China Telecom Bid for Surveillance Evidence Moot, Says DC Circuit

Since the U.S. Court of Appeals for the D.C. Circuit upheld the FCC's revocation of China Telecom's domestic and international authorities (see 2111150025) without relying on classified evidence obtained in electronic surveillance of the Chinese telco, the company's request for disclosure of that classified evidence is moot, the appellate court said Tuesday (docket 21-5215). If the U.S. government wants to use those materials in another proceeding against China Telecom, it will have to petition a federal district court for a determination that the surveillance was legal, and the court will adjudicate whether due process requires disclosure, the appellate court ruled. Disclosing the classified evidence "would be wholly ineffectual" because the FCC revocation proceeding and appeal of it have ended, it said. The D.C. Circuit vacated the U.S. District Court order granting the federal government's petition seeking a determination the surveillance was lawful and its findings could be used by the FCC, and remanded it to the lower court with instructions to dismiss. Deciding for the D.C. Circuit were Judges Karen Henderson, Greg Katsas and Harry Edwards, with Henderson writing the nine-page decision. A China Telecom outside lawyer didn't comment. FCC Chairwoman Jessica Rosenworcel said in a statement the agency's 2021 decision to revoke China Telecom's authorization was based on national security agencies' recommendation that the company's U.S. operations "provided opportunities for increased Chinese state-sponsored cyber activities, including economic espionage and the disruption and misrouting of U.S. communications traffic." "There is no higher FCC responsibility than safeguarding our networks, and today's ruling is a strong affirmation of our authority to do so," she said.