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Trump’s Assault on 5G Standards Bodies

Over the past 30 months, since Trump was installed in the White House, he has systematically abrogated US treaty responsibilities and diminished the nation’s engagement in international collaborative activities. More recently, his gambits have expanded to market entry, chip component, and software restrictions on Chinese telecommunication equipment vendors, especially Huawei. Among the more extreme actions was a de facto cyberattack on Huawei device users running software from US vendors by denying access not only to updates and security patches but also knowledge of discovered vulnerabilities. All of this represented a new phase of pernicious behavior with enormous adverse collateral damage to American companies.

While much has appeared in the media on these actions, rather less is known about Trump’s new assault on “international 5G standards making bodies” and their activities. Eight bodies were explicitly named—IEEE, IETF, ISO, ITU, ETSI, 3GPP, TIA, and GSMA. Somewhat preposterously, Trump sought to impose an obligation on these bodies and participants to not “deal with” Huawei and its many subsidiaries. The action historically is without precedent except long ago during the two major world wars, when all nations’ international standards activities ceased. The scheme is also so ignorant and loony that the standards bodies were left baffled—each responding to the assault in different ways or simply ignoring it. This article describes and deconstructs what occurred over the past six weeks.

Devising the Assault

The scheme was devised through the US Dept. of Commerce, Bureau of Industry and Security (BIS) which has responsibility for controls known as the Export Administration Regulations (EAR) for designated technologies under vague rubrics such as trade enforcement and security. Although the Bureau has a long and largely benign history of controlling the proliferation of weapons of mass destruction, Trump—through a new self-described “trade hawk”—purged most of the leadership, dispensed with due process, and placed himself in control. Check out their org chart. BIS was basically weaponized to respond to Trump tweets by using what is known as the “Entity List.”

The Entity List is the ideal Trump weapon of choice because the BIS leadership has essentially total control of the list, and it can be simply published on its website and take effect almost instantly at the drop of a Trump tweet. Thus, on May 15, BIS issued a Press Release announcing that Huawei Technologies and its affiliates would be placed on the Entity List effective May 16 because of “activities that are contrary to US national security or foreign policy interest” and that a license from BIS would be required to “transfer of American technology” to Huawei—broadly including almost anything and everything in the way of products, services, or information. It published the rules in the Federal Register six days later.

The BIS rule created such an instant public and industry uproar that on May 20 a new Press Release was issued providing a Temporary General License until August 19, and made rule changes effective the same day “to authorize specific, limited engagement in transactions involving the export, reexport, and transfer of items.” It was essentially a time-limited reprieve.

However, tucked into this rule was an utterly bizarre subsection concerning “Engagement as Necessary for Development of 5G Standards by a Duly Recognized Standards Body”—applying the EAR to “engagements” with Huawei and sixty-eight affiliates, and explicitly naming eight standards bodies. The idea was apparently concocted by zealots within the Trump Administration to somehow threaten harm to Huawei by destroying all the international 5G standards making activity in which it engages. Just to make sure, BIS threw in a few extra organizations that have little or no 5G role.

The rule was apparently done with such a lack of competence that BIS could not get the correct names of some of the bodies. Also obviously lacking was an understanding of how these bodies operated, who participated in them, their relevance to 5G standards, or what objective was being sought. This utterly complete cluelessness was foregone by a dearth of almost any US government agency participation in international 5G standards bodies. Moreover, only three of the eight standards bodies had a US presence, and the ITU as the principal global intergovernmental treaty organization for telecommunication is essentially shielded by design.

How the different standards bodies reacted to this May 20 mishegoss, resulted in further unfortunate, clumsy behavior stories. The sensible reaction would be to simply be amused and ignore this new BIS rule—- which is what was done by several of the organizations. Others individually attempted responses.

The IEEE response

The IEEE, which is US based and actually has almost no role in 5G standards making, somewhat incredulously issued an initial statement on May 29 banning Huawei employees from engaging in “non-public” IEEE activities, notably peer review of papers. Given that Huawei massively contributes its IPR and resources to IEEE publications and conferences (Google finds 10 million hits), the adverse reactions were immediate.

Four days later on June 2, the IEEE issued a revised statement, removing the restriction and apologizing for what it described as “a legally complex situation.” A FAQ on the subject was also published by the IEEE 802 standards committee. The IEEE revision was followed up by a poorly crafted apology and further explanation that still seemed unacceptable to the membership, and the resulting damage to the organization could be long-lasting.

The IETF response

The Internet Engineering Task Force (IETF) is also US based and has almost no 5G standards role although some liaison occurs. Furthermore, it has long purported to be simply “a large open international community of network designers, operators, vendors, and researchers” developing “internet standards.” It also has held itself out to be politically neutral and sensitive to human rights.

However, on May 30, the Board of the IETF Administration LLC which now constitutes the organization felt compelled to issue a statement on the BIS rule. Although stating it saw no need to change existing practices, it said it would “address ‘corner cases’ that may emerge, and cautioned IETF contributors. This perplexing IETF response induced an email from a German participant chastising the IETF Board, asking if the “IETF is happy with the current BIS regulations and is not planning to voice any public opinion or suggestions about the regulation.” To underscore the point, he attached a letter of concern to the US DOC prepared by 26 US-based technology consortia stating that their work is at risk by the BIS EAR actions. To date, the IETF Board has remained silent in the face of what is plainly a substantial assault on the human rights of association and communication in its own organization.

The ISO and TIA responses

The International Organization for Standardization (ISO), which is a private Swiss-based global standards body, had no apparent response. It also has essentially no current 5G standards activities, so it is not clear why it was included in the BIS rule. The Telecommunications Industry Association (TIA) is a domestic standards body based in the US with global membership that is focused largely on device standards in the US, and has a minimal 5G standards role, so it is also not clear why it was included in the BIS rule.

