WeChat Executive Order Enjoined Because (Of Course) It’s Unconstitutional-WeChat Users v. Trump – Technology & Marketing Law Blog

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WeChat Executive Order Enjoined Because (Of Course) It's Unconstitutional-WeChat Users v. Trump - Technology & Marketing Law Blog

A federal district court preliminarily enjoined Executive Order 13943 seeking to kick WeChat out of the United States. This is a good ruling blocking an obviously unconstitutional executive order, but the fact the federal government issued and aggressively defended yet another unconstitutional order shows how thoroughly corrupted our executive branch is.

Background

The Trump administration has issued executive orders targeting TikTok and WeChat. The justifications for these EOs remain murky at best. Both are framed as anti-China and pro-national security, but neither rationale is very credible.

With respect to anti-China, an executive order banishing a speech platform from the country is exactly the kind of thing that China would do and has done, and it’s the kind of thing that the US has repeatedly criticized China for doing. So, advancing an anti-China agenda by implementing policies inspired by China against seems…I don’t know, ironic in the Alanis Morrissette sense?

The national security rationales are mockably pretextual. The federal government says the Chinese government’s ability to hoover up consumer data from the apps poses a national security threat to the US. Then again, the Trump administration has repeatedly fought against E2E encryption because it would interfere with the US’s ability to hoover up consumer data. Furthermore, the EU-US privacy safe harbor and Privacy Shield both failed because the EU believes that EU consumer data isn’t secure from US government snooping. So when the Trump administration characterizes WeChat/TikTok as a threat to US national security, the US implicitly admits that every US online offering threatens EU “national” security because the US’s data hoovering capacity is analogous to China’s. If the US really cared about protecting national security by reducing the risk of government snooping of online consumer activity, it would start by fixing its own security holes domestically.

Despite the national security pretext, of course the Barr-led DOJ argued the national security argument with a straight face, and media entities faithfully repeat it (proving they still haven’t adjusted their pre-2016 modes of covering the government). Anyone who understands anything about security knows that national security justifications are yet another flat-out lie from the Trump administration.

Once we disregard the not-credible anti-China and national security justifications, the anti-TikTok EO most likely reflects Trump seeking vengeance for the pranking of his June 2020 Tulsa rally, where TikTok users visibly embarrassed Trump through inauthentic ticket registrations that left many empty seats. Another possibility is that Trump intentionally talked down TikTok’s valuation as a payoff to a patron. If that’s the case, Oracle’s TikTok transaction looks suspicious, not praiseworthy.

That still doesn’t explain the WeChat EO. My hypothesis: it would have been too suspicious for the Trump administration to go only after TikTok, so they needed a second target to give cover to whole corrupt enterprise. In other words, WeChat may be in an existential fight because Trump hates TikTok. #MAGA.

The WeChat Ban

Like other social media services, WeChat enables user-to-user conversations. As the court summarizes: “in the U.S., Chinese-American and Chinese-speaking WeChat users rely on the WeChat platforms to communicate, socialize, and engage in business, charitable, religious, medical-related, and political activities with family, friends, and colleagues (here in the U.S. and around the world).” The WeChat users highlighted a sympathetic organization, Mental Health Association for Chinese Communities, that cannot function without WeChat. This leads the court to make this powerful statement:

WeChat is irreplaceable for its users in the U.S., particularly in the Chinese-speaking and Chinese-American community.

The EO seeks to shut down those irreplaceable functions. Based on authority provided by the EO, the Commerce Secretary banned the following activity involving WeChat:

  • downloads from an app store
  • any hosting that helps the app
  • any content delivery service
  • “transit or peering services”
  • movement of money
  • use of the WeChat app’s “code, functions, or services” by other software

The court summarizes:

the result is that consumers in the U.S. cannot download or update the WeChat app, use it to send or receive money, and — because U.S. support for the app by data hosting and content caching will be eliminated — the app, while perhaps technically available to existing U.S. users, likely will be useless to them. In public comments on September 18th, the Secretary said that “[f]or all practical purposes, [WeChat] will be shut down in the U.S. . . . as of midnight Monday.”

The Court Ruling

First Amendment. The court says the plaintiff sufficiently showed that the Commerce Department’s transaction restrictions “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.”

The government argued that WeChat users can use other apps. First, this is a nakedly corrupt argument. The government can always claim that users of a shutdown speech venue can take their conversation somewhere else. That argument thus can be used to justify illegitimate takedown of speech venues strategically for censorial or other corrupt purposes. Second, the plaintiffs successfully rebutted the argument: “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.”

The court says the EO is unconstitutional even using intermediate scrutiny. The court says national security is a significant government concern, and the government established that China’s activities generally raise national security concerns. However, the government “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 prohibited transactions burden substantially more speech than is necessary to serve the government’s significant interest in national security, especially given the lack of substitute channels for communication.”

I don’t see how the government can navigate around this First Amendment hurdle. That’s unsurprising because the EO was blatantly unconstitutional censorship. That conclusion isn’t rocket science.

IEEPA. IEEPA provides statutory authorization for the EO, but it also says the government can’t restrict any “personal communications” (or else IEEPA would be facially unconstitutional). The court sidesteps the statutory analysis because some of the banned transactions might not restrict communications.

Void for Vagueness. “The Secretary identified prohibited transactions understandably, and the plaintiffs are not likely to succeed on the claim to the extent that it is predicated on the lack of clarity of the prohibited transactions based on subsequent media reports.”

Injunction Grounds. “The immediate threat is the elimination of their platform for communication, which results in irreparable injury absent an injunction.”

