The Legal Brief
Federal Court Issues Preliminary Injunction Blocking U.S. WeChat Ban
September 23, 2020
By: Jason L. Ott, , and Derrick L. Maultsby Jr.
On September 18, the U.S. Commerce Department announced that it had banned Chinese-owned mobile apps WeChat and TikTok from U.S. app stores. WeChat is a social messaging app used for mobile payments and transfer of funds owned by Chinese multinational, Tencent Holdings. Department of Commerce Secretary, Wilbur Ross, announced that both apps and their app updates would no longer be distributed in U.S. app stores as of September 20. On September 20, U.S. Magistrate Judge Laurel Beeler of United States District Court for the Northern District of California issued a preliminary injunction which effectively blocked the Commerce Department from forcing Apple and Google to remove Chinese-owned WeChat from operating in the United States by Midnight Sunday.
WeChat Users Alliance, a nonprofit group, filed a motion for preliminary injunction on August 27, arguing that the Trump Administration’s attempt to ban WeChat violated various constitutional protections, including the right to free speech, due process and equal protection against arbitrary discrimination, noting that “the prohibited transactions will result in shutting down WeChat, a public square for the Chinese-American and Chinese-speaking community in the U.S. that is effectively their only means of communication with their community.” In her order granting the injunction, Judge Beeler wrote that the WeChat users “have shown serious questions going to the merits of their First Amendment claim that the Secretary’s prohibited transactions effectively eliminate the plaintiffs’ key platform for communication, slow or eliminate discourse, and are the equivalent of censorship of speech or a prior restraint on it.”
Judge Beeler acknowledged the government’s argument that WeChat could be a national security problem was plausible, especially considering the closeness between Chinese companies and the Chinese government. However, she argued that the Trump administration should consider alternatives as opposed to an outright ban on the app:
“Certainly the government’s overarching national-security interest is significant. 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. And, as the plaintiffs point out, 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.”
The U.S. Commerce Department set the same restrictions for TikTok, effective on November 12, unless the company resolved the Trump administration’s national security concerns by the November deadline. In a series of executive orders last month, President Trump essentially mandated that TikTok negotiate a deal to sell its U.S. operations or risk having all its commercial transactions halted in the United States. However, on September 19, Oracle announced it was chosen as TikTok’s secure cloud provider and will become a minority investor with a 12.5% stake. Further, Walmart has said it has tentatively agreed to purchase a 7.5% stake, and CEO Doug McMillon would serve as one of the five board members of the newly created company. TikTok’s Chinese parent company ByteDance will own the remaining 80% of TikTok.
If the WeChat ban had gone into effect Sunday night, the app was supposed to be removed from U.S.; the order also was supposed to prevent WeChat users from transferring funds or making payments in the U.S. Further, the ban was also supposed to generally weaken the service by preventing U.S. tech infrastructure companies from supporting WeChat. The U.S. government has not announced whether it will appeal to the United States Court of Appeals for the Ninth Circuit to overturn Judge Beeler’s order.