WeChat Likely Won’t Be Banned While Court Battle Proceeds, Judge Indicates

WeChat Likely Won’t Be Banned While Court Battle Proceeds, Judge Indicates
Photo: Lionel Bonaventure, Getty Images

A federal judge in San Francisco indicated that the Department of Justice still doesn’t have jack shit to convince her to allow the Trump administration to move forward with a ban on new downloads of Chinese messaging app WeChat while court battles proceed, per the Verge.

In the past few months, the White House has tried to force through orders essentially banning U.S. companies from working with WeChat and requiring Beijing-based ByteDance to sell off the wildly popular TikTok social media app to a U.S. company or face similar penalties. In both cases, the Trump administration cited unproven claims of a significant security risk to the U.S., claiming authority to act under the Emergency Economic Powers Act and the National Emergencies Act. At the same time, White House made clear its primary motive was Red Scare-style political posturing against the Chinese tech industry using cybersecurity and censorship concerns as little more than pretext.

Neither ban went into effect in September as threatened. TikTok remains free to download amid the White House’s continued efforts to strong-arm ByteDance into a messy deal with Oracle, which enjoys a cosy political relationship with Trump. The order against WeChat banned all “transactions” between U.S. citizens and the app without ever bothering to define what that meant. The U.S. WeChat Users Alliance, a nonprofit representing businesses and individuals who rely on the app to stay in touch with partners, relatives, and friends abroad and says the order is intended to discriminate against Chinese Americans, won a preliminary injunction in September. U.S. Magistrate Judge Laurel Beeler ruled the government hadn’t put forth a justifiable explanation of how the supposed national security risk outweighed mass censorship of WeChat users, and provided “scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns” in the first place. Beeler wasn’t swayed by further DOJ arguments on Thursday, the Verge wrote.

The U.S. government considers WeChat’s owner, Tencent, a security risk because it can use the app to collect a “digital facsimile of a person’s life” and potentially share it with the Chinese government, DOJ attorney Serena Orloff argued on Thursday. The DOJ also argued that the 19 million WeChat users in the U.S. could simply download another app.

Per Courthouse News, Orloff added that “It is entirely foreseeable that the [People’s Republic of China] will use Tencent’s data to aggregate more information on American users. 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.”

“This is the only case that I know of where there is a complete shutdown of an entire platform for speech,” Beeler responded. She also questioned the DOJ’s logic, pointing out that “The plaintiff’s case established that WeChat was effectively the only means for people in the community in part because China bans other apps.”

Orloff responded in part, “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.”

Beeler wasn’t having it.

“The activity on this platform is different from illegal activity,” Beeler responded, according to Courthouse News. “This is not Silk Road. It is a platform that users basically with awareness of the risk decide to use because it’s the only thing they can.”

Beeler’s comments on Thursday don’t constitute a ruling on the DOJ’s appeal to lift the injunction, but they’re a very strong indication that WeChat will remain accessible to U.S. users until lengthier court battles play out. The separate issue of the TikTok sale remains in limbo, with the president only issuing a preliminary “blessing.” The Commerce Department entity that regulates foreign deals, the Committee on Foreign Investment in the U.S., has up until Nov. 12 to approve an Oracle bid.