Updated on 10-25-2020 at 4:50 pm PDT

On October 26, the Ninth Circuit Court of Appeals denied the government’s motion to stay the district court’s September 19, 2020 order pending appeal.   See press release below.  The order is here:  USWUA v Trump Ninth Circuit Order Denying Motion for Stay, 10-26-2020

Press release from U.S. WeChat Users Alliance

October 26, 2020

Ninth Circuit Denies Government’s Latest Attempt to Ban WeChat

San Francisco, California –– Today, the U.S. Court of Appeals for The Ninth Circuit issued an order denying the U.S government’s motion to stay the preliminary injunction that has suspended the implementation of the WeChat ban. Judge Fletcher, Judge Berzon and Judge Bybee unanimously decided that the government has “not demonstrated that they will suffer an imminent, irreparable injury during the pendency of this appeal” and the preliminary injunction issued by Magistrate Judge Laurel Beeler of the U.S. District Court of Norther California remains in place, pending the outcome of the appeal in the Ninth Circuit.    

Today’s ruling is another important victory for Plaintiffs and all WeChat users in the U.S., as they may continue using the app without degradation or loss of service. The government’s proposed WeChat ban, said a spokesperson for USWUA, constitutes an “unprecedented shutdown of a major platform for communications relied on by millions of people in the United States.” According to the record, Tencent offered a number of mitigation measures to address the government’s data security concerns. Such mitigation measures are in line with industry best practices according to independent experts, yet the Commerce Department insisted on “a complete divestiture” of WeChat from Tencent. Consequently, no agreement was reached between the government and Tencent, and regular WeChat users in the U.S. and USWUA were forced to litigate, resulting in the preliminary injunction issued by Judge Beeler.

USWUA expects that the government will appeal the ruling to the U.S. Supreme Court soon, and its legal team will continue seeking all available legal remedies to prevent the WeChat ban.

“Each of the four federal judges that have considered the government’s emergency request for a stay have appropriately balanced the overwhelming evidence of immediate and irreparable injury  to our clients’ First Amendment protected interests if the WeChat ban goes into effect with the government’s speculative claims of injury caused by the continued operation of WeChat in the United States,” said Michael Bien, lead counsel for USWUA and other plaintiffs.  

Media Contact:Carl Whitaker – 510.847.0599  – carl@whitakercom.com

 

Updated on 10-23-2020 at 3:15 pm PDT

On October 23, the court denied the government’s motion to stay.  The preliminary injunction will remain in effect.  See USWUA v Trump – Order Denying Motion to Stay, 10-23-2020

Press release from U.S. WeChat Users Alliance

FOR IMMEDIATE RELEASE

Friday, October 23, 2020

Media Contact: Carl Whitaker   510.847.0599   carl@whitakercom.com

Government’s Second Attempt to Ban WeChat Denied by Federal Judge

San Francisco, California –– Today, Magistrate Judge Laurel Beeler of the U.S. District Court of Northern California issued an order denying the U.S government’s motion to stay the preliminary injunction that has suspended the implementation of the WeChat ban. Judge Beeler concluded that “[t]he government’s new evidence does not meaningfully alter its earlier submissions,” and accordingly, “[t]he court’s assessment of the First Amendment analysis and the risks to national security…are unchanged.”  

Today’s ruling is another victory for Plaintiffs and all WeChat users in the U.S., as they may continue using the app without degradation or loss of service. Judge Beeler held that Plaintiffs  raised “serious questions going to the merits of their First Amendment claims,” and the government’s attempted ban of the app is not narrowly tailored to serve their claimed national security interests. As a result, the preliminary injunction will remain in place.

USWUA believes that the government’s proposed WeChat ban constitutes an unprecedented shutdown of a major platform for communications. According to the record, Tencent offered a number of mitigation measures to address the government’s data security concerns. Such mitigation measures are in line with industry best practices according to independent experts, yet the Commerce Department insisted on “a complete divestiture” of WeChat from Tencent. Consequently, no agreement was reached between the government and Tencent, and regular WeChat users in the U.S. and USWUA were forced to litigate, resulting in the preliminary injunction issued by Judge Beeler.

