The U.S. War Against Huawei Moves Into Academia

(Bloomberg Opinion) -- The continuing war between the U.S. and Huawei Technologies Co. has moved into the world of ideas. The Institute of Electrical and Electronics Engineers announced this week that scientists affiliated with Huawei will no longer be permitted to serve as referees or editors for papers published in the private organization’s 200-odd journals.

This is a big deal. Journal referees review submitted articles long before they see the light of day and offer comments and recommendations, often on whether or not to publish. They are exposed to work the rest of the world has yet to see. Referee comments have long been a key part of the exchange of ideas. Among serious academics, publication in a refereed journal is evidence that an idea has survived rigorous scrutiny.

Huawei employs about 188,000 people around the world, and a fair minority are scientists and engineers. Now, due to U.S. restrictions on the company, they can’t have access to papers submitted to IEEE’s many publications until they’re published. No reviewing, no advising, no editing, no anything — all to keep Huawei from gaining access to technological advances ahead of everybody else.

In explaining its decision, IEEE cited legal concerns arising after the U.S. Commerce Department’s Bureau of Industry and Security earlier this month added Huawei and some 68 affiliates to the list of entities to whom exports are restricted. A special application is required, and Huawei has been labeled with the dreaded “presumption of denial.”

The administration of President Donald Trump has been pursuing an anti-Huawei campaign for some while now, and at this point China has few weapons in its arsenal to protect the company from the U.S. assault.  But even if the administration’s charges are true — and the company heatedly denies that it in effect spies for the Chinese government — the effort to restrict the flow of technology has a 1980s (or 1960s) feel to it.

Consider that last year, with little fanfare, the administration and Congress decided to cancel the Militarily Critical Technologies List, a Cold War relic maintained by the Department of Defense. The MCTL, as it was known, once placed significant restrictions on the transfer of scientific know-how abroad, but had long been allowed to languish and was no longer affecting decisions to grant export licenses. Nevertheless, the cancellation was an implicit admission that in a connected world, it’s tough to prevent technology transfer, even when national security is involved. And as far as I’ve been able to determine, the commentariat raised nary a peep.

Similarly, in the case of Huawei, nobody in tech imagines that the company can entirely be prevented from participating in the digital universe. Yes, there will be serious effects, at least for now. The BIS listing will keep the company from gaining access to certain services for Google’s Android and from chips made by Intel, Qualcomm and other leading manufacturers. Yet data will continue to flow through Huawei devices. U.S. pressure may be able to keep Huawei out of much of the 5G network, at least for the moment, but there’s no way to avoid using the company’s burgeoning network of undersea cables.

Besides, even if you believe in the importance of keeping Huawei away from certain technologies, there’s less reason to defend keeping the company’s researchers from getting an early look at articles proposed for publication in the major journals in their fields. It’s hard to imagine what enduring advantage China or any other power might derive from getting a peek at research articles a few months in advance. The IEEE seems to believe that, under the BIS rules, it has no choice. If that’s so, there’s something terribly wrong with the rules.

The historian Audra J. Wolfe points out in her engrossing 2018 book, “Freedom’s Laboratory: The Cold War Struggle for the Soul of Science,” that during the years after World War II, Soviet scientists were often permitted to attend Western scientific conferences (provided that they could get permission from their own suspicious government). But in 1950 Congress adopted the McCarran Act, which essentially made it impossible for those with Communist connections to travel to the U.S. The act, writes Wolfe, “had an immediate and chilling effect on scientific exchange, by some estimates blocking the entry of half of foreign scientists who sought to enter the country.”

The effect of today’s restrictions on scientific exchange is likely to be significantly smaller. For one thing, the U.S. long ago yielded its near-monopoly on scientific advancement. In biomedical journals, for example, the share of articles by U.S.-based authors has been steadily declining. A 2018 survey found a significant drop during the 21st century in applications from students abroad seeking to study physics in the top U.S. programs.

For another, as IEEE points out, the BIS restrictions do not seem to prohibit Huawei employees from attending conferences. In other words, they may not be able to referee unpublished papers, but they can still listen as other scientists present that very research. In this sense, at least, the BIS restrictions do not go as far as the Cold War rules. Wolfe recounts tales of U.S. researchers not permitted even to attend international conferences in the 1950s simply because scientists from the Soviet Union or the People’s Republic of China were expected to be present. It’s hard to imagine that the bans hurt Communist science more than American science.

Nevertheless, the fact that the anti-Huawei rules are less intrusive than the Cold War rules does not mean there’s no problem. Efforts to restrict the flow of technology are probably inevitable. Efforts to restrict the free flow of scientific debate, however, were a bad idea during the Cold War and are a bad idea now. Let’s hope someone from the administration will give IEEE a call to say this isn’t what the BIS listing means.

Huawei claims that the listing could hit the bottom lines of some 1,200 U.S. suppliers.

To contact the editor responsible for this story: Michael Newman at mnewman43@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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