Case 3:20-cv-05910-LB Document 59 Filed 09/19/20 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`San Francisco Division
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`U.S. WECHAT USERS ALLIANCE, et al.,
`Plaintiffs,
`
`v.
`
`DONALD J. TRUMP, et al.,
`Defendants.
`
`
`
`Case No. 20-cv-05910-LB
`
`
`ORDER GRANTING MOTION FOR
`PRELIMINARY INJUNCTION
`Re: ECF No. 17 and 48
`
`INTRODUCTION
`The plaintiffs are persons in the United States who use WeChat, a messaging, social-media,
`and mobile-payment app.1 In this lawsuit, they challenge the constitutionality of Executive Order
`13943, which prohibits (without defining) “transactions” relating to WeChat (to protect national
`security), effective September 20, 2020. The Executive Order directs the Secretary of Commerce
`to “identify” the “transactions” that are prohibited. On September 18, 2020, the Secretary issued
`an “Identification of Prohibited Transactions to Implement Executive Order 13943,” identifying
`the prohibited transactions.
`
`
`1 Compl. – ECF No. 1; First Am. Complaint (“FAC”) – ECF No. 49. The plaintiffs are U.S. WeChat
`Users Alliance, a nonprofit formed to challenge the WeChat Executive Order, and individual and
`business users. Id. at 7–9 (¶¶ 19–25). Citations refer to material in the Electronic Case File (“ECF”);
`pinpoint citations are to the ECF-generated page numbers at the top of documents.
`
`ORDER – No. 20-cv-05910-LB 
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`Case 3:20-cv-05910-LB Document 59 Filed 09/19/20 Page 2 of 22
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`In relevant part, the Secretary’s Identification generally bans (1) app stores from distributing
`the WeChat app or updates to it, (2) internet-hosting, content-delivery, and other internet-transit
`services that enable the functioning or optimization of the WeChat app, (3) use of the app’s code,
`functions, or services in the functioning of software or services, and (4) services from allowing the
`transfer of funds via the app to or from parties in the United States. More colloquially, the result is
`that consumers in the U.S. cannot download or update the WeChat app, use it to send or receive
`money, and — because U.S. support for the app by data hosting and content caching will be
`eliminated — the app, while perhaps technically available to existing U.S. users, likely will be
`useless to them. In public comments on September 18th, the Secretary said that “[f]or all practical
`purposes, [WeChat] will be shut down in the U.S. . . . as of midnight Monday.”2
`The plaintiffs claim that the ban (1) violates the First Amendment to the U.S. Constitution,
`(2) violates the Fifth Amendment, (3) violates the Religious Freedom Restoration Act, 42 U.S.C. §
`2000bb(1)(a), (4) was not a lawful exercise of the President’s and the Secretary’s authority under
`the International Economic Emergency Powers Act (“IEEPA”) — which allows the President to
`prohibit “transactions” in the interest of national security — because the IEEPA, 50 U.S.C. §
`1702(b)(1), does not allow them to regulate personal communications, and (5) violates the
`Administrative Procedures Act (“APA”) because the Secretary exceeded his authority under the
`IEEPA and should have promulgated the rule through the notice-and-comment rulemaking
`procedures in 5 U.S.C. § 553(b).3
`The plaintiffs moved for a preliminary injunction and contend that they are likely to succeed,
`and have presented serious questions, on the merits of the First Amendment claim (and satisfied
`the other elements for preliminary-injunctive relief). First, they contend, effectively banning
`WeChat — which serves as a virtual public square for the Chinese-speaking and Chinese-
`
`
`2 Ana Swanson & David McCabe, Trump to Ban TikTok and WeChat from U.S. App. Stores, N.Y.
