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WeChat: Federal Judge Blocks Trump Administration WeChat Ban; Govt. Offered 'Scant Little Evidence' Ban Addressed National Security Concerns

September 20, 2020 / 11:50 PM PDT / CBS San Francisco

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SAN FRANCISCO (CBS SF) -- A federal judge has granted a preliminary injunction blocking the ban on U.S. downloads of WeChat and other functions from going into force as scheduled by order of President Donald Trump on Sunday night.

Following a rare Saturday afternoon hearing in San Francisco, U.S. Magistrate Judge Laurel Beeler entered an order early Sunday granting the preliminary injunction in a motion brought to the court by a WeChat user group and six WeChat users.

In issuing the preliminary injunction, Beeler wrote that the plaintiffs had shown "serious questions" in their claim that the executive order threatens the users' First Amendment rights.

"The plaintiffs' evidence reflects that WeChat is effectively the only means of communication for many in the community, not only because China bans other apps, but also because Chinese speakers with limited English proficiency have no options other than WeChat," Beeler wrote.

Nor does the order escape First Amendment scrutiny under an easier standard known as intermediate scrutiny, the judge said, because the ban on WeChat does not provide enough evidence that it is narrowly tailored to resolve the US government's national security concerns with respect to the app.

"And, as the plaintiffs point out," Beeler wrote, "there are obvious alternatives to a complete ban, such as barring WeChat from government devices, as Australia has done, or taking other steps to address data security."

In comments during the Saturday hearing, Beeler had expressed her concern that the order was a burden on protected speech of WeChat users in the United States.

While the government had identified significant national security interests for its action, the order was not "narrowly tailored" to protecting those interests, Beeler said.

"Certainly the government's overarching national-security interest is significant," the judge wrote. "But on this
record — while the government has established that China's activities raise significant national security concerns — it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns."

"Also, on this record, the regulation — which eliminates a channel of communication without any apparent substitutes — burdens substantially more speech than is necessary to further the government's significant interest."

Beeler continued: "The court grants the plaintiffs' motion for a nationwide injunction against the implementation of Executive Order 13,943 (limited to the Secretary of Commerce's Identification of Prohibited Transactions 1 through 6). Nothing in this order prevents the Secretary from reconsidering his decisions or from identifying 'any other transaction that is related to WeChat by any person, or with respect to any property, subject to the jurisdiction of the United States, with Tencent Holdings Ltd., or any subsidiary of that entity, as may be identified at a future date under the authority delegated under Executive Order 13943.'"

WeChat began in China as a messaging app and over the years has added additional functionality including calling, video conferencing, and in-app payments. Because of the many functions integrated within the app, plaintiffs describe it as a "super-app".

WeChat is estimated to have more than a billion users worldwide, including 19 million in the United States, according to plaintiffs complaint.

The government contends the app is used by the Chinese government for surveillance and data collection within the United States and that the order was a justified exercise of the president's national security powers against a "foreign adversary whose hostile acts are undisputed, and whose aspirations for global dominance are undisputed."

The order, as subsequently interpreted by the U.S. Department of Commerce, imposed a number of limitations and prohibitions on WeChat and third parties, including prohibiting new downloads of the WeChat app, stopping the transfer of funds out of the United States, and forbidding the providing of technical services to WeChat by third parties.

The commerce department's interpretation limited the Order to business-to-business transactions not to "WeChat users who use the app for personal communications."

Much of the hearing focused on whether the order amounted to a shutdown of the app.

The plaintiffs contended that by prohibiting third-party services such as web hosting and internet transit services, WeChat will be effectively be shut down, depriving millions of Chinese-speaking Americans of the primary platform they can use to communicate and interact with friends and family in China.

The government disputed that the order amounted to a shutdown, but conceded that the order would likely, over time, to lead to a "deterioration of functionality."

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