Ericson Scorsim. Lawyer and Consultant in Communication Law, with a focus on Technologies, Media, and Telecommunications. PhD in Law from the University of São Paulo (USP). Author of the Communications Law eBook Collection.

The Brazilian government is about to define its geostrategic position on Huawei’s 5G technology. It seems the decision will be postponed till 2021, as reported in the media. In other articles, I have explained the context of this controversy between the United States and China related to 5G technology .[1] In this article, the focus is on explaining the geopolitical risks for Brazil on the subject of its own national security and its national economy. Now, 5G technology is related to the risks of interference by both the United States and China intelligence services, which aim to collect data and communications. Therefore, Brazil and Brazilians can become targets of the intelligence services of those countries.

For Brazil, the federal, state, and municipal governments, and Brazilian companies, there are geopolitical risks in relation to the United States. Currently, the global North American technology companies are shaping Brazil’s digital ecosystem and communications networks. Google, Microsoft, Amazon, YouTube, WhatsApp, Twitter, Apple have defined new forms of relationships in the digital[2] environment. However, these U.S. technology companies are subject to U.S. law and U.S. agencies. There are even systems of cooperation between these companies and the United States Department of Defense. For example, Google is required to sign a cooperation agreement with the U.S. Department of Defense regarding the installation of a submarine cable connecting the United States and Hong Kong to allow inspection of the cables.

            The central issue in relation to 5G technology relates to the ability to collect intelligence signals, which is why the United States has imposed restrictions on the Chinese company Huawei, on the grounds of risk to its national security. According to the United States, Huawei must collaborate with China’s national intelligence services, as required by China’s National Intelligence Act. For the US government, there is a risk that Huawei will supply covert telecommunications equipment, with backdoors that will allow for espionage. So some experts argue that the Huawei equipment are actually Trojan Horses, just like the gift given by Athens to the Trojan people. It turns out that inside the statue of the horse were Athenian soldiers who attacked the Trojans. That is why trojan horse became known as a trap given to the enemy.

But one of the central objectives of U.S. foreign policy is to contain China’s advance in 5G technology.

The irony is that the United States also has legislation with the capacity to force technology companies to collaborate with its national intelligence services, as well as with the Department of Defense. In addition, there is the extraordinary ability of the National Security Agency to intercept communications anywhere on the globe, as well as to conduct electronic espionage against anyone anywhere in the world. As US economist Jeffrey Sachs explains: “Ironically, though predictably, U.S. complaints partly reflect America’s own surveillance activities at home and abroad. Huawei’s Chinese equipment could make it more difficult for the U.S. government to covertly monitor it. However, illegitimate surveillance by any government should end. Independent monitoring by the United Nations (UN) to restrict these activities should become part of the global telecommunications system. In short, we should choose diplomacy and institutional safeguards, not technological warfare”.[3]

            In summary, 5G technology is directly related to the ability of governments to collect intelligence signals. This method of intelligence refers to the extraction of data, by hardware, software, Internet networks, telecommunications networks, submarine cables, satellites, mobile phones, televisions, electronic devices. The United States is able to collect intelligence signals, as the history of National Security Intelligence (NSA) shows. Moreover, for the time being, the United States is the global leader in microchip technology, essential inputs for technology in the central and peripheral areas of the 5G network. Huawei owns both central and peripheral 5G technology. The other competitors are Ericcson and Nokia. Now, the company and/or intelligence agency that is able to collect intelligence signals can also extract data, infiltrate electronic surveillance devices, analyze data, decrypt data, and store data, as well as retain and delete data. It can also modify the data flows carried over the Internet, as well as change the traffic route of the data packets. This is what the US government suspects in relation to China Telecom and China Mobile, accused of diverting the route of US communications into China. Faced with this, there is the proposal to revoke the licenses of these Chinese companies.

For the United States, China is considered an adversary country because it threatens its global leadership. Thus, Huawei is deemed a company with ties to the government of an opposing country. For Brazil, China is not an opponent, on the contrary there are good trade relations between the two countries. So, at first, there is no reason to be suspicious of Huawei. On the contrary, for decades Huawei has been the main supplier of 4G technology for telecommunications companies in Brazil.

            But there is another factor in this story not yet properly clarified. It is the context of the United States and of applying its legislation in an extraterritorial manner, with the exercise of its jurisdiction almost universallyespecially when it comes to its national intelligence services.

