WeChat users' suit backed on rights grounds

A lawsuit mounted by WeChat users against a ban on the Chinese app in the United States represents an important and powerful challenge to protect people's First Amendment rights, legal experts say.

"Those plaintiffs and their lawyers have won a very important victory, because the court in California has issued an order that prevents the ban from going into effect," said Hina Shamsi, director of the National Security Project at the American Civil Liberties Union, or ACLU.

"It was critically important that the court identified the very serious First Amendment concerns that have been raised by the order," Shamsi said, referring to an executive order by US President Donald Trump prohibiting US transactions with WeChat on national security concerns over the collection of users' data. The order, issued on Aug 6, was meant to take effect from Sept 20. Legal action has delayed its enforcement.

"If the ban isn't stopped by the court, then people won't be able to get software updates that can often protect against vulnerabilities and fix vulnerabilities and make these apps more secure," she told members of the Chinese community at a recent webinar.

If the ban were to proceed, the WeChat app would become less secure or degraded over time. Shamsi said users would face issues of not being able to conduct payments securely, and then people would put their own security in jeopardy if they continued using the app.

"In implementing President Trump's abuse of emergency powers, Commerce Secretary (Wilbur) Ross is essentially undermining rights as well as security," Shamsi said. "It would also set a very bad precedent about what a government can do with respect to social media apps."

Following Trump's Aug 6 executive order, the Commerce Department announced on Sept 18 that it would ban downloads of the app in the US after midnight on Sept 20. A federal court in California issued a temporary injunction to block the ban on Sept 20. The government has filed a motion to stay the WeChat ban preliminary injunction pending appeal.

WeChat has roughly 19 million daily active users in the US, most of them Chinese or of Chinese descent. For many of them, there is no alternative to WeChat to communicate with their families or conduct business in China, according to the complaint filed by the plaintiffs.

Unprecedented restriction

"The Executive Order's prohibition on the use of WeChat is the equivalent of a complete ban of a newspaper, a TV channel, or a website used by the tens of millions of US citizens who regularly use the WeChat platform to communicate ideas and to conduct business every day in the United States," said Erwin Chemerinsky, a leading US constitutional scholar, in a declaration filed in support of the plaintiffs' suit.

"Such a broad restriction on speech, as is done by this Executive Order, is unprecedented in the modern history of this country," said Chemerinsky, dean of the University of California, Berkeley School of Law.

Shamsi also questioned the motivation for the ban. The government provided speculation and assertions, but not specific and direct evidence of the purported harm to national security, she said.

Patrick Toomey, senior staff attorney in the ACLU's National Security Project, said that national security is being invoked by the government to justify intruding on people's rights in a whole host of different ways.

"The US government has tried to go quite far, especially since 9/11, in targeting black and brown communities, often stretching or outright violating the legal limits on government power in the name of national security," he said.