Guest Post: Minyao Wang on “Is Banning WeChat Warranted?”

Today we have an op-ed about a ‘ripped from the headlines’ topic: the recent executive orders that essentially shut down the social media messaging app WeChat (and also TikTok ).  We are very pleased that our expert commentator is a 2008 Duke Law grad, Minyao Wang.  (Actually, he’s what we affectionately call a ‘double Dukie’ as he also attended Duke as an undergrad!)

Minyao is writing in his personal capacity and as you will see, he has strong opinions about WeChat.  He makes his argument by cogently laying out his view of the facts and the law, and does so in a way that is especially ‘accessible’ to everyone, including those who may not be familiar with the app, or the issues of law and national security being raised.  I learned a lot – and I think you will too!  Here’s Minyao:

Is Banning WeChat Warranted?

by Minyao Wang

On August 6, President Trump issued two executive orders to shut down TikTok and WeChat.  The orders cited to the misappropriation of user data at the behest of the Chinese government.  Invoking his authority under the International Emergency Economic Powers Act of 1977, (“IEEPA”), 50 U.S.C. § 1701 et seq., the President directed that after 45-days, “transactions” involving the two applications will be prohibited.[1]

TikTok and its Chinese parent have in response sued the Trump administration.[2]  Given TikTok’s significant market value, the most likely endgame would be a sale to an American company.  Its litigation is widely seen as a way to gain pricing leverage over potential suitors.  But WeChat is a different story.

There will not be a white-knight purchaser because a spin off U.S.-only version of WeChat is not financially viable.  Therefore, the WeChat ban is more likely to be extensively litigated.  Indeed, on August 21, a lawsuit was filed by a newly formed and self-styled “alliance” of WeChat users as lead plaintiff, alleging constitutional and statutory violations.

In a democracy, banning a software application is not a step to be taken lightly.  And banning WeChat will seriously inconvenience individuals that use it to keep in touch with people in China.[3]  But the unusual national security challenge posed by WeChat, which is a raw tool of Chinese economic espionage and influence operations, renders its exclusion from the U.S. necessary.  The ban also rests on solid legal foundation.  

What Does WeChat Do?

WeChat has more than one billion users and is indispensable to daily life in China.  It is the Chinese combination of WhatsApp, Facebook, YouTube, Instagram, Twitter and Apple Pay.  Chinese people use it to chat and message with friends, family and colleagues; organize social events; read the news; and order and pay for food, products and services.  Government agencies, corporations, and social organizations set up public accounts on WeChat to distribute information.  All WeChat postings are subject to extensive censorship. 

To be candid, WeChat is a clumsy social media platform.  The main reason that it took off in China is the exclusion of foreign social media applications from that country.  This exclusion in turn stems from the Chinese Communist Party’s fears of a new Tiananmen Square protest especially due to the critical role played by social media in the popular uprisings that topped multiple dictatorships during the Arab Spring.

There is no better proof of WeChat’s lack of competitiveness than its failure to catch on elsewhere in Asia.  In the U.S., WeChat is used only by the Chinese diaspora and a very few others with personal connections to China.  Indeed, even second-generation Chinese Americans overwhelmingly shun WeChat, viewing it as a symbol of the totalitarian regime from which their parents escaped.

WeChat Is Nefarious

WeChat presents a clear national security threat.  The Chinese government is engaged in a worldwide campaign to steal intellectual property.  Multiple investigations and prosecutions have demonstrated that Chinese suspects use WeChat as the primary means of communications.

Because the servers for WeChat are located in China, it is often impossible for American law enforcement to track those messages.  It is also well documented that the Chinese government uses WeChat to harass ethnic Chinese living in the United States, including American citizens, who undertake political activities that Beijing considers threatening.  This kind of Chinese government misconduct represents an unacceptable encroachment upon American sovereignty and is a good reason alone to ban the application.       

Leaving aside these egregious situations, for its relatively small universe of users in the U.S., WeChat creates a cocoon that stifles their integration into American life.  The WeChat ecosystem is such that many users rely on it as the only source of news and information, as if they were still in China. 