The government cited a terrible op-ed arguing that banning WeChat might push members of the Chinese diaspora out of WeChat’s closed universe. Again, this argument can be weaponized to justify targeting any speech venue that caters to minority communities, by claiming that the community members should integrate into tools not designed for them, so this is another pro-censorial argument from the DOJ. The court responds by quoting Trump’s own May 2020 anti-Section 230 EO:

Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. The freedom to express and debate ideas is the foundation for all of our rights as a free people….

The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans [including the plaintiffs and others in the U.S. WeChat community] follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.

??? It’s deliciously ironic to see a Trump pro-censorship garbage EO quoted to enjoin a subsequent pro-censorship garbage EO from him. The court basically tells the EO drafters to EAT THEIR OWN WORDS.

Implications

“Unconstitutional” is the Trump Administration’s Middle Name. The Trump administration has racked up an “impressive” list of unconstitutional accomplishments. That’s because this administration has never cared about complying with the law. With respect to the First Amendment, this isn’t their first violation either. I don’t have a complete list, but last year the Second Circuit ruled that Trump’s Twitter blocks violated the First Amendment. Fortunately, the judicial branch remains a bulwark against such abusive illegality (which is why the Trump administration has prioritized efforts to control and undermine the judicial branch).

Lying Through a “Veneer” of Legal Compliance. On the surface, the WeChat EO checks off the right legal boxes: it cites statutory authority for declaring an emergency and a legitimate basis–national security–for its actions. Framed that way, the EO invites the media and smart commentators to treat the EO as a bona fide good faith government action. However, this “veneer” of legality further erodes our faith in the rule of law. Of course shutting down a speech venue is obviously unconstitutional– it’s not a close question. Dressing up the illegality is just a fancy way to lie to voters/taxpayers. However, the charade breeds cynicism that the Trump administration is always lying to us, even when the administration packages its actions with a veneer of legality. Who can we trust any more? Certainly not our own government.

#MAGA. I’m especially infuriated that the EO does ABSOLUTELY NOTHING to benefit the American public in any way, shape, or form. (Again, I’m discounting the obviously pretextual purported national security concern). If the EOs accomplished its goal, who wins? I only see losses to the American people from shutting down TikTok or WeChat. We lose the social value created from the conversations on TikTok and WeChat, and worse, our country looks hypocritical, the American people lose our confidence in the rule of law, and we as engaged citizens lose another chunk of our free speech. It’s not unusual for Trump administration decisions to provide no benefit to the American people, but I still remain shocked how blatantly the Trump administration wields its government power to produce outcomes that hurt Americans; and I remain even more shocked that our country isn’t united against such abusive governmental actions.

The WeChat EO Is Bad. The TikTok EO is Worse. The WeChat EO appears to be stupid. The TikTok EO appears to be raw corruption (the Wall Street Journal described it as “crony capitalism“). As Mike Masnick explained, “It is positively insane, Banana Republic, kleptocratic nonsense that any business deal should hinge on whether the President himself gives it a thumbs up or a thumbs down….It’s like a clusterfuck of stupidity, corruption and kleptocracy.” The executive branch inserted itself into TikTok’s sale by threatening an unconstitutional shutdown of a speech venue. Any outcome that follows from the illegal intervention is irreversibly illegitimate.

(For more on the multiple layers of hypocrisy in the Trump administration’s treatment of TikTok, see this post by Anupam Chander).

Splinternets. The TikTok/WeChat EOs are part of a broader global phenomenon of erecting national borders on the Internet. If TikTok and WeChat are banned in the United States, our Internet options would differ from the rest of the world. This phenomenon is called the “splinternets,” i.e., each country develops a non-universal version of the “Internet.” Historically, I had assumed the United States would be the least likely country to actively manufacture a splintered US-only version of the Internet (at least, not a version with fewer services than other countries). Wrong. Consistent with the Trump administration’s lust for authoritarianism, the United States is now teaching the rest of the world how to fragment the Internet.

(On this front, China thinks the TikTok deal template sounds pretty good and they will be pursuing similar arrangements against US companies. So we are teaching repressive regimes how to become more repressive! #MAGA).

The TikTok deal, in particular, bears some resemblance to the “data localization” requirements that have sprung up around the world. These laws require companies to store the data of a local country’s citizens within the country. In theory, this ensures that the companies will protect the citizens’ data consistent with local privacy rules. In practice, this becomes a tool for censorship. It ensures that the companies have local property and personnel, which the government can then coerce through punitive sanctions. The country’s government can then wield that power to dictate what the company will or won’t say. The TikTok deal largely embraces data localization, so other countries will adopt the data localizations rationale as a pretext to advance their censorship.

A Small Ray of Good News. Everything about the WeChat and TikTok EOs is a massive dumpster fire, but at least our judiciary rose to the challenge again. I especially want to give a shoutout to Judge Beeler and her clerks/staff. The opinion is well-constructed, even though they cranked out a 22 page decision over a weekend. Amazing. Worse, the Commerce Secretary unnecessarily and artificially manufactured this crisis by issuing the restricted transactions list just TWO days before the termination deadline, but the judicial branch rose to the occasion to adjudicate this complex matter on an ultra-rush basis–and there’s not a hint of a gripe about the EO’s completely bogus timelines. Watching the judiciary do a spectacular job reminds me that there are still federal civil servants who make America great.

Case citation: U.S. WeChat User Alliance v. Trump, 3:20-cv-05910-LB (N.D. Cal. Sept. 19, 2020)