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US-China tensions

US-based WeChat users sue over Trump's 'unconstitutional' ban

Multiple groups are challenging executive orders targeting Chinese apps

U.S. President Donald Trump's executive orders targeting WeChat and TikTok are expected to be challenged in multiple court cases. (Source photos by AP and Reuters) 

PALO ALTO, U.S. --A group of WeChat users in the U.S. is launching a legal challenge to President Donald Trump's ban on the popular Chinese messaging app, arguing that the move violates their constitutional rights.

Trump signed two executive orders in early August banning U.S. transactions with WeChat, the messaging app owned by Tencent Holdings, and ByteDance, the owner of video app TikTok, effective Sept. 20.

The ban on WeChat is particularly worrying for Chinese Americans and Chinese expats living in America, who rely heavily on the app in their personal and professional lives.

The U.S. WeChat Users Alliance, a non-profit group founded by five Chinese-American lawyers days after the executive order was announced, filed a lawsuit Friday afternoon in the District Court for the Northern District of California to have the ban overturned. Trump and Secretary of Commerce Wilbur Ross were listed as the defendants. 

The lawsuit seeks to prevent the executive order from banning the use of WeChat in the U.S. by individual users, businesses and groups, according to the complaint. 

Michael Bien, co-founding partner at San Francisco-based law firm Rosen Bien Galvan & Grunfeld, was retained by the group to lead the lawsuit.

"The Trump ban ... is going to stop [U.S. WeChat users'] use of something that is so fundamental in their lives," said Bien, who has nearly three decades of experience in commercial litigation, class actions, constitutional and civil rights law.

While WeChat does not have as broad a U.S. user base as TikTok -- of the app's 279 million overseas downloads in the past six years, the U.S. accounted for less than 7%, or 19 million -- it has become an essential communication tool for many Chinese living overseas.

Because the app is the primary way for many of its U.S. users to communicate, organize social groups, run businesses and engage in political activities, "it is our contention that [the ban] violates the Constitution, as you cannot censor such a fundamental part of communication, especially when it affects an insular group that has historically been a minority that's been subject to discrimination in the U.S., by law or by practice," Bien added.

The First Amendment to the U.S. Constitution prohibits the government from making any laws abridging the freedom of speech, the freedom of the press, and the right to peaceably assemble and organize groups.

"The Supreme Court has recognized that social media applications and functions are similar to a public space in our society. It is like the square where you can talk, you can give speeches, you can learn things and share ideas and information. And that's what WeChat being used for," Bien said.

Another argument against the ban is that it is having a "chilling effect" -- a legal term referring to the threat of legal sanctions used to discourage people from exercising their natural and legal rights.

The executive order prohibits any transaction with Tencent that relates to WeChat, but does not define what constitutes a "transaction."

"One of the problems with the executive order that was issued on Aug. 6 is that no one knows what it means, which has a chilling effect on users," Bien said. "This executive order has criminal sanctions as possible outcomes, and no one knows what's allowed. ... The vagueness in the law is also a constitutional violation."

The Secretary of Commerce has 45 days to explain what constitutes a transaction with WeChat, but the uncertainty has already prompted many users to seek alternative apps and other methods to stay connected, as the Nikkei Asian Review previously reported.

The WeChat ban, moreover, was issued by Trump under powers contained in the 1977 International Emergency Economic Powers Act (IEEPA) after he declared Chinese apps have caused a national emergency.

However, according to IEEPA Section 1702, the act does not grant the president the authority to "regulate or prohibit, directly or indirectly, any postal, telegraphic, telephonic, or other personal communication." This, Bien argues, means Trump cannot use the act to ban the use of a messaging app.

Clay Zhu, one of the founders of the U.S. WeChat Users Alliance, is a Silicon Valley-based partner at global law firm De Heng. Specializing in cross-border mergers and acquisitions, Zhu said many of his clients are based in China and WeChat is an essential tool for his work that can not be replaced by phone calls or email.

"More than two-thirds of my clients are on WeChat," he said. "Losing access to the app would mean losing a big part of my business."

Zhu said that filing a lawsuit against Trump and the federal government seemed like a long shot at first. But he is now more optimistic after doing extensive research to prepare the case, citing the Supreme Court's decision to overrule Trump's Muslim travel ban in 2018.

To date, the U.S. WeChat Users Alliance has collected nearly $50,000 in donations from across the country.

"The lawsuit and our organization have nothing to do with WeChat or its parent Tencent. We are just a group of average WeChat users in the U.S. fighting for our rights," Zhu said.

It is unclear whether Tencent will take its own legal action against the WeChat ban. The company did not respond to requests for comment.

President Trump's ban on TikTok's owner ByteDance and WeChat will likely be challenged in court by multiple groups.

"We will pursue all remedies available to us in order to ensure that the rule of law is not discarded and that our company and our users are treated fairly -- if not by the Administration, then by the U.S. courts," TikTok said in a statement on Aug. 7, adding that the executive order was "issued without any due process."

A group of U.S. TikTok employees is also readying its own lawsuit. Patrick Ryan, a technical program manager at the popular short-video platform, said he is filing the lawsuit for the 1,500 TikTok and ByteDance employees who are at risk of not receiving paychecks when Trump's orders take effect next month. Blackstone Law Group and Mike Godwin, a prominent internet rights lawyer, has been retained to represent TikTok's U.S. employees, according to media reports.

Although different lawsuits are being prepared by different groups, both the TikTok ban and WeChat ban are likely to be challenged on a number of similar issues.

"Both executive orders are very vague: we do not know what is allowed and what's not, which is a violation of the Constitution. ... Similar to the WeChat ban, the TikTok order might have also violated the Administrative Procedure Act," Zhu said.

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