Insta-Analysis: Hikvision’s appeal of FCC ban could test DoD’s disclosures

Feb. 16, 2023
Hikvision filed a petition for judicial review Monday with the U.S. Court of Appeals in Washington D.C. The lawsuit was served to U.S. Attorney General Merrick Garland and FCC General Counsel P. Michele Ellison.

Embattled Hikvision USA has sued the Federal Communications Commission (FCC) and the U.S. government, seeking to overturn the FCC’s security ban on the Chinese company’s future equipment authorizations.

Hikvision filed a petition for judicial review Monday with the U.S. Court of Appeals in Washington D.C. The lawsuit was served on U.S. Attorney General Merrick Garland and FCC General Counsel P. Michele Ellison.

Hikvision’s filing is relatively short on specific legal arguments, but it could pit Hikvision’s desire for information underlying the ban by the FCC against the government’s interest in protecting sensitive information, says legal expert Timothy Pastore, Esq., a partner and Vice-Chair of Litigation for Montgomery McCracken Walker & Rhoads LLP.

“The ban of this company and its product is, in part, rooted in national security concerns emanating from not only the FCC but also the Department of Defense. Sometimes policy on national security matters flows from information that is highly sensitive and protected into what is, in effect, civil litigation,” says Pastore, a former member of the U.S. military and former federal prosecutor.

“The petitioner may claim the FCC lacks a basis for this ruling, and the FCC’s ability to fully explain the basis for it could be limited by the sensitivity of the underlying information that prompted the ban. The FCC might not even have some of this information. Perhaps that information is generally available, as it is not intended to be in public sphere.”

Hikvision is asking the court to overturn the FCC’s ban on new equipment authorizations, arguing the FCC’s order – published in the U.S. Federal Registry on Feb. 6 – is unconstitutional and exceeds the agency’s jurisdiction and statutory authority.

Hikvision also alleges the order violates the “Equal Protection and “Bill of Attainder” clauses of the Constitution, as well as the Communications Act and Administrative Procedure Act. The order is, “arbitrary and capricious, an abuse of discretion, not supported by substantial evidence, and otherwise contrary to law,” the Hikvision argues.

The FCC declined to comment on the filing Thursday, and U.S. Attorney’s Office did not immediately respond to a request for comment.

Last November, the FCC had voted to ban equipment authorizations for five entities, which included Hikvision and Dahua, for national security reasons. This effectively banned the sale of future products in the U.S.

The FCC, in its order, rejected many of Hikvision’s objections, saying the Commission has clear legal authority under the Secure Equipment Act to modify equipment authorizations and its actions were not unconstitutional.

Last November, Hikvision said in a statement that its products did not threaten U.S. security.

“This decision by the FCC will do nothing to protect U.S. national security but will do a great deal to make it more harmful and more expensive for U.S. small businesses, local authorities, school districts and individual consumers to protect themselves, their homes, businesses and property,” the company said.

But Pastore notes the corporate disclosure statement included in the filing shows China Electronics Technology HIK Group Co. is “an indirectly state-owned enterprise of the People’s Republic of China” and is Hikvision’s largest shareholder at 36%.

“This required corporate disclosure does not bar the petition, but it is not helpful for Hikvision because it feeds into the FCC’s underlying basis for banning this company,” Pastore says. “It supports the general conclusion that the company is an arm of the government of China.”

The filing also comes at a time when the U.S. has heightened concerns about surveillance and intelligence gathering by China, such as the surveillance balloon that was shot down by the U.S. earlier this month off the coast of South Carolina.

Hikvision likely didn’t play any role in that incident, “but the claim comes when it’s a hot-button issue for our country,” Pastore notes. “There is an undercurrent of suspicion that China is interested in advancing its intelligence gathering techniques against U.S., and that’s the underlying issue this law is designed to protect against.”

John Dobberstein is managing editor of and oversees all content creation for the website. Dobberstein continues a 34-year decorated journalism career that has included stops at a variety of newspapers and B2B magazines.