Feds Lobby Ninth Circuit to Lift Barrier to Ban on China’s WeChat

The Trump administration wants the Ninth Circuit to lift an injunction preventing it from banning WeChat. China has said the U.S. seeks to hurt foreign competitors under the guise of national security action. 

A card displaying QR codes to pay electronically with WeChat Pay and Alipay sits on a vendor’s table at a farmer’s market in Beijing, Oct. 27, 2020. (AP Photo/Mark Schiefelbein)

(CN) — An attorney for users of Chinese-owned messaging app WeChat told a Ninth Circuit panel Thursday the Trump administration sought to unlawfully ban the app and should be blocked from ever doing so because it never intended to address purported concerns about Beijing-directed espionage. 

David Gossett, an attorney for plaintiffs WeChat Users Alliance and six individual app users, told the panel in a virtual hearing the proposed ban would impede users’ constitutional rights to free speech.

“There’s nothing about blocking contracts that will stop purported surveillance,” said Gossett, an attorney at Davis Wright Tremaine. “It’s clear the government has inappropriately trenched on my clients’ rights.”

Gossett requested the panel keep in place an injunction U.S. Magistrate Judge Laurel Beeler issued last September before the ban could take effect. Beeler found the government should face claims the ban violates WeChat users’ First Amendment rights.

Gossett said in court papers 19 million Americans use WeChat to communicate with friends and relatives in China.

Beeler also found WeChat’s alleged threat to national security didn’t lead to proposed government restrictions that would address the threat without impeding constitutional rights. 

The Trump administration immediately requested a stay pending appeal but the Ninth Circuit denied it last October, finding it had not demonstrated WeChat or its owner Tencent threatened any imminent harm to national security.

The popular app is one of the few social media tools Beijing allows its residents to use within its borders.

The Trump administration has repeatedly escalated its trade conflict with Beijing with claims that Chinese-owned apps are siphoning Americans’ personal data and sharing it with China’s communist government.

Trump repeated those claims in orders he signed last August calling for the U.S. Commerce Department to ban WeChat along with the popular Chinese video app TikTok.

Beijing has criticized the allegations, calling them bullying tactics and financial pressures meant to harm foreign companies in China and elsewhere that compete directly with American tech giants. 

In the virtual hearing Thursday, U.S. Department of Justice attorney H. Thomas Byron told the panel the proposed ban is content neutral, affects all users equally and would protect the nation’s interest in domestic security.

“The injunction prevents the United States from addressing national security threats,” Byron said. 

Circuit Judge Ryan Nelson, a Trump appointee, said the Chinese government is “notoriously restrictive” and asked Byron whether the ban would block American app users from one of the few applications they can use to communicate with people in China.

“Are there other alternatives with the same capacity to reach China that an American user can use to communicate,” Nelson asked.

People can still use apps such as Zoom, Signal and Skype to communicate with those in China, but the problem is WeChat’s use of malware that comprises American’s personal data, Byron said

“It boils down to the specific features in this app,” Byron said. “The Constitution does not afford adversarial governments the right to weaponize the First Amendment.”

Senior Circuit Judge Mary Schroeder, a Carter appointee, probed the First Amendment concerns of the case, asking if the ban sought to curtail certain speech.

Byron told Schroeder the ban would apply to business-to-business transactions and that users could still communicate on other platforms.

“The First Amendment does not preclude the government from using its national security authority,” Byron said.

In court papers, attorneys for WeChat users have said the app isn’t simply a business-to-business tool, but rather that it facilitates a massive “digital town hall” that provides a vital virtual space for commerce and communication.

“Rather than continuing the great American tradition of fighting repression abroad by modelling how a free and open society operates, the government seeks to kill off this digital town square — in the midst of a pandemic,” WeChat users’ attorneys said in a brief. “But WeChat is not simply a business application that can be regulated without regard to the First Amendment; it is a medium of communication.”

Senior Circuit Judge Jay Bybee, a Bush appointee, asked Gossett whether any action by the panel might unnecessarily foreclose Congress’ ability to hold future hearings where it may find WeChat operates unlawfully.

Congress could still enact enforcement measures in the future even if the injunction was upheld, Gossett said.

Further, the government presented no evidence of unlawful activity by WeChat in the U.S. and any evidence of surveillance was tied to cases that took place in China, Gossett said.

“Nothing binds the government for all time were the evidence to change,” Gossett said. 

The ban is unlawful under the International Emergency Economic Powers Act and precluded by the First Amendment, Gossett told the panel.

The panel took the matter under submission.

Trump has imposed restrictions on other apps and companies owned by firms in China and other nations.

Chinese telecom giant Huawei had its access to U.S. technology curbed last year and a Jan. 6 Trump order bans companies from facilitating payment transactions with Alipay, WeChat Pay and six other apps.

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