`TIMES, Sept. 18, 2020, https://www.nytimes.com/2020/09/18/business/trump-tik-tok-wechat-ban.html
`(last visited Sept. 18, 2020), Ex. C to Bien Decl. – ECF No. 45-1 at 23. At the September 18 and 19,
`2020 hearings, the government did not contest that the court could consider — whether as a party
`admission or by judicial notice — the Secretary’s statement or other public officials’ statements.
`3 FAC – ECF No. 49.
`
`ORDER – No. 20-cv-05910-LB
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`2 
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`Northern District of California
`United States District Court
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`American community in the United States and is (as a practical matter) their only means of
`communication — forecloses meaningful access to communication in their community and
`thereby operates as a prior restraint on their right to free speech that does not survive strict
`scrutiny. Second, even if the prohibited transactions are content-neutral time-place-or-manner
`restrictions, they do not survive intermediate scrutiny because the complete ban is not narrowly
`tailored to address the government’s significant interest in national security.4 The plaintiffs also
`contend that they are likely to succeed on the merits of their claims that, by effectively shutting
`down U.S. users’ access to the WeChat app, (1) the President and the Secretary exceeded their
`authority under IEEPA, (2) the Secretary violated the APA, and (3) the Executive Order is void for
`vagueness (in part) because the government asserts conflicting interpretations of the prohibition’s
`effect.5 The government counters that the plaintiffs are not likely to succeed on the merits of their
`claims and have not established irreparable harm or that the balance of equities tips in their favor.6
`The court grants the motion on the ground that the plaintiffs have shown serious questions
`going to the merits of the First Amendment claim, the balance of hardships tips in the plaintiffs’
`favor, and the plaintiffs establish sufficiently the other elements for preliminary-injunctive relief.
`
`
`STATEMENT
`The next sections summarize (1) the plaintiffs’ (and the U.S. public’s) use of WeChat, (2) the
`relevant Executive Orders and agency action, and the plaintiffs’ contentions about the context of
`the action, (3) the government’s additional contentions about WeChat’s threat to national security,
`and (4) the case’s procedural history.7
`
`
`4 Id. at 27–29 (¶¶ 78–86); see Mot. – ECF No. 17 at 29–39; Reply – ECF No. 28 at 18–22; Renewed
`Mot. – ECF No. 48 at 3–5.
`5 Reply – ECF No. 28 at 17–23; see id. at 17–18 (narrowing the void-for-vagueness argument) (citing
`Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 534–35 (N.D. Cal. 2017)); Renewed Mot. – ECF
`No. 48 at 3–9; see id. at 8–9 (narrowing the void-for-vagueness argument further).
`6 Opp’n – ECF No. 22 at 28–50; Opp’n – ECF No. 51 at 4–14.
`7 Because this is a preliminary-injunction motion, the court overrules the government’s objections to
`the Alban and Chemerinsky declarations. Opp’n – ECF No. 22 at 51; cf. Flynt Distrib. Co. v. Harvey,
`734 F.2d 1389, 1394 (9th Cir. 1984) (“The trial court may give even inadmissible evidence some
`weight, when to do so serves the purpose of preventing irreparable harm”).