However, on June 6, ANSI as the principle US body representing ISO and operating some of its secretariats, as well as the accrediting body for TIA, prepared a strongly worded letter to BIS stating that the EAR does not apply to ISO activities and expressing concern over BIS actions that have a “devastating effect on international standards development and severely impede US industry’s abilities to compete abroad” suggest it and reign in its actions.

The 3GPP and ETSI responses

The 3GPP, which is where most of the 5G standards work massively occurs, is a consortium of multiple standards bodies worldwide, with a common secretariat maintained by ETSI. On 3 June, it added a simple public statement to its legal notices page along with legal status, IPR, and Antitrust statements. It states that Public information is not subject to the EAR, and that “for the duration of the Temporary General License (TGL) issued by the Bureau of Industry and Security (BIS) of the US Department of Commerce on May 20, 2019, there are no restrictions on the release of non-public information to companies added to the Entity List on May 16, 2019, to the extent that information is necessary to maintain, service, or support existing handsets, networks or equipment, or “as necessary for development of 5G standards.”

ETSI as both a global body with more than 900 organizations from 60 different countries, and with special recognition within the European Union, is based in France. Its technical and open industry committees host a considerable number of 5G related standards and collaborative activities. The supporting secretariat also serves 3GPP. ETSI has not issued a public statement on the EAR Entity List in standardization activities—but would likely be similar to 3GPP’s.

The ITU response

The International Telecommunication Union (ITU) is the only treaty-based global intergovernmental organization in the sector. Located in Switzerland, its various bodies have been active for 169 years except during the two major wars. The ITU Radio Sector is the sole mechanism for coordinating global 5G spectrum arrangements—which are closely coordinated with the 3GPP 5G Radio Access Network (RAN) groups through continuing mechanisms. The ITU Telecommunication Standardization Sector produces some specialized 5G standards as well as facilitates the knowledge base and collaboration among the various other external bodies.

Given the nature of the ITU, any responsive statements to Trump’s actions—which fly in the face of the very basis of the organization—would have to come from its Nation State Members through a formal ITU decision making process. What could occur, however, is that its members could adopt a resolution at the World Telecommunication Standardization Assembly (WTSA-20) in November 2020 condemning the recent BIS EAR actions as contrary to public international law. There is precedent for such a WTSA action extending back to 2008.

The GSMA response

The GSMA is a private UK based organization that represents the interests of mobile operators worldwide, uniting more than 750 operators with almost 400 companies in the broader mobile ecosystem, including handset and device makers, software companies, equipment providers and internet companies, as well as organizations in adjacent industry sectors. It is the principal industry organization for facilitating 5G implementations worldwide through a broad array of activities including standards—working closely with 3GPP and ETSI.

GSMA has not responded to Trump’s BIS EAR actions and seems focused on its mission of facilitating global industry developments for all its members.

Other responses

Because BIS has not conducted any public proceeding, it is not possible to discover other formal submissions other than through on-line searches. In addition to the 26 U.S. Consortia mentioned above, the Linux Foundation simply stated it was not subject to the regulations. The Apache Software Foundation issued a similar statement.

Next Steps

These assaults by the Trump Administration on centuries-old public international law, global organizations, and industry collaborative activities need to stop. The latest incident involving standards activities described here is outrageous and unprecedented—adversely impacting the very spirit of professional and collegial collaboration. In addition to being an affront to common decency in human behavior and rationality, what is ensuing is highly destabilizing, an enormous impediment to greater cybersecurity, and significantly harms the growth of the global economic and technical developments of telecommunication services—likely harming US providers and users the greatest for many years to come.

A coordinated worldwide response to this assault on international standards activities needs to be undertaken now by all the responsible organizations, rather than the individual uncoordinated individual responses evident in this latest episode. Indeed, there is a potential mechanism through the nearly thirty-year-old Global Standards Collaboration (GSC) organization. Even though the BIS EAR action may be rescinded, the behavior deserves universal condemnation and attention, lest it again occurs at the next impetuous tweet.

By Anthony Rutkowski, Principal, Netmagic Associates LLC

The author is a leader in many international cybersecurity bodies developing global standards and legal norms over many years.

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Disclaimer - Postscript Anthony Rutkowski  –  Jul 1, 2019 10:47 AM

I have no direct or indirect personal or financial interest in Huawei or any other China company or institution. However, for more than forty years, I have manifested a prominent interest and significant involvement in the international system of collaboration and bodies treated here. Indeed, I continuously follow and analyze in considerable, substantive detail the ongoing 5G related activities in most of these bodies - actively participating in some of them.

Huawei and a number of other China companies and government agencies openly contribute very extensive intellectual property, staff, support monies and other resources to the ongoing work; and they collaborate collegially with their peers worldwide engaged in the activity to bring about public, freely-available 5G specifications for everyone in the market to implement. They deserve collective worldwide recognition and praise for what they have been doing, and properly benefit in the global marketplace. Together with the UK and others, they also have been significantly contributing to 5G security capabilities in the face diminished U.S. engagement.

They are also engaging in exactly the same leadership and contributory roles once provided by leading, designated U.S. companies and government agencies over many decades - who set the model for creating new global products and services through this very effective system of collaboration and bodies, but have in recent years abandoned.

For me, it is also personal as someone who spent a considerable portion of his career as a U.S. government official expanding that dynamic. What the U.S. Administration should be doing is immediately, dramatically scaling its own involvement and understanding which it completely lacks, as well as facilitate greater U.S. industry participation rather than attempting to destroy the entire system because of the success of someone else.

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