As Yaqiu Wang, a Chinese-born staff member at Human Rights Watch, put it, “the Chinese government is able to control a significant portion of the information overseas Chinese receive, even outside its borders.”  According to Ms. Wang, “WeChat is blurring the line between ‘Chinese in China’ and ‘the Chinese diaspora,’ making many overseas Chinese people — who mostly live in free countries — think and act like the people who live under the rule of the Communist Party.”

An Australian academic study which compared WeChat news sources against an independent Chinese-language source in Australia has unsurprisingly concluded that only the latter “serve[s] to give readers a sense of informed civic inclusion and democratic participation in Australian society.”  This “under the radar” importation of Chinese censorship should be deeply troubling to Americans.  

To start with, there are about 400,000 Chinese students on American campuses.  We do them a serious disservice if they cannot get a true taste of life in a free society.  It is also not conducive to fostering the democratization of China.  In the 1980’s, students who returned from the United States helped propel South Korea and Taiwan into the wealthy democracies that they are today. 

Yet many Chinese students enrolled in the United States are—unlike the Tiananmen cohort—incapable of appreciating democratic values even after living here for years: a sad testimonial to the efficacy of Chinese indoctrination, of which WeChat is now a central part.  We owe it to these students to expose them to political alternatives for their country.  Weaning Chinese students off WeChat propaganda is the right step that could potentially alter the future trajectory of China. 

Aside from its impacts on transient Chinese visitors, there is a far more urgent basis to curtail the use of WeChat.  China is also the largest source country for legal immigration to the United States.  With respect to those future American citizens, we as a country have a compelling responsibility to end their WeChat indoctrination upon their admission. 

We simply cannot permit a segment of our citizenry to be under the intellectual sway of an authoritarian regime. Chinese influence operations, abetted mainly by WeChat, have so alarmed the government of Australia that it is introducing free classes to teach new immigrants basic democratic values.

To underscore Ms. Wang’s point, the WeChat newsfeed endlessly sings the praises of the Chinese Communist Party.  On the recent 70^th anniversary of the outbreak of the Korean War, WeChat was replete with references to how South Korea began that conflict by invading the North, the same false story taught in Chinese schools. 

Last summer I discussed the historic Hong Kong protests with Chinese-born high school students in New York City.  All they knew was to spit back the Communist narrative gleaned from WeChat.  I could have had the same conversation in Shanghai with a local high school student.  WeChat’s deep penetration into the Chinese-American community deprives its members of access to sources of information critical to developing the skills necessary for long-term success in the American economy and as intelligent voters in the American democracy. 

Patriotic assimilation occurs “when a newcomer essentially adopts American civic values and the American heritage as his or her own.”  As a nation of immigrants bound together not by bloodlines but by a shared abiding commitment to the democratic process, such assimilation is central to the American national identity.  WeChat endangers that for young Chinese immigrants who will spend their lives here.  That is not in their personal interest or in our national interest.   

The Legal Basis for Banning WeChat   

IEEPA gives the President sweeping authority to address “any unusual and extraordinary threat to the United States which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.”  50 U.S.C. § 1701(a).  After declaring a national emergency, the President may “investigate,” “block,” “regulate,” “nullify,” “compel,” or “prohibit” the “importation,” “transfer,” “transactions involving,” or “acquisition” of “property in which any foreign country or a national thereof has any interest.”  50 U.S.C. § 1702(a)(1)(B). 

IEEPA has been invoked more than 50 times since its enactment.  Courts have routinely upheld IEEPA against First Amendment free speech and Fifth Amendment due process challenges.  See, e.g., U.S. v. Al-Arian, 308 F.Supp.2d 1322 (M.D. Fla. 2004) (First Amendment); Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) (Fifth Amendment).       

Against this backdrop, the legal challenges to the WeChat ban are almost certainly doomed to fail.  No court will second-guess President Trump’s determination that WeChat is a national security threat. 

Such foreign policy determinations belong to the President, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), subject to appropriate Congressional oversight.  The Chinese Communist Party does not have a First Amendment right to speak.  Nor do people located in China. See 32 County Sovereignty Comm. v. Dep’t of State, 292 F.3d 797, 799 (D.C. Cir. 2002) (foreigners lacking substantial connections to the U.S. have no constitutional protection).  

