Recently, the White House released the “National Strategy to Secure 5G of the United States” the same day President Donald Trump signed the “Secure 5G and Beyond Act of 2020” (P.L. 116-129), legislation that requires a 5G strategy the Administration then implements to address the threats posed by a 5G rollout dominated by Huawei and other Chinese companies. Given how detailed the bill was on what must be in the strategy, either this new document is not intended to satisfy this requirement of Congress or it is, in which case a number of lawmakers are not going to be pleased.
The “Secure 5G and Beyond Act of 2020,” according to its Committee Report, would:
- Require the President of the United States to develop a Federal Government-wide strategy to ensure the security of the Nation’s next-generation—and future generations—wireless telecommunications systems and infrastructure.
- Direct the U.S. Government to assist allies and strategic partners in maximizing the security of next-generation wireless telecommunications systems, infrastructure, and software.
Elsewhere in the report, the Committee explained the legislation “would require the President, in consultation with various other Federal officials, to develop and submit to the appropriate committees of Congress within 180 days of enactment a ‘‘Secure Next Generation Wireless Communications Strategy’’ to do the following:
- Ensure the security of 5th generation (5G) and future generations of U.S. wireless communications systems and infrastructure.
- Provide technical assistance to U.S. mutual defense treaty allies, strategic partners, and other countries, when in the security interests of the United States, to maximize the security of 5G and future generations of wireless communications systems and infrastructure inside their countries.
- Protect the competitiveness of U.S. companies, the privacy of U.S. consumers, and the integrity and impartiality of standards-setting bodies related to 5G and future generations of wireless communications systems and infrastructure.”
Moreover, the bill identifies “19 elements that would need to be included in the strategy,” including but not limited to:
- A description of U.S. national and economic security interests pertaining to the deployment of 5G and future generations of wire-less communications systems and infrastructure.
- An identification and assessment of the global competitive-ness and vulnerabilities of U.S. manufacturers and suppliers of 5G and future generations of wireless communications equipment. A list of domestic suppliers of 5G and future generations of wireless communications equipment and other suppliers in countries that are mutual defense allies or strategic partners as well as a strategy to assess their ability to produce and supply such systems and infrastructure.
- Identification of trusted supplier entities from both inside and outside of the United States that are capable of producing and supplying to private industry infrastructure and systems equipment supporting 5G and future generations of wireless communications systems and infrastructure.
Additionally, the act requires “[i]n developing the Strategy, the President shall consult with relevant groups that represent consumers or the public interest, private sector communications providers, and communications infrastructure and systems equipment developers.”
In the cover letter, Trump stated
This National Strategy to Secure 5G articulates my vision for America to lead the development, deployment, and management of secure and reliable 5G communications infrastructure worldwide, arm-in-arm with our closest partners and allies, including:
- Facilitating domestic 5G rollout;
- Assessing the risks and identifying core security principles for 5G infrastructure;
- Managing the risks to our economic and national security from the use of 5G infrastructure; and
- Promoting responsible global development and deployment of 5G infrastructure.
Trump added
My Administration is committed to protecting America’s national security, promoting our prosperity, and preserving our civil liberties and democratic ideals. Ensuring the security, reliability, and trustworthiness of our 5G infrastructure is essential to these endeavors. This strategy explains how we will do just that.
In the strategy itself, the Administration remarked that “[t]he United States National Cyber Strategy states that:
The Administration will facilitate the accelerated development and rollout of next- generation telecommunications and information communications infrastructure here in the United States, while using the buying power of the Federal Government to incentivize the move towards more secure supply chains. The United States Government will work with the private sector to facilitate the evolution and security of 5G, examine technological and spectrum-based solutions, and lay the groundwork for innovation beyond next-generation advancements.
The Administration added
This National Strategy to Secure 5G expands on how the United States Government will secure 5G infrastructure domestically and abroad. 5G infrastructure will be an attractive target for criminals and foreign adversaries due to the large volume of data it transmits and processes as well as the support that 5G will provide to critical infrastructure. Criminals and foreign adversaries will seek to steal information transiting the networks for monetary gain and exploit these systems and devices for intelligence collection and surveillance. Adversaries may also disrupt or maliciously modify the public and private services that rely on communications infrastructure. Given these threats, 5G infrastructure must be secure and reliable to maintain information security and address risks to critical infrastructure, public health and safety, and economic and national security.
The Administration contended that “[t]his National Strategy to Secure 5G will fulfill the goals of the National Cyber Strategy with four lines of effort” identified by the President in his cover letter.
As noted, it is not apparent if this 5G strategy is meant to be the ‘‘Secure Next Generation Wireless Communications Strategy” called for in the “Secure 5G and Beyond Act of 2020.” And yet, an anonymous Administration official was quoted as saying that the National Strategy to Secure 5G satisfies a part of the bill (without specifying which part) with the implication that the Administration will not be producing a detailed strategy as required by statute. This official also claimed that the implementation plan would be much more detailed.
In any event, the Administration has announced its intention not to fully comply with other parts of the bill. In his signing statement, Trump explained he was going to interpret the new law in ways that would not, in his view, impinge the powers of the President:
- As part of the strategy, section 4 of the Act purports to require the President to engage in international diplomacy in order to share information and pursue policy goals specified by the Congress. Consistent with longstanding constitutional practice, my Administration will treat the relevant provisions of this section in a manner that does not interfere with the President’s exclusive constitutional authorities with respect to foreign relations, including the President’s role as the sole representative of the Nation in foreign affairs.
- Section 5 of the Act further purports to condition the President’s authority to implement parts of the strategy upon the approval of the Federal Communications Commission. My understanding is that this provision does not preclude me or future Presidents from exercising our constitutional authorities as the “sole organ” of the Nation in foreign relations and as the head of the unitary Executive Branch to ensure proper implementation of the entire strategy.
Michael Kans 