WeChat Users Fighting To Block Trump's Executive Order Banning The App In The US

from the it-would-be-an-issue dept

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 concrete evidence to support the contention that using WeChat in the United States compromises national security. Notably, no other nation has implemented a comprehensive WeChat ban on the basis of any like-finding that WeChat is a threat to national security. The Executive Order was, however, issued in the midst of the 2020 election cycle, during a time when President Trump has made numerous anti-Chinese statements that have contributed to and incited racial animus against persons of Chinese descent—all outside of 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 Chinese and Chinese-speaking communities. It regulates constitutionally protected speech, expression, and association and is not narrowly tailored to restrict only that speech which presents national security risks to the United States. Accordingly, it is unconstitutionally overbroad. Indeed, banning the use of WeChat in the United States has the effect of foreclosing all meaningful access to social media for members of the Chinese-speaking community, such as Plaintiffs, who rely on it to communicate and interact with others like themselves. The ban on WeChat, because it substantially burdens the free exercise of religion, also violates the Religious Freedom Restoration Act.

The Executive Order runs afoul of the Fifth Amendment’s Due Process Clause by failing to provide notice of the specific conduct that is prohibited; because of this uncertainty, WeChat users in the United States are justifiably fearful of using WeChat in any way and for any purpose—and also of losing access to WeChat. Since the Executive Order, numerous users, including Plaintiffs, have scrambled to seek alternatives without 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”), bring this suit to challenge the Executive Order, which eviscerates an irreplaceable cultural bridge that connects Plaintiffs to family members, friends, business partners, customers, religious community members, and other individuals with common interests within the Chinese diaspora, located both in and outside of the United States. The Executive Order has already harmed Plaintiffs, who are plagued with fear for the loss of their beloved connections, whether it be with friends, family, community, customers, aid recipients of the charities they run, or even strangers whose ideas enrich their lives. They have been forced to divert time, energy, and money to seek alternative communication platforms, download and save irreplaceable digital histories, plan for business closures, find other sources of information, and try to obtain alternative contact information for those from whom they will soon be separated. Even if they succeed to some extent in their mitigation efforts, Plaintiffs will never be able to replace the full spectrum of the social interactivity that WeChat offers, nor will they be able to find any social networking platform with anything close to the same level of participation by the global Chinese diaspora—this is because WeChat’s network effects, generated by its 1 billion-plus daily users, is irreplaceable

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 observed that the WeChat app is a key tool for China’s disinformation campaigns, citing as one example Australia’s May 2019 election, in which “fake news on WeChat was such a problem that Australia’s Labor Party contacted WeChat owner Tencent to express frustration about posts spreading disinformation.” Id. at 406-07. The Report cautioned that “use of [WeChat] had spread beyond the Chinese Australian community, with about 3 million Australians using WeChat 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 controlling public 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.

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Filed Under: 1st amendment, china, donald trump, executive order, free speech, users
Companies: tencent, wechat


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  • identicon
    Kitsune106, 17 Sep 2020 @ 2:13pm

    Hmmmm

    can we do a petition to have Fox News banned, or infowars? as it also does information..... teh silver colligate as an example.....

    reply to this | link to this | view in chronology ]

  • icon
    Mark G. (profile), 17 Sep 2020 @ 2:31pm

    I'm pretty skeptical of this lawsuit. The White House doesn't have a coherent policy on China, but it goes too far to say that banning WeChat is a First Amendment violation.

    WeChat is one tool to communicate among many, many others. This seems more like a city closing a road to a church. Just because that road has a church on it doesn't mean the road closure violate the rights to practice religion. In the same way, banning a specific messaging app isn't a ban on speech. You may have to use a different app, but the people who hold remote religious services on WeChat (as cited in the complaint in this lawsuit) can still do so on Zoom/Skype/Google Meet/etc. The ban isn't focused on specific content, but on a tool that (allegedly) has national security problems.