The current policy of the Brazilian government of automatic alignment with the current government of the United States ignores this fact, something that is detrimental to Brazilian interests. However, the Brazilian government cannot ignore this reality with potential for collateral damage to Brazil’s national economy and our national security. Brazil’s proximity with the current US government may produce positive effects for our national economy, but one cannot ignore the geopolitical risks for Brazil, its sovereignty, and its jurisdiction.

Thus, for Brazil, its government, and Brazilian companies, citizens, and institutions, there is the geopolitical risk of extraterritorial application of U.S. legislation: Leadership 5G Act (the U.S. law that sets technical standards for 5G), Build Act (Better Utilization of Investments Leading to Development Act of 2018[4]), Foreign Intelligence Surveillance Act (FISA, allows U.S. intelligence services to conduct electronic surveillance of foreign governments and authorities and businesses), National Intelligence Law (application by the National Security Agency of measures to intercept foreign nationals’ electronic communications, as well as requiring U.S. companies to provide data and metadata on users of applications, social networks, fiber optic submarine, and satellite cable network infrastructures, among others), Communications Assistance for Law Enforcement Act (CALEA – technical requirements for telecommunications manufacturers to facilitate interception of communications), Cloud Act (Clarifying Lawful Overseas Use of Data Act – authorization for U.S. authorities to access the content of private communications stored by companies[5]), Cyber Intelligence Sharing and Protection ActAgriculture Improvement Act of 2018 (incentives for Internet installation in rural areas, data collection system for crops, geospatial technology standards, etc.).[6]), National Defense Authorization Act (rules for control of arms sales as well as military training for Brazil, with provision for reporting of human rights abuses by Brazilian security forces), US Patriot Act (measures to combat terrorism), Geospatial Data Act (law dealing with the collection, processing, storage of geospatial data)[7],International Cooperation Treaty on Intelligence Sharing (Five Eyes), and Foreign Corrupt Practices Act (U.S. anti-corruption law with potential application on Brazilian[8]companies), Foreign Investment Risk Review Modernization Act of 2018, Export Control Reform Act of 2018[9], among others.

There is a list of numerous authorities of U.S. federal agencies that can act and impact Brazil’s national interests: United States Presidency, Department of Defense[10], Department of Justice[11], Department of Energy[12], National Security Agency (NSA[13]), Central Intelligence Agency (CIA[14]), FBI[15], Defense Advanced Research Projects Agency (DARPA[16]), National Geospatial-Intelligence Agency (NGA[17]), National Reconnaissance Office (NRO[18]), National Oceanic and Atmospheric Administration (NOAA[19]), Committee on Foreign Investment in the United States (CIFUS[20]), Federal Telecommunication Commission[21], Security Exchange Commission, Foreign Intelligence Court[22], Securities on Exchange Commission[23], Bureau of Economic and Business Affairs, Cyber Infrastructure (CISA), Southern Armed Forces Command (U.S South Command[24]), among others.

I also believe it is in the interest of telecommunications companies operating in Brazil to assess the geopolitical risks of the Brazilian government’s position on 5G technology.  Any wrong move by the Brazilian government may compromise the level of investments in 5G technology in the country. Likewise, companies supplying 5G technology to telecommunications companies must assess these geopolitical risks, related to Brazil’s position. Any company with global operations has a responsibility to its investors, which is why it is necessary to analyze the political risks related to the Brazilian government, the United States, and China regarding 5G technology.

In short, given its domain of technological evolution, the United States can access data outside of its territory, including for the purposes of extending its jurisdiction almost universally (via intelligence and/or other services). Thus, it is up to Brazil, grounded on its sovereignty, to adopt national self-defense measures, preventing itself from being entirely subordinated to the foreign policy of the United States to the detriment of Brazilian national interests.

Brazil has other interesting geostrategic options regarding 5G technology that go beyond the United States and China. Brazil could establish partnerships with the European Union to encourage the production of 5G technology within the Brazilian territory, after all, the main suppliers of this technology are European. Also, Brazil could partner with Asian countries for the development of technology here, having as potential partners: Japan and South Korea, among others. Finally, Brazil could become a great international leader in 5G technology if it enters partnerships with the appropriate partners and knows how to preserve national interests, with a clear position of national defense against espionage from either the United States or China. Brazil cannot be held hostage to the geostrategic interests of the United States and/or China or any other country. The defense of national sovereignty is essential, ensuring the protection of personal and non-personal data (industrial data, financial data, commercial data, data of national wealth, geospatial data, etc.), as well as the protection of critical national digital infrastructures essential to the connectivity of the country.

