SAN FRANCISCO (CN) — A federal judge said Thursday she is disinclined to lift a block on the U.S. government’s ban on the popular Chinese messaging app WeChat.
More than 19 million Americans use WeChat — one of the few social media apps the Chinese government allows to operate within its borders — to communicate with friends and relatives in China.
Acting on executive orders issued by President Donald Trump in August, the U.S. Commerce Department said it would be illegal for WeChat to appear for download in U.S. app store platforms beginning Sunday, Sept. 20. Users who already have the app would be restricted from downloading software updates that keep it working properly.
Justice Department attorney Serena Orloff implored Beeler on Thursday to let the ban take effect while the Ninth Circuit considers the government’s appeal. She argued the People’s Republic of China is undoubtedly using the app to collect and use vast swaths of personal information through its laws requiring private companies like WeChat owner Tencent to assist the government in any way it asks.
“it is entirely foreseeable that the PRC will use Tencent’s data to aggregate more information on American users,” Orloff said. “Even if Tencent was not asked to transfer data to the PRC, it would be extremely easy to intercept the data that flows through WeChat because it is not end-to-end encrypted.”
While Beeler acknowledged that the national security concerns at stake are “serious and significant,” she said the government’s restrictions are not tailored narrowly enough to avoid chilling users’ First Amendment rights.
“This is the only case that I know of where there is a complete shutdown of an entire platform for speech,” she said.
Beeler said she was not convinced that she should revisit her decision.
“The plaintiff’s case established that WeChat was effectively the only means for people in the community in part because China bans other apps,” Beeler said.
Orloff heartily disagreed.
“The First Amendment is not a curtain that protects illegal activities. It would put the government in this absurd position where the greater its interest in preventing the illegal activity, the less it would be able to do so because the First Amendment would somehow preclude it,” she argued. “These limitations that plaintiffs allege . . . are not barriers this government has set up. Plaintiffs are free to speak on any other social media app that doesn’t directly surveil and censor speech. The fact that there aren’t alternative for communicating for people in China is a sad and unfortunate fact but cannot be laid at the blame of this government.”
But Beeler said the messaging activity on WeChat is not illegal.
“The activity on this platform is different from illegal activity. This is not Silk Road,” Beeler said, referring to dark web criminal enterprise used to sell drugs to more than 100,000 buyers. “It is a platform that users basically with awareness of the risk decide to use because it’s the only thing they can.”
When the government effectively shuts down channels of communication, she said, even legitimate national security concerns do not spare it from the necessity of passing First Amendment muster.