Uncrossed Wires — Seeing Through the Lens: A Sharp Focus on FCC’s Surveillance Ban and the Tightrope of National Security

By Jeffrey Wells, NSI Visiting Fellow

The Headline:

The U.S. Court of Appeals for the D.C. Circuit recently upheld the Federal Communications Commission’s (FCC) ability to impose bans on video surveillance products from Chinese companies Hikvision and Dahua under the Secure Equipment Act (SEA) of 2021 while also finding that the FCC’s definition of critical infrastructure was overly broad and arbitrary.

Why it Matters:

The court’s finding is striking, given that over two decades have elapsed since seminal discussions on safeguarding our infrastructure post-9/11 began, and we have still not crystallized our understanding and approach to foundational matters. This judgment underscores the pressing need for a balanced regulatory framework that is precise in its definition of critical infrastructure and astute in its approach to foreign technology. This framework should ensure that national security imperatives are met without impinging upon the dynamism of the free market. This calls for reevaluating our regulatory strategies and demands a more nuanced, disciplined, and forward-thinking approach that befits the complexities of the modern technological and geopolitical landscape.

However, this decision is also a watershed moment, drawing parallels to the historical anecdote of the Trojan Horse. It exemplifies an understanding of the covert dangers of technology imports. It stresses the importance of vigilance and precision in identifying and mitigating potential security vulnerabilities, particularly from technologies that foreign governments could exploit.

From the White House:

While the White House has not issued a specific statement on the court ruling, these actions are part of the administration’s broader efforts to secure U.S. communications networks and prevent potential exploitation by foreign adversaries.

From the Hill:

Congressional response to this ruling should, but is unlikely, catalyze legislative actions aimed at tightening regulations on foreign technology, potentially influencing future directives and policies that govern national security and technology commerce.

The Debate:

The court’s ruling ignites a debate on the fine line between necessary security measures and regulatory overreach. This discourse spans governmental bodies, tech industries, and small to medium-sized enterprises that rely on affordable technological solutions.

What’s Next:

While the court’s ruling upholds the ability of the U.S. government to ban using or acquiring technology from certain Chinese and other foreign firms, it emphasizes the necessity for a clear and stringent definition of what constitutes a security threat and requires the FCC to refine its interpretation of critical infrastructure to more accurately reflect the language and purpose of the 2019 National Defense Authorization Act.

The Bottom Line:

The court’s decision calls for more than just narrowing definitions; it calls for a comprehensive reevaluation of America’s posture towards foreign technology. As geopolitical and technological supremacy is intricately linked to national security, the origins of technology cannot merely be a footnote in regulatory considerations. Each piece of technology integrated into our critical infrastructure carries the DNA of its origin, embedding potential vulnerabilities that our adversaries could exploit. Therefore, the FCC’s approach must be forensic in its scrutiny of technology origins, adopting a stance that is as much about deciphering potential threats as it is about regulatory compliance.

The FCC’s attempts to fortify the United States’ telecommunications infrastructure against foreign adversaries is an initiative worthy of praise. However, the current approach, marked by its need for more specificity and clarity, must genuinely catch up to what is needed to protect national interests. Its inadequacy leaves vulnerabilities unaddressed and casts a shadow over the democratic values and economic competitiveness we look to uphold. The time for half-measures and ambiguous policies is long past. Immediate and decisive action is needed to refine and clarify the bans on certain foreign telecommunications products, ensuring that they are both comprehensive and comprehensible.

Jeffrey R. Wells is a Visiting Fellow with the National Security Institute at George Mason University’s Antonin Scalia Law School, the Chief Security Officer for #AfghanEvac, and a Truman National Security Project Fellow.