Op-Ed: U.S. Infrastructure Security Challenged by Misuse of ITC Authority

This original commentary by Phil Stupak appeared in Real Clear Defense on July 29, 2021.

The recent announcement of a bipartisan infrastructure deal, also known as the BIF, is exciting not just for repairing America’s roads and bridges but also for the rapid expansion of broadband access to the nation. The BIF funds broadband infrastructure at $65B. 

American policymakers have been trying to expand rural broadband access for the last 40 years. One of the key challenges has been laying copper and fiber optic lines in all parts of the nation. The key to avoiding a Charlie Brown football moment will be to leverage 5G mobile broadband technology, which is key to expanding broadband access without also needing to run expensive cables to every house. This technology replaces the cable that plugs into your router with a 5G cellular signal and often matches or exceeds the speeds you would normally receive over a traditional broadband connection.

Bringing faster internet to more Americans for lower costs than traditional methods may sound like a silver bullet, but challenges still remain—notably around infrastructure security. By heavily subsidizing global technology giant Huawei, China’s government has pretty much cornered the 5G market by offering bottom-line prices for critical network infrastructure. These massive subsidies threaten the viability of key market economy based industries. Perhaps most importantly, however, Huawei's technology poses numerous national security threats to the U.S. and our allies. With former Chinese intelligence officials on the Huawei board and Chinese national security laws ensuring the Huawei network and its data must be available to Chinese intelligence bodies, it is a perfect storm of security vulnerabilities. Look no further than Hong Kong, where Beijing officials exploited these technologies and networks to assist in the crackdown on pro-democracy advocates and perpetuate Xinjiang's aforementioned human rights atrocities.

After much deliberation across experts and network providers in the major market economies, it was largely understood that it would take open competition and diversified innovation to create a strong, sustainable alternative to the world's Huawei 5G battle plan. In addition to these industry recommendations, the U.S. Department of Homeland Security's Cybersecurity and Infrastructure Security Agency's 5G Strategy outlines suggested industry standards to be followed. The strategy seeks to promote a road map for a secure 5G U.S. rollout necessary to meet the goals envisioned by the BIF. Key top lines of the strategy include encouraging innovation in the 5G marketplace to foster trusted 5G vendors and collaborating with industry stakeholders to strengthen secure infrastructure for future deployments.

Unfortunately, a key 5G industry leader has decided to put potential profit and market control over national security and the existential threat that the Huawei 5G global offensive poses. Ericsson, a major 5G equipment maker, had been pressing Samsung over the renewal of an IP cross-licensing agreement related to 5G equipment patents and started litigation in US court at the end of 2020. But Ericsson did not stop there. Instead, on January 4, Ericsson piled on, filing a complaint at the U.S. International Trade Commission (ITC), which targeted Samsung. Ericsson's complaint alleges infringement of patents found in "electronic devices with wireless connectivity, specifically mobile phones, tablet computers, and smart televisions," even though Ericsson makes none of these products. Just a few days later, on January 7, Samsung fired back to try to even the litigation leverage, with a complaint of their own against Ericsson. 

Unfortunately, Ericsson didn't stop, despite firing the first shot. On January 15, it took aim at Samsung again and once again filed a complaint at the ITC. And yet again, Samsung fired back, on February 4, with an ITC complaint against Ericsson, alleging infringement related to semiconductor devices, wireless infrastructure equipment like base stations, modems, and cellular radio equipment. Subjects of this dispute include antennas, radios, base stations and core network products.