On August 6, 2020, the Trump Administration issued Executive Order 13943, banning the use of WeChat, a Chinese social media app, in the United States starting on September 20, 2020. Under the order, consumers in the United States will not be able to download or update WeChat, or engage in transactions such as sending or receiving money through the app. According to Secretary of Commerce Wilbur Ross, the order will essentially “shut down” the app for American users. On September 20, 2020, the day the ban was scheduled to take effect, the United States District Court for the Northern District of California blocked the order in U.S. WeChat Users Alliance v. Trump, No. 20-cv-05910-LB, 2020 WL 5592848 (N.D. Cal. Sept. 9, 2020), granting a preliminary injunction in favor of the plaintiffs. This case illustrates the ongoing debate on restricting the operation of Chinese tech companies in the United States and is further reflective of the growing tensions between the two countries.
The plaintiffs in U.S. WeChat Users Alliance v. Trump consisted of a nonprofit created in opposition to the WeChat ban, as well as persons and businesses who used the app across the United States. The plaintiffs brought forth a host of claims, arguing that the ban violated the First Amendment, the Fifth Amendment, the Religious Freedom Restoration Act, the International Economic Emergency Powers Act, and the Administrative Procedures Act. On the First Amendment claim, the plaintiffs contended that the ban was “a prior restraint on their speech that does not survive strict scrutiny.” Further, they argued that the ban could not even survive intermediate scrutiny because “it is not narrowly tailored to address the government’s interest in national security.”
The court granted the plaintiffs’ preliminary injunction on the First Amendment claim, finding that the balance of hardships weighed in their favor. The court found that the plaintiffs are likely to succeed on their First Amendment claim, as “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.” In addition, the plaintiffs have established irreparable harm as the ban would eliminate their platform for communication. Finally, the court held that the balance of equities favored the plaintiffs and that “public interest favors the protection of the plaintiffs’ constitutional rights.” In considering the government’s interest, the court noted that “even in the context of the significant national-security and foreign-policy concerns,” the specific evidence that WeChat posed a national security threat was “modest.”
U.S. WeChat Users Alliance illustrates the continuing controversy regarding the curbing of Chinese tech companies in the United States. The same executive order banning WeChat also prohibited TikTok from operating, and President Trump has repeatedly called for a forced sale of the short-video app. Some commentators have suggested that besieging Chinese tech companies is a formidable strategy the United States could deploy to stifle China’s growth, and the Trump Administration has apparently taken that advice to heart. In June 2020, the Federal Communications Commission (FCC) designated Huawei and ZTE, two Chinese telecommunications companies, a threat to national security, thereby restricting companies from purchasing equipment or services produced by these firms. A Chinese dating app, Grindr, was sold earlier this year after the United States cited national security concerns. The Senate has also approved a bill that could delist some Chinese companies publicly trading on the New York Stock Exchange by January 2022.
On a broader scale, the case demonstrates the escalating hostilities between China and the United States. Much of President Trump’s reelection campaign is premised on China-bashing, with intensifying efforts to scapegoat China for issues from the novel coronavirus to the familiar trope of American job loss. Even if a new President is elected in November, the hawkish attitude of American policymakers toward Chinese technology companies is unlikely to change. Beijing is also mobilizing resources to decrease its reliance on essential U.S. technology, leading some to wonder of the advent of a new “tech cold war.” If such prophecies came to fruition, both American industries and consumers will likely suffer.
However authoritarian and capricious President Trump is liable to be, the California District Court decision forcefully illustrates that there will always be pushback. TikTok, for its part, has also turned successfully to the judiciary for temporary relief. It is gratifying to see that the courts are still available to serve as a powerful check against executive action—just as the Founders envisioned. The Constitution may have been crafted in the bygone era of inked calligraphy and embroidered rolls of parchment, but its fundamental values continue to safeguard individual rights in today’s world of mobile apps, chat channels, and online classes.