    Put another way, if the government bans a type of ink commonly used by newspapers, claiming it is poisonous if ingested, that doesn't necessarily mean the government is limiting "the press." It could just mean the ink is toxic. And if a newspaper sued the government rather than find a new ink to use, I think they would have a very, very hard time winning its lawsuit.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Sep 2020 @ 3:05pm

      Re:

      You are missing the problem, when the only road into a place is shut, you isolated in, or from that place. With China, it is effectively WeChat or nothing to keep in touch with people in China, due to the great firewall.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Sep 2020 @ 7:21pm

        Re: Re:

        The US, or any other country, is under no obligation to allow CCP spy programs like WeChat just because China bans all other messaging programs.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Sep 2020 @ 3:13am

          Re: Re: Re:

          As opposed to allowing Facebook to spy on everyone, via the code behind button that appears on many webpages. If other countries apply the same logic us corporations are impacted, and the web becomes balkanised. WeChat only affects those who choose to use it, and they are well aware of the risks.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 18 Sep 2020 @ 6:10am

          Re: Re: Re:

          "The US, or any other country, is under no obligation to allow CCP spy programs like WeChat just because China bans all other messaging programs."

          ...and unless someone can show that WeChat is a "spy" program you've just delivered the clinching argument that governments are justified in banning any and every app which enables party A to communicate with party B.

          The logical analogy is that the government tries to use the argument that cars can enable criminals to, in this specific case, ban a single model of automobile. Leaving the precedent that every car can be similarly banned, for the same reason.

          But hey, tell me again how the US is a "free" country if the argument that "people can use tool X to communicate what the government would not like communicated" as the end-all argument for banning communication tools?

          If you think it's going to stop with a ban on WeChat when the argument in fact covers every online communications tool then I have a bridge to sell to you. Cheap.

          reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 18 Sep 2020 @ 6:21am

      Re:

      "The White House doesn't have a coherent policy on China, but it goes too far to say that banning WeChat is a First Amendment violation."

      I'm more concerned with the precedent formed. WeChat is in itself a very simple piece of code, practical analogues of which can be found in ANY of the many, many other communication tools you refer to.
      As the "tool" in question is basically just code - information - then what the XO actually says is that it prohibits american citizens from partaking in information.

      In summary Trump just reclassified computer code as something US citizens are prohibited from receiving. Depending on how this is interpreted I fail to see how it can't be a form of constitutional violation or other. Especially so given that the WeChat source code is Open Source.

      "Put another way, if the government bans a type of ink commonly used by newspapers, claiming it is poisonous if ingested..."

      That's not the equivalent here. The equivalent here is that the government is banning the text from those newspapers, because the information contained in those texts - publicly and globally available - enables behavior the government does not like.

      "And if a newspaper sued the government rather than find a new ink to use, I think they would have a very, very hard time winning its lawsuit."

      False equivalence. The only thing "toxic" in this case would be a single 9-12 digit ip address inserted into an open-source chat client leading to a server owned and operated by a company not in favor with the US government atm. And even that's stretching it since all it does is that it allows an american citizen to speak with a citizen in China.

      If you see no serious issues with this piece of soviet-era USSR legislation then I have to wonder which nation you grew up in because it certainly isn't the US.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 18 Sep 2020 @ 6:38am

        Re: Re:

        ...as for "constitutional" concerns I'd like to point out that banning a social forum or chat without very clear definitions would likely also run afoul of the right of peaceful assembly.

        You'll have a hard time convincing the supreme court that open source computer code is somehow not protected speech. In fact there's ample precedent on how SCOTUS moves in such cases.

        reply to this | link to this | view in chronology ]

  • identicon
    Peter, 17 Sep 2020 @ 7:30pm

    ASPI

    As an Australian, I'll just quickly note that the DOJ didn't even get the name of the ASPI right, calling them the Australian Strategic Policy Initiative, rather than the Australian Strategic Policy INSTITUTE.

