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Protecting Our Nation's Back Doors: Improving Patent Policy for National Security
Financial data displayed on a smartphone. (Getty Images)
Financial data displayed on a smartphone. (Getty Images)

Protecting Our Nation's Back Doors: Improving Patent Policy for National Security

Kristen Osenga

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In 2020, US officials announced that Huawei Technologies had the ability to secretly access mobile phone networks through “back doors” originally designed and intended for use by law enforcement agencies.1 Although all telecommunications companies are required to provide law enforcement with this access, they must also ensure that they themselves lack this access. Huawei, however, built its equipment so as to allow itself access and thus have the ability to obtain personal and sensitive information from anyone worldwide who uses its equipment. That itself is troubling, but what is of even greater concern is that a number of US economic and military partners, including the UK and Germany, have permitted their countries’ 5G networks to be built out using Huawei equipment. This is therefore a matter not only of cybersecurity but also of national security.

Concerns of this type will likely intensify as standardized technology spreads into even more areas. Technology standards have already been incorporated in a number of important industries, including telecommunications, artificial intelligence, biotechnology, and more. Our future contains the internet of things (IoT), 5G and beyond, autonomous driving cars, biofuels, personalized medicine, agrotechnology, and more. While we appreciate the impact these technologies have and will continue to have on our daily lives, we sometimes fail to recognize that these standardized technologies constitute key components of our national security. From military applications—surveillance and reconnaissance, command and control, and logistics—to healthcare and to food and other supply chains, the safety of the US and its citizens relies on technologies and standards. But the same technologies that protect us also have the potential to expose the US to a wide range of vulnerabilities.

One way to defend against these vulnerabilities is to encourage US companies to compete and lead in these important technology areas, some of which are subject to standardization, and US companies must be active participants in standards development organizations (SDOs)2 by contributing technology and being involved in the decision-making. To control the future of these technologies requires controlling the standards. China, which knows this, has therefore sought to place Chinese nationals into leadership positions within SDOs as well as increase both the number of Chinese companies actively participating in SDOs and the level of these companies’ technological contributions to SDOs.[ii] The US, on the other hand, has recently adopted laws and policies that render investing in these technology areas and participating in SDOs unattractive. While we certainly do not want a country whose government actively dictates how companies within that country operate, we also need to be wary of a government that opts for policies that force companies to stop engaging in what should be desirable behavior.

National security requires US leadership in important technological fields. US leadership in standardization and in these fields requires laws and policies that incentivize companies to invest time and money in research and development as well as in SDO participation. If US companies choose not to develop innovative technology or actively participate in SDOs, standards will be set and controlled by others, leaving our technological “back doors” open to countries who wish to do us harm. Therefore, it is time to adopt laws and public policy that recognize the importance of US leadership in critical areas of technology and in SDOs by encouraging investment in research, development, and standardization. Our national security depends on it.

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1 See, e.g., Bojan Pancevski, “U.S. Officials Say Huawei Can Covertly Access Telecom Networks,” Wall Street Journal, February 12, 2020, https://www.wsj.com/articles/u-s-officials-say-huawei-can-covertly-access-telecom-networks-11581452256.
2 Daniel R. Russel and Blake H. Berger, Stacking the Deck: China’s Influence in International Technology Standard Setting, (New York: Asia Society Policy Institute, 2021), 9, https://asiasociety.org/sites/default/files/2021-11/ASPI_StacktheDeckreport_final.pdf.

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