U.S. WeChat Users Alliance v. Trump

Background

The government asked the court to stay, or temporarily suspend, a preliminary injunction that blocked restrictions on business-to-business internet services supporting WeChat. WeChat is a messaging, social-media, and mobile-payment application owned by Tencent Holdings Ltd. The restrictions covered services such as app distribution and updates, internet hosting, content delivery, internet transit and peering, certain payment processing, and use of WeChat code or functions in other software.

The plaintiffs are U.S.-based WeChat users. The court had previously issued the preliminary injunction after finding that the plaintiffs raised serious questions about their First Amendment claims, that the balance of hardships sharply favored them, and that the other requirements for preliminary relief were met.

For the stay motion, the government submitted additional information about national-security concerns considered by the Secretary of Commerce, including Tencent’s relationship with the Chinese government, WeChat’s data practices and security vulnerabilities, and alleged surveillance and censorship concerns. Tencent also proposed mitigation measures, including a new U.S. version of the application, a U.S. cloud provider for user data, security measures, audits, and U.S.-based governance. The Department of Commerce recommended rejecting that proposal because Tencent would continue to own WeChat.

Analysis

The court applied the preliminary-injunction factors to the request for a stay. Those factors included whether the government was likely to succeed, whether it would suffer irreparable harm without a stay, whether a stay would substantially injure the other side, and whether a stay would serve the public interest.

The court acknowledged that the new evidence provided more information about the national-security threat the government associated with Tencent and WeChat. But the court concluded that the evidence did not meaningfully change its earlier First Amendment analysis or its assessment of the national-security risks. The court held that the prohibited transactions were not narrowly tailored to address the government’s significant national-security interest. It identified narrower approaches, including restricting WeChat on government devices or using mitigation procedures and data-security practices.

The court therefore concluded that the record supported the preliminary-injunction finding that the restrictions burdened substantially more speech than necessary. It denied the government’s motion to stay the preliminary injunction.

Bond Request and Disposition

The government also requested a bond on appeal. The court denied that request, explaining that a bond was not appropriate and that district courts have discretion to require no security when there is no realistic likelihood of harm from the injunction.

The order states: “The court denies the government’s motion to stay the preliminary injunction.” It also denies the government’s request for a bond on appeal. The order does not finally resolve the plaintiffs’ underlying First Amendment claims.