Judge Issues Preliminary Injunction Saying That The US Cannot Block WeChat, Says The Ban Raises 1st Amendment Concerns

from the good-to-see dept

While much of the news this weekend with regards to the President's plans to block Chinese messaging apps focused on the fake "deal" to avert a TikTok ban, things didn't go the President's way on his other planned ban. As you may recall, along with TikTok, Trump issued an executive order to ban WeChat, the very popular Chinese social network/messaging/everything app. Last week, we noted that a bunch of WeChat users in the US were trying to get an injunction to block the ban, as the Commerce Department's details about the ban proved that its stated goal of protecting Americans was nonsense.

The court held a hearing over the weekend (after also holding hearings on Thursday and Friday) and quickly issued a preliminary injunction, blocking the Commerce Department from putting the WeChat ban in place. As the judge rightly notes, there are significant 1st Amendment concerns with the ban. Basically, the court says that the WeChat users have rightly shown that banning the app likely violates the 1st Amendment and creates prior restraint:

On this record, the plaintiffs have shown serious questions going to the merits of their First Amendment claim that the Secretary’s prohibited transactions effectively eliminate the plaintiffs’ key platform for communication, slow or eliminate discourse, and are the equivalent of censorship of speech or a prior restraint on it.... The government — while recognizing that foreclosing “‘an entire medium of public expression’” is constitutionally problematic — makes the pragmatic argument that other substitute social-media apps permit communication. But the plaintiffs establish through declarations that there are no viable substitute platforms or apps for the Chinese-speaking and Chinese-American community. The government counters that shutting down WeChat does not foreclose communications for the plaintiffs, pointing to several declarations showing the plaintiffs’ efforts to switch to new platforms or apps. But the plaintiffs’ evidence reflects that WeChat is effectively the only means of communication for many in the community, not only because China bans other apps, but also because Chinese speakers with limited English proficiency have no options other than WeChat.

The plaintiffs also have shown serious questions going to the merits of the First Amendment claim even if — as the government contends — the Secretary’s identification of prohibited transactions (1) is a content-neutral regulation, (2) does not reflect the government’s preference or aversion to the speech, and (3) is subject to intermediate scrutiny. A content-neutral, time-placeor- manner restriction survives intermediate scrutiny if it (1) is narrowly tailored, (2) serves a significant governmental interest unrelated to the content of the speech, and (3) leaves open adequate channels for communication.... To be narrowly tailored, the restriction must not “burden substantially more speech than is necessary to further the government’s legitimate interests.”... Unlike a content-based restriction of speech, it “need not be the least restrictive or least intrusive means of serving the governments interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not advance its goals.”...

As for the supposed "national security" interests of the US government? The court says "yes, if only the DOJ shared any details."

Certainly the government’s overarching national-security interest is significant. But on this record — while the government has established that China’s activities raise significant nationalsecurity concerns — it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns. And, as the plaintiffs point out, there are obvious alternatives to a complete ban, such as barring WeChat from government devices, as Australia has done, or taking other steps to address data security.

The court did not go into the various other claims by the plaintiffs, though if the case continues they'll come up later. However, in closing out the ruling, the judge uses the President's own words in the executive order against him. After the DOJ told the court that the WeChat ban was important for human rights because China heavily censors communications on WeChat... the judge more or less says "um, isn't that what you're now trying to do?" and points to the President's own words about free speech in this very executive order:

Finally, at the hearing, the government cited a Washington Post article contending that a ban of WeChat is a net positive for human rights: “WeChat it is a closed system that keeps its 1.2 billion users in a parallel universe where they can communicate as long as they don’t cross the lines, and banning it might eventually strengthen the voices of the Chinese diaspora.” This is another important point: the federal government — based on its foreign-policy and national security interests —may not want to countenance (or reward) the Chinese government’s banning apps outside of the Chinese government’s control and, more generally, censoring or punishing free speech in China or abroad. But as the President said recently in Executive Order 13925,

Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. The freedom to express and debate ideas is the foundation for all of our rights as a free people.

...

The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans [including the plaintiffs and others in the U.S. WeChat community] follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.

End result: the court puts a nationwide injunction saying that the Commerce Department cannot implement the WeChat ban it described last week.

Filed Under: 1st amendment, ban, china, donald trump, executive order, free speech, injunction, prior restraint
Companies: tencent, wechat

Experts Say Internet Shutdowns Don't Thwart Protests

from the the-last-refuge-of-simple-minds dept

Like so many authoritarians, Belarus "President" Alexander Lukashenko has taken to violence, intimidation, and censorship in a ham-fisted bid to stifle those critical of his dubious election win. On the technology side, that has involved hiring U.S. network gear maker Sandvine to help the country block citizens' access to the broader internet. During August's contested election, citizens found their access to social media outlets like Twitter and Facebook prohibited thanks to Sandvine and the Belarusian government, which originally tried to claim that the blockade was the result of a cyberattack. News outlets like CNN and the BBC, and search engines like Google, were also blocked.

Aside from being harmful, there's increasing evidence that this kind of censorship simply doesn't work. A recent study in the International Journal of Communications took a closer look at what happened to protest movements in African countries when governments attempted massive censorship of the internet, and it found that while there wasn't evidence that such shutdowns drove greater unrest, there also was no evidence such behavior thwarted protests:

"For example, a social media blackout in Ethiopia in December 2017 “completely failed” to suppress protests caused by ethnic tensions in part of the country, the authors wrote. There was actually a surge in clashes during the shutdown itself. The study used data on the locations of protests and whether they were considered violent or not, but the researchers didn’t have access to detailed information on the number of demonstrators present or what form their online activity had taken prior to the internet shutdown or social media blackout.

Experts have been quick to note such censorship doesn't magically thwart the underlying grievances driving the protests, and creative protesters are likely to develop tools to bypass internet lockdowns anyway. In Belarus and countless other areas users most frequently simply migrate to VPNs to dodge the watchful eye of governments and their private sector allies like Sandvine (which, you'll recall, played a starring role in the early days of the net neutrality fights here in the States).

At the end of the day, experts are clear that internet crackdowns are the last resort of cowardly authoritarians, whose last option is to try and drive further unrest in the hopes it somehow plays into their hands:

"It’s often as a “last resort tactic” says Joss Wright, senior research fellow at the Oxford Internet Institute. But the strategy is also a crude one, he adds, noting that it can result in the spread of rumours and misinformation through other channels—with unpredictable consequences. Rydzak agrees: “It’s about creating an atmosphere of fear and uncertainty.” As a blunt demonstration of power, he adds, shutdowns may heighten the overall sense of chaos in a country or locality, creating a fluid situation that authorities may hope ultimately plays into their hands."

Except, again, there's no indication that's actually a successful tactic.

Filed Under: alexander lukashenko, belarus, free speech, internet shutdowns, protests
Companies: sandvine