Do Not Let WeChat’s Court Victory Give False Security
Used for messaging, social media, and payment transfers, the WeChat application enjoys over one (1) billion user worldwide. Owned by Chinese developer Tencent Holdings Limited, the application reached its popular peak in 2018 and reportedly serves as the primary mode of communication between U.S.-based persons and their relatives and friends living in China.
Unfortunately, there is a dark side to this communication tool: WeChat can, at any time, activate users’ microphones and cameras and copy their location data, address books, photos and private messages to its servers, which is then subject to disclosure to the Chinese government. The Department of Commerce (DOC) and Cybersecurity Infrastructure and Security Agency (CISA) warn against use of the application and the influence it provides the Chinese government in communications.
Published on August 11, 2020, Executive Order no. 13943 (E.O.) effectively bans the use of WeChat in the United States by prohibiting any “transactions” involving the platform and declaring them ineffectual. The E.O. compares WeChat to TikTok, in that WeChat similarly “captures vast swaths of information from its users [,]” which “threatens to allow the Chinese Communist Party access to Americans' personal and proprietary information.” Not just fearing WeChat’s effect on U.S. citizens, the E.O. states that by capturing “the personal and proprietary information of Chinese nationals visiting the United States, … [the app permits] the Chinese Communist Party a mechanism for keeping tabs on Chinese citizens who may be enjoying the benefits of a free society for the first time in their lives.”
Several U.S. based users of WeChat filed for an injunction against the enforcement of the E.O. in the United States District Court for the Northern District of California in United States WeChat Users Alliance v. Trump, Case No. 20-cv-05910-LB. Citing First Amendment violations of free speech, the plaintiffs successfully halted the effect of the E.O. And, on October 23, 2020, the same district court reinforced its initial decision when it denied the U.S. Government’s Motion to Stay the previous injunction.
The U.S. Government contended that its “and the public interest will suffer irreparable harm absent a stay, and that it is likely to succeed on the merits of the claims because its prohibition of internet services is content neutral and survives intermediate scrutiny under the First Amendment.” While seeming to recognize the threat to national security posed by WeChat, the Northern District of California found that “the government's prohibited transactions are not narrowly tailored to address the government's significant interest in national security.” Instead, the court concluded that the E.O.’s proposed “restrictions ‘burden substantially more speech than is necessary to further the government's legitimate interests.’"
Although the Northern District of California suggested that the U.S. Government only prohibit the use of the application on government devices, this proposed bridge between the parties only demonstrates the Court’s failure to grasp the intensity of the issue. Government devices are used by people who must communicate with those who lack a government device. Those with government-issued devices also share calendar appointments with non-government personnel and login information with other family members for various accounts (banking, water, power, medical insurance). Thus, limiting the prohibition to only government-issued devices is pointless. The same communication string, username/password, and geographic location data will be saved on Chinese servers subject to inspection by the Chinese government.
Despite the Northern District of California’s opinion, @LaCyberLawBlog’s readers are strongly urged to avoid use of WeChat and its cousins, such as TikTok. The amount of information kept on an individual’s cell phone is outstanding – it includes medical information, passwords and usernames, frequently used applications and websites, financial data, location and schedules, and family data. For example, were someone to hack this author’s personal cell phone, he/she would know the names of my children, my blood type, my facial recognition data, certain fingerprints, and sensitive communications. I prefer such information not be stored and steadily updated on Chinese servers (to the extend that I can/have avoided such a fate).
As for the merit of the WeChat Alliance’s free speech argument, I will leave that debate for others.