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Brigham Young University Prelaw Review

Keywords

DJI, Secure Network and Communications Act, Critical Infrastructure, National Security, 14th Amendment, Fifth Amendment, Administrative Procedures Act, Arbitrary and Capricious, Covered Telecommunications Equipment, China, Due Process Clause, Tik Tok

Abstract

Increasingly adversarial relationships between the United States and countries such as China, Russia, and Iran have resulted in legislative efforts to ensure the National Security of the United States by banning foreign technology firms deemed to pose a threat. Certain high profile bans, such as the ban of Huawei and potential ban of Tik Tok, have raised concerns that these bans are motivated by factors other than a legitimate national security threat. Failure to protect the rights of affected foreign firms could result in an anticompetitive, isolated U.S. market. This paper will analyze the legality of different efforts to ban foreign technology firms originating in adversarial nations from operating in the United States. DJI will be used as a model company facing multiple attempts to expel it from the United States. Current legislation created to exclude potentially subversive foreign tech firms such as the Secure Networks and Communications Act of 2019 and the Secure Equipment Act of 2021 fail to provide equal protection for foreign firms, violate due process, and often lead to arbitrary and capricious decisions. Certain revisions to these bills such as a clear definition of critical infrastructure and requirement for evidence in place of agency designations will protect the rights of foreign owned companies in the United States and ensure U.S. markets remain competitive and secure.

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