Moreover, banning WeChat does not infringe the freedom of speech of its users in the United States.  In First Amendment lingo, the ban is viewpoint neutral; no one would be able to use WeChat, regardless of what he or she wanted to say. 

Under Supreme Court precedent, a restriction that does not discriminate on the basis of viewpoint is valid as long as it serves a legitimate interest and is not substantially broader than necessary.  Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804-05 (1984) (upholding city ordinance prohibiting the posting of signs, including for political candidates, on utility poles, cross wires, and other structures on public property).      

It is also settled law that our government has the sovereign responsibility to “safeguard the United States from foreign influence.”  Moving Phones Partnership LP v. FCC, 998 F. 2d 1051,1055 (D.C. Cir. 1993) (emphasis added).  In that case, the court upheld the statutory restrictions on foreign ownership of broadcast stations. 

In this context, it is permissible to evaluate the character of the foreign government in question.  When the Federal Communications Commission granted a waiver to permit News Corporation to own TV stations in the U.S., it noted that its then country of incorporation, Australia, was a democracy.  Indeed, the FCC is already seriously policing negative Chinese influence on the nation’s airwaves.  Two months ago, it ordered a Mandarin-language radio station in Los Angeles that regurgitated Chinese propaganda to immediately close.

IEEPA does state that the President cannot ban “any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value.”  50 U.S.C. § 1702(b)(1).  Counsel challenging the WeChat ban will certainly invoke this language.  Indeed, this may be the challengers’ most potent legal point. 

Because social media applications did not exist in 1977, it is impossible to know whether Congress intended to include them in this carve out.  But that may be beside the point because every time a message is transmitted on WeChat, the software captures a vast swath of user information, which certainly constitutes a transfer of value.  See, e.g., Bernstein v. U.S. Dep’t. of State, 974 F. Supp. 1288, 1301 (N.D. Cal. 1997) (“Indeed, there are potentially billions of dollars at stake in the export of commercial encryption software.”).

Conclusion

During the Cold War, the United States would not have permitted the Communist Party of Poland to own a TV station in Chicago to proselytize that city’s Polish American community.  The same principle applies to WeChat to support its exclusion.  China, ruled by a Communist dictatorship that ignores norms of acceptable behavior, presents serious policy difficulties to the United States and its allies.

The banning of WeChat appropriately safeguards U.S. interests and is consistent with IEEPA.  As Justice Robert Jackson said, when the President acts with Congressional authorization, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636-637 (1952) (Jackson, J. concurring); see also Dames & Moore v. Regan, 453 U.S. 654, 674 (1981) (interpreting IEEPA in light of Youngstown).           

Notes

[1] The orders did not define transactions.  Based on prior practices, including the wording of an executive order signed in 2019 to specifically address electronic data security, it is likely to be broadly construed to include the “acquisition, importation, transfer, installation, dealing in, or use of” of TikTok and WeChat.  Violations of a presidential order issued under the IEEPA carry stiff criminal penalties, including up to 20 years in a federal prison.  50 U.S.C. § 1705(c).

[2] The irony of a Chinese company suing in a foreign court for freedom of speech, due process and separation of powers cannot go without comment.  The Chinese labor camps are overpopulated with brave prisoners of conscience who tried to enact those very principles in China.

[3] To be clear, if WeChat were banned in the United States, people would remain free to use telephone and email to communicate with people in China.

About the author:

Wang grew up in Fort Lauderdale, Florida.  He is a 2008 graduate of Duke Law School and a 2003 graduate of Duke University.  Minyao counts the National Security course then taught by Professor Scott Silliman as one of his favorite classes ever.  He has been a commercial litigator in New York City, focusing on complex bankruptcy litigations and cross-border disputes.  Minyao is a former clerk to Carla E. Craig, the Chief Bankruptcy Judge for the Eastern District of New York.

In addition to his commercial law practice, Minyao has done pro bono work for NGOs related to the protection of human rights and the rule of law.  He also previously advised the New York City public school system on the integration of immigrant students from East Asia.  Minyao is fluent in written and spoken Chinese.

Mr. Wang emphasizes that he is speaking in this essay in his personal capacity.  The views expressed by guest authors are their own and do not necessarily reflect those of Lawfire^®, the Center on Law, Ethics and National Security, Duke University or any other person or entity.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!