Ninth Circuit Rejects Request for Immediate WeChat Ban

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Ninth Circuit Rejects Request for Immediate WeChat Ban
By Sarah Thomas

The Ninth Circuit Court of Appeals has rejected a request by the Trump Administration to immediately ban Chinese-owned WeChat from smartphone app stores.^[1] This request came on an appeal from the District Court for the Northern District of California, where Magistrate Judge Laurel Beeler had also rejected the request.^[2] In September, Judge Beeler placed a hold on the Commerce Department’s order to remove WeChat from smartphone app stores and ban all U.S. transactions with WeChat.^[3]

In denying the request, the Ninth Circuit Court of Appeals reasoned that the government had not demonstrated that it would suffer “imminent, irreparable injury” while its appeal is pending.^[4] In the District Court’s order, Judge Beeler writes that the Plaintiffs met the standard for a preliminary injunction as they “raised ‘serious questions going to the merits’ of their First Amendment claims.”^[5] The WeChat users argued the government sought “to implement an unprecedented ban of an entire medium of communication” and then only offered “speculation” of harms “without any evidence or examples involving Americans’ use of WeChat.”^[6] Plaintiffs are U.S. users of WeChat calling themselves the “WeChat Alliance.”^[7]The group is not officially connected to WeChat.^[8]

In its reasoning for the request, the Department of Justice cited national security concerns in its reasoning to request an immediate ban of the app.^[9] President Trump’s Executive Order in August of 2020 cites two national security concerns: (1) mobile data collection from American users; and (2) data collection from Chinese nationals in America, as a way of “keeping tabs” on Chinese nationals.^[10] The Executive Order cites the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), and Section 301 of Title 3, United States Code as its authority to ban the app from smartphone app stores and WeChat transactions.^[11]

A separate Executive Order banning the use of TikTok, a Chinese-owned social media app, was also issued on August 6, 2020.^[12] The Executive Order similarly cites the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), and Section 301 of Title 3, United States Code.^[13] In its reasoning, the Executive Order cites similar national security concerns, including TikTok’s data collection practices.^[14] The Executive Order also cites the app’s potential for “disinformation campaigns.” ^[15]

WeChat is owned by TenCent, a larger Chinese multinational technology conglomerate.^[16] WeChat, a popular Chinese-owned messaging app, has been described as “essential” for many Chinese Americans attempting to remain in contact with family and friends in China. The app includes messaging, social media, and payment transaction services.^[17] In China, the app is known as “Weixin”.^[18]

Civil rights organizations and attorneys have also raised concerns over the First Amendment implications of the WeChat ban.^[19] In a tweet from September 18, 2020, the ACLU wrote, “Selectively banning entire platforms like TikTok and WeChat violates the First Amendment and does little to protect our personal data from abuse.”^[20] In a press release on the WeChat ban, the Knight First Amendment Institute at Columbia University wrote, “These executive orders raise serious First Amendment concerns that deserve more consideration than they seem to have received thus far. The Supreme Court held 50 years ago that the First Amendment protects Americans’ right to receive information from abroad.”^[21]

The Ninth Circuit Court of Appeals set a hearing for the WeChat case in January 2021.^[22] In the TikTok case, all briefs are due by November 12,2020 with oral arguments to follow in a D.C. Court of Appeals.^[23]

^[1] https://www.forbes.com/sites/siladityaray/2020/10/27/court-rejects-trump-administrations-request-for-immediate-ban-on-wechat/#734a2462493b

^[2] Id.

^[3] Id.

^[4] Id.

^[5] https://cdn.vox-cdn.com/uploads/chorus_asset/file/21985271/wechat_1023.pdf

^[6] https://www.scmp.com/tech/apps-social/article/3105746/wechat-app-store-ban-us-judge-laurel-beeler-says-not-inclined

[7] https://www.theverge.com/2020/10/23/21531154/judge-denies-trump-administration-ban-wechat-tencent-china

^[8] Id.

^[9] https://www.whitehouse.gov/presidential-actions/executive-order-addressing-threat-posed-wechat/

[10] Id.

^[11] Id.

^[12] https://www.whitehouse.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/