increasingly-digital and borderless world.

How hard can that be?