On Aug. 21, a group of WeChat users in the U.S. officially filed a lawsuit against President Trump’s executive order banning the usage of this app from Sept. 20. On Sept. 17, the federal court of San Francisco will hold the first hearing on a preliminary injunction concerning enjoining the government from enforcing the order. ALB caught up with one of the attorneys representing the plaintiffs, Michael Bien, before the hearing.
ALB: Could you tell us about yourself, and your role in this lawsuit?
Michael Bien: I’m an attorney in San Francisco and we have a litigation firm (Rosen Bien Galvan & Grunfeld) that does a lot of civil rights work including in the area of suits challenging government actions under the First Amendment of the Constitution: Freedom of speech, or of the press. We also do some work involving high-technology companies.
As one of the three law firms in the lawsuit, we were approached by a group that was formed for the purpose of challenging President Trump’s executive order banning WeChat. The group is called U.S. WeChat Users Alliance, and none of our plaintiffs are associated in any way with Tencent or WeChat. They are just users of WeChat, people who find they’re very dependent on WeChat both in their day-to-day life and business, and to communicate with their families both in China and around the United States.
They are quite concerned and frightened about the executive order, which includes a series of criminal and civil sanctions, but does not include any definitions about what activities are OK to do using WeChat, and what are not. My clients don’t know whether they will be able to use WeChat, whether it will be turned off, or whether they are allowed to use it, only to be later told that what they do is illegal.
So, people are attempting to find ways of downloading their contacts, their business records and their groups on WeChat, but it’s very difficult. My clients have also told me there are no good alternatives for Chinese speakers in the U.S. to WeChat. We estimate that more than 40 percent of the Chinese population in the U.S. is not literate in English. They really depend on WeChat for that reason.
ALB: What are you looking to achieve through the lawsuit?
Bien: We’re contending that the executive order is violating the Constitution in various ways. We also contend that it violates statues, certain laws passed by the Congress. But the most important interests are the constitutional interests, which includes the First and Fifth amendments of the Constitution.
The First Amendment protects activities such as free speech, including the right to speak, to gain access to the press, to write your opinions, and the freedom of association, which means the freedom to organize groups and to get together. All these rights are protected by the First Amendment, along with the freedom of religion. Especially during the pandemic, when people are not allowed to gather in closed spaces, apps like WeChat are used for religious gatherings, and also for announcing information like births and deaths within families. Because of the critical role WeChat is playing for the Chinese community around the whole world, those interests are even more important.
Discrimination will be another claim. We think this executive order is related to President Trump’s recently increasing anti-China statements, which really have helped cause a rise in hate crime in America towards the Chinese community. There are a lot of social media apps that do the same thing as WeChat. He says that WeChat downloads users’ data and uses it, but so does Facebook, really, everyone does that because that’s how they make money. Why are you banning just this company? Only because it will have an extraordinary effect on the Chinese community?
Another claim is called due process under the Fifthth Amendment of the Constitution. It says the government has to give fair notice to people about what is legal and what is illegal. In terms of this executive order, which says any transaction with Tencent or WeChat is illegal as of Sept. 20, but it doesn’t say what “transaction” means. Some people say any use of it at all is illegal, or it could mean downloading it from App Store is illegal, or upgrade your software is illegal, or anything you do on WeChat is illegal. And the executive order includes criminal sanctions of up to 20 years in prison and a fine of a million dollars, and civil sanctions of $200,000 dollars or twice the amount of your transaction. Those are real serious penalties and under constitutional law, you can’t hold someone against penalties like these, especially criminal penalties, without telling them what behaviours violate the laws and what do not.
ALB: Can we confirm this lawsuit employs a very different strategy compared with Tiktok?
Bien: The Tiktok suit is brought by the company owner, not by the users. I think some elements of the two cases are overlapping, but some are very different. Tiktok users can also protect their rights under the First Amendment, but it’s not a Chinese-oriented app at all, and it doesn’t serve that community as WeChat does in the U.S.
ALB: Why do you believe the lawsuit will proceed?
Bien: I think lawsuits that challenge the government are difficult. The government has a lot of power in these areas; they can say they’re dealing with national security issues and the court will give deference to those interests. But we think given the constitutional rights violated here, and given the lack of evidence in regard to the national security problems, there is a chance for plaintiffs to enjoin the ban.
I can’t predict the outcome, but I think that the constitutional problems here are serious, and it requires the government to demonstrate some substantial reason with real evidence to show the executive order is so necessary. I think the court will ask: Is there another way to achieve this legitimate goal of national security without shutting off the whole app and hurting so many people living and working in America, including American citizens? That’s the angle we’ll try to get the court to look at.
ALB: Is there any precedent in this regard?
Bien: What’s interesting to me is that this case is unprecedented - shutting down a social media app is unprecedented. We’re trying to think of an analogy before the era of Internet, before social media, when the government shut down a newspaper or a radio station in the US, which is illegal here.
There is an interesting case called Backpage.com, LLC v Thomas J. Dart, Sheriff of Cook County. The sheriff of Cook County, Chicago, tried to get credit card companies to stop doing business with an American website called Backpage, which was used for posting advertisements for people looking for sexual partners. The U.S. Seventh Circuit Court of Appeals ruled that the Sheriff’s actions were unconstitutional.
Nothing from the case is directly relevant here, but the point is: The court decided that a website making money selling ads for sexual partners can’t be shut down, and that the website company’s constitutional rights under the First Amendment were violated by the sheriff’s indirect efforts. The court said in the opinion that the sheriff could denounce the website, but not make “dire threats,” including of possible prosecution, and the court barred the sheriff from coercing or threatening sanctions for doing business with Backpage.
To some extent, this case sort of has the same principleas the current case. President Trump is saying, “I’m angry with China, I want everyone to stop doing business with China and I’ll start out with WeChat and Tiktok, or I’ll threaten you.”
Talking about constitutional lawsuits in the era of the Internet, there’s one important Supreme Court case, which is called Packingham v. North Carolina. In this case, people convicted of sex crimes who were released from the prison were banned from using the Internet and social media by the government, and that was found to be unconstitutional by the Supreme Court. The Supreme Court for the first time said that the Internet was something special, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds,” so the government couldn’t ban a former criminal from using the Internet at all.
Again, not exactly on point, but the law is moving gradually to understand what social media is because it’s so different from anything previously. And its realizing that social media is where people can gather, share ideas and communicate.
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