It should be noted that the government filed a similar motion to stay in the Ninth Circuit early this month. USWUA expects that the Ninth Circuit will issue a ruling in the coming days. Regardless of the result, USWUA will continue seeking all available legal remedies to prevent the WeChat ban.

“The government is wasting taxpayers’ money to enforce a patently unconstitutional policy,” said Clay Zhu, co-counsel for USWUA and other plaintiffs.  

Updated on 10-14-2020 at 1:30 pm PDT

USWUA has filed its opposition to the Government’s motion asking for a stay in the Ninth Circuit Court of Appeals.  The Government’s reply, if any, is due on October 14, 2020.  (The district court still has its hearing on the government’s lower court stay motion set for October 15, 2020 at 9:30 am PDT.)  

Gov’t Reply re Emergency Motion for Stay Pending Appeal, 10-14-2020, 1696-2

USWUA Opposition to Stay in Ninth Circuit and Supporting Exhibits, 10-9-2020

Government Emergency Stay Motion to 9th Circuit

Government Addendum to Emergency Stay Motion to 9th Circuit

Press release from the U.S. WeChat Users Alliance (USWUA)

FOR IMMEDIATE RELEASE
Friday, October 2, 2020

Media Contact:
Carl Whitaker – 510.847.0599 – carl@whitakercom.com

WeChat Users Respond to Government’s Appeal to the Ninth Circuit

San Francisco, California –– Today, the Department of Justice (DOJ) filed an appeal with the Ninth Circuit seeking to overturn and stay the preliminary injunction ordered by Judge Beeler on September 20, 2020. The District Court’s preliminary injunction suspended the enforcement of the WeChat ban as provided by the August 6, 2020 Executive Order (EO) and the September 18, 2020 rule issued by the Commerce Department. At the same time, the DOJ is asking the District Court to lift its injunction pending appeal. If the DOJ succeeds, the WeChat ban would go into effect immediately. The DOJ has still presented no compelling national security interest to justify such an unprecedented ban. USWUA has opposed the DOJ’s stay motion in the District Court and will oppose any such motion in the Ninth Circuit.

With its stay motion in the District Court, the DOJ has, for the first time, submitted evidence showing that WeChat’s owner, the company Tencent, tried to negotiate a settlement with the Commerce Department since the EO came out. As disclosed by the DOJ, Tencent offered a number of mitigation measures to address the data security concern for WeChat users in the U.S.– creating a new U.S. version of the app, partnering with a U.S. cloud provider for user data storage, managing the new app through a U.S.-based entity with U.S. government-approved governance structure, escrow and review of WeChat’s source code, regular compliance audits and notifications, and stringent approvals over management and personnel with access to user data. These are effective measures in line with industry best practices, yet the Commerce Department insisted on “a complete divestiture” of WeChat from Tencent. Consequently, no settlement was reached and the average WeChat users in the U.S. such as USWUA were forced to litigate, resulting in the preliminary injunction issued by Judge Beeler.

It is also notable that in rejecting these mitigation measures offered by Tencent, the Commerce Department summarily concluded that, as a Chinese-owned company, Tencent could not be trusted at all even though it could not offer up any examples in which WeChat was used to surveil Americans—let alone in a manner that poses a national security threat. Therefore, USWUA believes that the national security threat claimed for the WeChat ban – the risk of data security and surveillance through WeChat – is merely pretextual. The President and the Commerce Department have exceeded their Constitutional and statutory authority in issuing a sweeping ban of WeChat that tramples on millions of people’s First Amendment guaranteed freedoms to speak, to worship, to read and react to the press, and to organize and associate.

“The government is trying to seek an emergency stay of the preliminary injunction,” said Clay Zhu, co-counsel for USWUA and other plaintiffs. “But it has waited for twelve days to file the appeal. If WeChat truly represents an imminent threat to national security as the government claims, it should have filed an appeal on the same day or the next day of the preliminary injunction order. The reality is that there is no emergency.”