`
`ORDER – No. 20-cv-05910-LB
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`3 
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`Northern District of California
`United States District Court
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`Case 3:20-cv-05910-LB Document 59 Filed 09/19/20 Page 4 of 22
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`1. WeChat
`WeChat is a mobile app, developed by the Chinese company Tencent Holdings Ltd., with
`more than 1.2 billion users worldwide (including more than 100 million users outside of China
`and 19 million regular users in the U.S.).8 It allows its users to send messages, make video and
`audio calls, and send and receive money, and it also functions as a social-media platform.9
`The plaintiffs’ declarations establish that in the U.S., Chinese-American and Chinese-speaking
`WeChat users rely on the WeChat platforms to communicate, socialize, and engage in business,
`charitable, religious, medical-related, and political activities with family, friends, and colleagues
`(here in the U.S. and around the world).10 In the U.S., those in the Chinese-American, Chinese-
`speaking, and other communities rely on WeChat — as opposed to other platforms — as their
`“primary source of communication and commerce,” in part because western social-media
`platforms such as Facebook, WhatsApp, and Twitter are blocked in China, and WeChat often is
`the only way for its users to reach their networks in China.11 In addition, WeChat provides content
`(such as the news) in Chinese, which is critical for the many U.S. WeChat users with limited
`proficiency in English.12 WeChat also resonates culturally with its U.S.-based Chinese-speaking
`users because it integrates Chinese traditions into electronic transactions, such as sending gifts of
`money in “red envelopes.”13 Other platforms cannot practically replace WeChat because they lack
`the cultural relevance and practical interface with China and do not provide the integral connection
`
`
`8 Cohen Decl. – ECF No. 17-9 at 3 (¶ 6); Sun Decl. – ECF No. 17-11 at 10 (¶ 13), 11 (¶ 16); Maya
`Tribbitt, WeChat Users in the U.S. Fear Losing Family Links with Ban, BLOOMBERG, Aug. 11, 2020,
`https://www.bloombergquint.com/technology/wechat-users-in-the-u-s-fear-losing-family-links-with-
`ban, Ex. TT to Bien Decl. – ECF No. 17-12 at 351.
`9 Cohen Decl. – ECF No. 17-9 at 3 (¶ 6).
`10 Sun Decl. – ECF No. 17-11 at 11 (¶ 17); Cao Decl. – ECF No. 17-2 at 3–4 (¶¶ 11–20); Peng Decl. –
`ECF No. 17-5 at 2–3 (¶¶ 1–4, 7–16); Duan Decl. – ECF No. 17-4 at 2 (¶¶ 6, 9), 3 (¶¶ 14, 16).
`11 Cohen Decl. – ECF No. 17-9 at 4 (¶ 6); Sun Decl. – ECF No. 17-11 at 9 (¶ 12).
`12 Sun Decl. – ECF No. 17-11 at 10–11 (¶¶ 15, 18); Jeung Decl. – ECF No. 17-10 at 8 (¶ 25) (“Four
`out of ten Chinese in the United States — and six out of ten of Chinese who are foreign-born — are
`limited English proficient. This high proportion of our community cannot access English social medial
`platforms and require WeChat for their communications”).
`13 Sun Decl. – ECF No. 17-11 at 11 (¶ 16).
`
`ORDER – No. 20-cv-05910-LB
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`Case 3:20-cv-05910-LB Document 59 Filed 09/19/20 Page 5 of 22
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`that WeChat provides to the Chinese community.14 In short, WeChat is irreplaceable for its users
`in the U.S., particularly in the Chinese-speaking and Chinese-American community.15
`Plaintiff Elaine Peng illustrates these points when she describes her WeChat use for personal,
`political, and business communications, including running her nonprofit organization Mental
`Health Association for Chinese Communities, which provides mental-health education and
`services to the local Chinese community.16 WeChat is her primary tool for outreach and services.17
`For example, she has two WeChat groups: one for internal communications with her 110
`volunteers and one with 420 members (volunteers, recipients of services, and family members).18
`Many of the Chinese community members are not fluent in English, and WeChat is the only
`online tool that they rely on.19 Most of her 400-plus service recipients are elderly, deficient in
`English, or both.20 They suffer from mental-health issues that include depression, schizophrenia,
`bipolar disorder, and post-traumatic stress disorder.21 When she founded the nonprofit in 2013, she
`“went to great trouble” to teach the service recipients how to set up and use WeChat accounts, an
`effort that involved volunteers who expended “time, energy, and effort” to address the needs of
`clients who did not know how to use a smart phone.22 If her service recipients lose access to
`WeChat — “the only channel for them to receive services, educational material, and treatment
`resources” — it will be a “humanitarian crisis.”23 In “the last month or so,” she has tried to shift
`
`
`14 Cohen Decl. – ECF No. 17-9 at 7 (¶ 15); Sun Decl. – ECF No. 17-11 at 16–17 (¶¶ 32–33).