[1]Scorsim, Ericson. A tecnologia de 5G da Huawei nas redes de comunicações: o alvo geoestratégico da lawfare imposta pelos Estados Unidos contra a empresa e China, published on the website: www.direitodacomunicacao.com, June 8, 2020.

[2] As an example, Petrobras refused to supply fuel to two cargo ships with Iranian flags on the grounds of economic sanctions imposed by the United States against Iran through the Office of Foreign Assets Control (OFAC) and the Countering America’s Adversaries through Sanctions Act. One of the ships was carrying urea, the other maize. The companies in charge of the ships went to court in Brazil. In the end, the Brazilian Supreme Court ruled that the Iranian ships did not have their names on the U.S. Treasury Department’s “blacklist,” which lists the targets of their economic embargoes. It should be noted that the United States uses lawfare mechanisms against Iran, i.e., it uses its legislation to achieve strategic objectives similar to the results of a war.  In another case, Petrobras, accused of having violated the Foreign Corrupt Practices Act, made a deal with the U.S. Department of Justice. Under such agreement, the company was forbidden from invoking the national sovereignty clause to breach the agreement.

[3] Sachs, Jeffrey. A guerra contra a tecnologia chinesa. Valor Econômico, November 14, 2019.

[4] Law authorizing the U.S. government to finance activities of U.S. interest abroad. The U.S. Ambassador to Brazil stated the possibility of using the Build Act to finance 5G technology in Brazil, subject to the imposition of a ban on Huawei participation.

[5] For example, access by US authorities to email content, social networks, and/or applications stored on servers abroad.

[6] Risk of potential collection of Brazilian agriculture data by US federal agencies.

[7] Potential for the collection of geospatial data from the Brazilian territory by US federal agencies.

[8] The Foreign Corrupt Practices Act provides for punishment of any company that uses U.S. infrastructure (banking or communications system) to pay a bribe to public officials. And, as a historical reference, over the last decades, Brazilian companies experienced a period of ascension, performing infrastructure works all over Latin America. However, they were shot down by the Lava Jato investigations. Harvard professor Matthew Stephenson denies the possibility of geopolitical use of the FCPA by the United States. But suspicion remains about the instrumentalization of the FCPA for US geopolitical purposes.
See: Kall, Kevin, Herdy, Thiago e Amado Guilherme, Ex-diplomata revela a visão dos Estados Unidos sobre a Lava Jato e projeto de poder do PT. Época Magazine, July 8, 2019.
In addition, U.S. Democratic congressmen questioned in a letter to the Department of Justice the collaboration of U.S. authorities with Brazilian authorities in the Lava Jato investigations.

[9] The current government of President Jair Messias Bolsonaro has encouraged the installation of weapons factories in Brazil, which is why it has made legislation more flexible. Now, when it comes to US companies that will be set up here, there is the potential application of US export control and arms transfer legislation. On that matter, the National Defense Authorization Act provides for the assessment of the impact of U.S. military equipment and training for Brazil’s security forces and the risks of human rights abuses.  And also, by way of illustration, the Wassenaar Arrangement Agreeement deals with the control of the exports of so-called dual-use technologies, arms and products. The objective of the agreement is to contribute to the regional and international security and stability of the countries. The United States is part of this treaty, but Brazil is not.

[10] United States National Security Authority.

[11] Can investigate Brazilian companies accused of committing crimes under US law.

[12] Can map the energy capacity of Brazil.

[13] National Security Agency that can perform electronic surveillance and interception of electronic communications anywhere on the globe.

[14] Intelligence Agency that can promote covert actions in social networks, applications, etc.

[15] Federal crime investigation agency.

[16] Agency developing intelligence and defense products.

[17] With satellite capacity to collect images from land, sea, and airspace.

[18] Can recognize ships, aircraft, objects, surfaces, vehicles, facilities, etc..

[19] With satellite capacity to promote “scans” by images of the Brazilian territorial sea, which happened in that episode of oil spill on Brazilian beaches.

[20] Federal agency to assess foreign investments in the United States.

[21] Federal telecommunications agency.

[22] Federal Court responsible for examining requests for electronic surveillance of foreign nationals.

[23] Federal agency responsible for the supervision of securities transactions (shares traded in stock markets and other assets).

[24] A Brazilian General was appointed to the United States Armed Forces Southern Command. A recent video from the U.S. South Command attested to the subordination of the Brazilian General to the command of the United States General. The episode narrates the collaboration of Brazilian authorities in the fight against drug trafficking, together with the United States.