U.S. WeChat Users Alliance

Update – Oct. 1, 2020

Plaintiffs today filed their opposition to the Government’s motion to stay the Preliminary Injunction pending appeal.  The Government’s motion, if granted, would allow the ban on WeChat to go into effect immediately.  

“Plaintiffs – and all WeChat users in the United States – would suffer irreparable harm if the WeChat Ban is allowed to go into effect.  Judge Beeler’s Preliminary Injunction found substantial Constitutional issues and irreparable harm to WeChat users in the United States if the Ban was allowed to be implemented while the important First Amendment rights implicated by the Ban are fully litigated in her Court.  The Preliminary Injunction must stay in place to preserve the rights of WeChat users, especially the millions who depend on it for communications in Chinese.”   – Michael Bien, counsel for USWUA and individual and corporate plaintiffs.

Defendants Reply ISO Motion to Stay Pending Appeal, 10-06-2020

Plaintiffs Opposition to Stay Motion, 10-1-2020

Declaration of Ying Cao Supporting Stay Opposition, 10-1-2020

Declaration of Fangyi Duan Supporting Stay Opposition, 10-1-2020

Declaration of Joe Hildebrand Supporting Stay Opposition, 10-1-2020

Decl. of Michael Bien Supporting Stay Opposition 10-1-2020

Order re Briefing Schedule for Stay Motion, 9-25-2020

Plaintiffs Opposition to Defendants Motion to Shorten Time, 09-25-2020

Declaration of Michael Bien in Opposition to Motion to Shorten Time, 09-25-2020

Notice of Classified Lodging, 09-25-2020

Proposed Order re Motion to Stay, 09-24-2020

Declaration of John Costello ISO Motion to Stay Pending Appeal, 09-24-2020

Defendants Motion to Stay Injunction Pending Appeal, 09-24-2020

 

Press release from the U.S. WeChat Users Alliance (USWUA)

San Francisco, California –– On September 19, 2020 Judge Laurel Beeler of the United States District Court for the Northern District of California issued an order granting a nationwide preliminary injunction in our favor. The order will effectively suspend the enforcement of the WeChat ban as provided by the 08/06/2020 Executive Order and the 09/18/2020 rule issued by the Commerce Department. Companies in the U.S. including app stores and service providers can continue supporting the functions of WeChat. People in the U.S. can continue using the WeChat app as usual. WeChat will not be shut down on Sunday.  The order is available here: USWUA v Trump Order Granting Motion for Preliminary Injunction.

This is an important and hard-fought victory for USWUA and millions of WeChat users in the U.S. The Executive Order and the Commerce Department rule represent a serious violation of the Constitutional rights of WeChat users in the U.S. Moreover, WeChat is primarily used by Chinese Americans, and its ban will have a disparate impact on them. As shown by the evidence presented to the Court, the Executive Order and the Commerce Department rule’s discriminatory effects upon Chinese Americans are severe and unconstitutional. 

“The WeChat ban has already caused irreparable harm to our clients,” said Michael Bien, co-counsel for USWUA and other plaintiffs. “The United States has never shut down a major platform for communications, not even during war times. There are serious First Amendment problems with the WeChat ban, which targets the Chinese American community and trampled on their First Amendment guaranteed freedoms to speak, to worship, to read and react to the press, and to organize and associate for numerous purposes.”  

Millions of people in this country rely on WeChat as the primary and often exclusive means to communicate with family members as well as friends in both China and the United States. They use WeChat to run businesses and non-profit organizations, practice their religion, receive news, organize for political causes, contribute to charities, and maintain social bonds. WeChat is even more important to them during the time of pandemic when people are unable to meet physically.

“The WeChat ban is motivated by something else other than a legitimate concern about national security,” said Clay Zhu, co-counsel for USWUA and other plaintiffs. “The President is trying to be tough on China in order to get more votes in November. Unfortunately, WeChat and its users are becoming collateral damages of his election campaigns. We will do everything we can to defend the rights of all WeChat users under the law.”

U.S. WeChat Users Alliance