The Italian Presidency of the Council sets the conditions to include Huawei’s technology in the Italian 5G network and might ease the overcoming tensions between the USA and China by Andrea Monti

The Prime Ministerial Decree of August 7, 2020, allows TIM (the former Italian telco monopolist) to use Huawei’s 5G technology, having identified adequate measures to prevent the risks of using Chinese equipment for Italy’s new generation network. This news follows, and contradicts, the exclusion of Huawei from the tender to provide TIM with the same 5G devices because of the need for “diversification of partners” (a requirement lately imposed by the Conte-Huawei Decree). Originally published in Italian by Formiche.net

The national security prevention model

The Conte-Huawei Decree adopts a model fully delegated to the private operators. Its provisions, in fact, concern only TIM and not Huawei (not even, at least, through its Italian branch).

The core of the entire model is the duty of reporting the location of the antennas and the other pieces of equipment. The government, in other words, must know what TIM is going to install, where and when they are modified or replaced. In this regard, TIM must abide to  specific duties:

• it has to carry out a risk assessment every time the characteristics of the types of equipment change,
• it has to define security-oriented supplier accreditation criteria, which extend as far as production controls.
• it can perform these assessments, according to article 1, paragraph I, letter e),  also based on documentation issued by the supplier or certification bodies, without the need to perform physical check (i.e. with factory inspections) the truthfulness of the statements,
• it has the option – and not the duty, since letter h) of paragraph I uses the verb “can” – to perform checks on hardware projects and source codes of the types of equipment used,
• it must not disclose to anybody (including foreign States) information about the use of this technology.

In operational terms, the pivot around which TIM activity revolves is its security department. According to the first paragraph of article 1 of the Decree, this corporate body must be “involved” in the critical decisional processes. The provision, though, does not clarify whether or not the involvement of the security department implies any capability to influence the final decisions. Furthermore – paragraph I letter d) – the security function must participate in the design and management of the security about the 5g components according to the concept of suppliers’ diversification.

In synthesis,  the remediation that the Italian government deems as necessary to protect national security when using Huawei’s technology, in fact, fully delegate to a private operator the control over the foreign-made pieces of equipment.

The choice of the Prime Minister is another step towards the creation of a “technological public order”, a public policy concept based on the acknowledgement by the government of the inescapable necessity to share the management of security with private subjects.

The International Consequences of the Conte-Huawei Decree

The Conte-Huawei Decree effects go well beyond the protection of national interests.

Firstly, if the requirements imposed on TIM S.p.a. allow, according to the Presidency’s experts, the safe use of Chinese technology, the USA and UK-claimed national security risks are waived. Consequently, nothing would prohibit to adopt the Italian approach at EU and international level, thus putting an end to at least one of the battles between the USA and China during Cold War II.

Secondly, the possibility of a legal battle promoted by Huawei against the USA and England becomes an option. Huawei might seek the USA and the UK for the damages caused by the allegations about its dangerousness, later waived by the Italian choice prescribing reasonable containment measures. It will, therefore, be interesting to see how the Trump and Johnson administrations will assess the choices of their Italian counterpart, and how they will overcome the embarrassment of having declared Huawei’s “intrinsic dangerousness” in the face of the pragmatic solution adopted by the Italian government that instead makes them entirely usable.

Finally, it will also be interesting to see whether, since the US has long carried out intelligence actions towards EU countries, the Italian government will impose similar requirements on US suppliers of technologies used in critical areas.

Conclusions

The Conte-Huawei Decree adopts a questionable public policy choice: delegating national security checks in full to a private subject but has the advantage of abandoning a paralysing precautionary principle in favour of a pragmatic choice based on in vivo experimentation.

Just flat out, the success of the Conte model depends on TIM complying with the requirements imposed by the Decree. In this regard, it would have been better that in its core component — controls on the design and production of Huawei pieces of equipment— the government had used the verb “must” instead of “can”.