    So they've obviously just quickly googled for any paper that fits their narrative and thrown it in their submission. Can't say I'm surprised at this point.

    reply to this | link to this | view in chronology ]

  • icon
    Anuradha (profile), 18 Sep 2020 @ 12:54am

    Anu

    I read your article

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2020 @ 6:08am

    Has anyone said just how they plan on putting this ban in effect?

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 18 Sep 2020 @ 6:29am

      Re:

      "Has anyone said just how they plan on putting this ban in effect?"

      Well, WeChat uses Open source extensively so for a start they'll have to ban any and all open source repositories, programming classes in college, and start and extensive anti-espionage project to isolate and contain every US programmer in possession of chat client source code.

      Any attempt to enforce this ban will fail. Trump might as well have written an XO that henceforth every american is banned from breathing air which has at some point been in China or from learning Mandarin.

      Either the people behind this legislation are so inept they unironically emulated King Cnut, ordering the tides to stop - or they know what it means and can now attempt to enforce it in which case the legislation can be interpreted to accomplish almost anything as long as it has to do with shutting down any company operating a chat service or, for that matter, owning server hardware.

      It's either utter malice or utter ineptitude. My guess so far is on the latter - which isn't saying idiots can't also be malicious.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Sep 2020 @ 8:42am

        Re: Re:

        Agreed, it seems to be an empty gesture. It will get accolades from the devout followers while not requiring any real work. All they are banning is the distribution of an app? LOL

        reply to this | link to this | view in chronology ]

  • identicon
    Adam Gordon, 18 Sep 2020 @ 1:03pm

    Reply to a couple of posts above

    The problem is that the open web is already dead, and more balkanization is necessary to reopen it, to avoid the network effects that encourage walled gardens. Those just dismissing this as "Wag the Dog" misses the fact that the coming decades will require a decoupling from China, and to a degree, global trade. In general, any tech company beholden to any government is a problem, but unfortunately, that horse is already out of the barn. Between monopolies & government interference, it can be safely said that not only is the "open: Internet is failure, but so is the closed one. It's interesting to see, at least in the wild, albeit slight, disengagement from social media, etc., and more reliance on a few entertainment options, like Netflix. In 10 years, the Internet will just be a form of what cable TV used to be.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 21 Sep 2020 @ 12:55am

      Re: Reply to a couple of posts above

      "Those just dismissing this as "Wag the Dog" misses the fact that the coming decades will require a decoupling from China, and to a degree, global trade."

      That ship has sailed. If the US decouples itself from the umbilical cord of chinese manufacturing today the cost is a total collapse of current US industry and banking. You want the US to go full Great Depression again? Because this is how you get there, when for at least one full generation the prices of everything with a microchip in it suddenly costs ten times as much and taxes skyrocket to fund the attempt to bring US manufacturing bach home again.

      "Between monopolies & government interference, it can be safely said that not only is the "open: Internet is failure, but so is the closed one."

      Nope. The open internet lives and thrives in most of the world. And will continue to do so until the US decides to go full China. Even in the US the most you can say is that shady monopolists are gouging their customer base for mediocre broadband.

      "In 10 years, the Internet will just be a form of what cable TV used to be."

      This has been predicted by people who don't know how electronic communication works every year since the DARPAnet took off. It's less likely now than ever and even in China that shit hasn't happened. So unless roll communications technology all the way back down to where it was in the 60's and go full Orwellian Dystopia Dictatorship on regulating technology and education, That just isn't happening.

      And finally what you started with;

      "...more balkanization is necessary to reopen it, to avoid the network effects that encourage walled gardens."

      Ah, Stalin's old line about how in order to be free, actual freedom was unaffordable?
      I see, I see. "war is peace, freedom is slavery" eh? And to open the internet we first have to really close it down?

      reply to this | link to this | view in chronology ]


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