WeChat Users Fighting To Block Trump's Executive Order Banning The App In The US
While the TikTok part of Trump's original August Executive Order got all the attention, we pointed out that it was fairly notable that he issued a nearly identical order to also effectively ban WeChat by blocking any transactions related to WeChat. While WeChat is not that well known or widely used in the US, it is basically central to the Chinese internet, and, as such, is a key part of how many Chinese Americans stay in touch with relatives, friends, and colleagues back in China. So it was perhaps not that surprising that a group of WeChat users in the US quickly sued to try to block the order:
Neither the Executive Order itself nor the White House provided concreteevidence to support the contention that using WeChat in the United States compromisesnational security. Notably, no other nation has implemented a comprehensive WeChat banon the basis of any like-finding that WeChat is a threat to national security. TheExecutive Order was, however, issued in the midst of the 2020 election cycle, during atime when President Trump has made numerous anti-Chinese statements that havecontributed to and incited racial animus against persons of Chinese descent-all outsideof the national security context.
In a stark violation of the First Amendment, the Executive Order targets and silences WeChat users, the overwhelming majority of whom are members of the Chineseand Chinese-speaking communities. It regulates constitutionally protected speech,expression, and association and is not narrowly tailored to restrict only that speech whichpresents national security risks to the United States. Accordingly, it is unconstitutionallyoverbroad. Indeed, banning the use of WeChat in the United States has the effect offoreclosing all meaningful access to social media for members of the Chinese-speakingcommunity, such as Plaintiffs, who rely on it to communicate and interact with others likethemselves. The ban on WeChat, because it substantially burdens the free exercise ofreligion, also violates the Religious Freedom Restoration Act.
The Executive Order runs afoul of the Fifth Amendment's Due ProcessClause by failing to provide notice of the specific conduct that is prohibited; because ofthis uncertainty, WeChat users in the United States are justifiably fearful of using WeChatin any way and for any purpose-and also of losing access to WeChat. Since theExecutive Order, numerous users, including Plaintiffs, have scrambled to seek alternativeswithout success. They are now afraid that by merely communicating with their families,they may violate the law and face sanctions.
As the complaint highlights, just the issuing of the Executive Order has created panic among people who rely on it to communicate with people in China:
The U.S. WeChat Users Alliance (USWUA"), Chihuo, Inc., Brent Coulter,Fangyi Duan, Jinneng Bao, Elaine Peng, and Xiao Zhang (collectively, Plaintiffs"), bringthis suit to challenge the Executive Order, which eviscerates an irreplaceable culturalbridge that connects Plaintiffs to family members, friends, business partners, customers,religious community members, and other individuals with common interests within theChinese diaspora, located both in and outside of the United States. The Executive Orderhas already harmed Plaintiffs, who are plagued with fear for the loss of their belovedconnections, whether it be with friends, family, community, customers, aid recipients ofthe charities they run, or even strangers whose ideas enrich their lives. They have beenforced to divert time, energy, and money to seek alternative communication platforms,download and save irreplaceable digital histories, plan for business closures, find othersources of information, and try to obtain alternative contact information for those fromwhom they will soon be separated. Even if they succeed to some extent in their mitigationefforts, Plaintiffs will never be able to replace the full spectrum of the social interactivitythat WeChat offers, nor will they be able to find any social networking platform withanything close to the same level of participation by the global Chinese diaspora-this isbecause WeChat's network effects, generated by its 1 billion-plus daily users, isirreplaceable
The plaintiffs have also filed for a preliminary injunction against the Executive Order (which is set to go into effect on Sunday). There's a hearing on Thursday. So far, the plaintiffs have failed to get expedited discovery, as the judge notes that pretty much everything so far relies clearly on public information, and there's no need for discovery at this point -- not to mention there would be a pretty big argument over what things are actually subject to discovery anyway.
The government's opposition to the injunction request is... weird? It basically starts out with a big attack on China that's just sort of priming the pump and hand-waving around the idea that if China is bad then it's self-evident that any app that comes out of China must also be bad. This part of the argument focuses on... companies that are not Tencent/WeChat, but instead does the fear mongering about Huawei and ZTE that (we've noted many times) has never presented any actual evidence of bad behavior by those companies. Also, Huawei and ZTE are not... Tencent.
So then the DOJ just points to a random Australian think tank white paper that says Tencent/WeChat is also bad. They cite a few other such reports, but the "bad" seems to be that China heavily censors WeChat and... duh? But how does that mean it's dangerous in the US and should be banned? Incredibly -- given the frequency with which the President himself has retweeted conspiracy theories pushed by Russian troll accounts -- the DOJ actually argues that because some disinformation is found on WeChat, that's reason enough to ban it:
The Report also observedthat the WeChat app is a key tool for China's disinformation campaigns, citing as one exampleAustralia's May 2019 election, in which fake news on WeChat was such a problem thatAustralia's Labor Party contacted WeChat owner Tencent to express frustration about postsspreading disinformation." Id. at 406-07. The Report cautioned that use of [WeChat] hadspread beyond the Chinese Australian community, with about 3 million Australians usingWeChat by 2017," id., and that almost the entire Mandarin-speaking community in Australia. . . used WeChat," allowing Beijing [to] promote particular issues [as] a way of controllingpublic debate.'"
I find it pretty fucking ironic that at the same time our government is using claims of "fake news" on a social media platform as an excuse to ban it, it is also trying to force American social media companies to no longer be able to moderate "fake news" and foreign propaganda.
Where the government may have more success is by arguing that the claims are "not ripe" because the executive order hasn't been implemented yet. But, that's just kicking the can down the road. Because once it is implemented, the same basic claims will remain. It does argue that the 1st Amendment claim will fail because its content neutral. That is, the DOJ is saying "we're not targeting specific speech, we're just banning an app used for speech.... that happens to be used by lots of Chinese speaking people." I think that's... pretty weak. That's "we're not blocking the printing of your magazine, just ordering the destruction of your printing presses, which might be used to print any magazine." That's not allowed under the 1st Amendment, and it shouldn't be allowed under this order.
Anyway, we should get a ruling at least on the preliminary injunction relatively quickly (given that it's slated to go into effect on Sunday). I hope the court does grant the injunction, but I'd be surprised if it does. It seems much more likely to punt based on ripeness for now. However, this case (unlike the TikTok cases, which may not matter if a deal is reached) could go on for quite a while, and could be pretty damn important in determining if the White House can just up and ban a foreign software application.