U.S. WeChat Users Alliance v. Trump

Background

The government asked the court to stay, or pause, a preliminary injunction that barred enforcement of the Department of Commerce Secretary’s identified restrictions on certain WeChat-related business transactions. Those restrictions covered services such as app-store distribution and updates, internet hosting, content delivery, directly arranged internet transit or peering, payment processing, use of WeChat code and functions in other software, and certain future transactions involving Tencent Holdings Ltd. The stated purpose was to reduce national-security risks associated with Tencent and WeChat, including data collection, surveillance, censorship, and possible access by Chinese intelligence and security services.

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

New Evidence

The government submitted additional information about the Chinese government’s influence over Tencent, China’s intelligence and surveillance requirements, Tencent’s history, WeChat’s data practices and security vulnerabilities, and WeChat’s alleged censorship and propaganda functions. The government also submitted a classified counterintelligence assessment and a redacted version of that assessment.

Tencent proposed mitigation measures, including creating a new U.S. version of the app, protecting its source code, storing user data with a U.S. cloud provider, and managing the app through a U.S.-based entity with a government-approved governance structure. The Department of Commerce recommended rejecting the proposal because Tencent would retain ownership and because the Department found that Tencent’s ties to the Chinese government and the applicability of Chinese law created a lack of sufficient trust.

The parties disputed how the restrictions would affect WeChat. The government’s evidence characterized the effects as gradual or limited in several respects and estimated that it could take one to two years for the app to become unusable for dedicated U.S. users. Plaintiffs’ evidence stated that the restrictions would seriously degrade WeChat, prevent security updates, create security risks, and effectively shut down the app for U.S. users. Plaintiffs also identified data-security practices and narrower restrictions that they said could address the government’s concerns.

Analysis

The court applied the four-factor standard used for a preliminary injunction to the motion to stay. The factors were the likelihood of success on the merits, irreparable harm to the party seeking the stay, harm to the opposing party, and the public interest. The first two factors were the most important, and the harm and public-interest factors merged because the government was the opposing party.

The government argued that national-security concerns supported a stay, that the government and public would suffer irreparable harm without one, and that it was likely to succeed because the restrictions were content-neutral and satisfied the First Amendment’s intermediate-scrutiny standard. The court found that the additional evidence illuminated the national-security threat but did not meaningfully change its earlier assessment.

The court held that the restrictions were not narrowly tailored to address the government’s significant national-security interest. It identified narrower approaches in the record, including barring WeChat from government devices and adopting mitigation procedures involving data security and industry best practices. The court concluded that the restrictions burdened substantially more speech than necessary and that the plaintiffs continued to meet the standard for a preliminary injunction.

Disposition

The court denied the government’s motion to stay the preliminary injunction. It also denied the government’s request for a bond on appeal, finding that a bond was not appropriate. The order stated that these rulings disposed of ECF No. 68.