`15 Cohen Decl. – ECF No. 17-9 at 7 (¶ 15); Sun Decl. – ECF No. 17-11 at 16 (¶ 32).
`16 Peng Decl. – ECF No. 17-5 at 2–3 (¶¶ 1–4, 7–12); Peng Supp. Decl. – ECF No. 48-1 at 2 (¶ 3). The
`plaintiffs provide other examples too. See supra n.10 (collecting declarations).
`17 Peng Supp. Decl. – ECF No. 48-1 at 2 (¶ 4).
`18 Id..
`19 Id. (¶ 5).
`20 Id. (¶ 6).
`21 Id. (¶ 7).
`22 Id. (¶ 6).
`23 Id. (¶ 7).
`
`ORDER – No. 20-cv-05910-LB
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`Case 3:20-cv-05910-LB Document 59 Filed 09/19/20 Page 6 of 22
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`them to other apps, but those apps are in English, and the language barriers and lack of technical
`skills mean that most of the service recipients cannot be shifted to other apps.24
`Also, the nonprofit’s data — including service recipients’ names, addresses, other contact
`information, and medical information — are stored on WeChat.25 She sends out questionnaires to
`the recipients via WeChat, staff members conduct one-on-one counseling via WeChat, chat history
`helps staff members to evaluate and implement treatment, and she knows of no means to transfer
`this information — housed in WeChat’s “own system” — to another platform.26 Losing access to
`the platform means that she loses data and valuable information that took years to build and that
`forms the foundation for her nonprofit.27 As another example of WeChat’s utility, her organization
`used WeChat’s real-time location-sharing technology to prevent a suicide.28
`She also uses WeChat to organize teams to disseminate Chinese-language materials —
`educational information about the election and how to register to vote — to Chinese Americans
`who mostly do not speak English and use WeChat as their only messaging and social-media app.29
`
`2. Executive Orders and Agency Action
`2.1 Executive Order 13873 (May 15, 2019)
`On May 15, 2019, the President issued an Executive Order finding that “foreign adversaries
`are increasingly creating and exploiting vulnerabilities in information and communications
`technology and services, which store and communicate vast amounts of sensitive information,
`facilitate the digital economy, and support critical infrastructure and vital emergency services, in
`order to commit malicious cyber-enabled actions, including economic and industrial espionage
`against the United States and its people.” Executive Order 13873, Securing the Information and
`
`
`
`24 Id. (¶ 8).
`25 Id. at 3 (¶ 9).
`26 Id.
`27 Id.
`28 Id.
`29 Id. (¶ 10).
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`ORDER – No. 20-cv-05910-LB
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`Communications Technology and Services Supply Chain, 84 Fed. Reg. 22,689, 22,689 (the “ICTS
`Executive Order”). “The unrestricted acquisition or use in the United States of information and
`communications technology or services . . . supplied by persons owned by, controlled by, or
`subject to the jurisdiction or direction of foreign adversaries augments the ability of foreign
`adversaries to create and exploit vulnerabilities in information and communications technology or
`services, with potentially catastrophic effects, and thereby constitutes an unusual and
`extraordinary threat to the national security, foreign policy, and economy of the United States.” Id.
`The President invoked his authority under the “Constitution and laws of the United States,”
`including IEEPA and the National Emergencies Act (“NEA”), to declare a national emergency
`with respect to this threat. Id. He then prohibited transactions with foreign countries or foreign
`nationals that pose “an undue risk of sabotage to or subversion” of the “maintenance of
`information and communications technology or services in the United States” or “otherwise pose[]
`an unacceptable risk” to the national security. Id. at 22,690. He directed the Secretary of
`Commerce — “in consultation with” the Secretaries of the Treasury, State, Defense, and
`Homeland Security and the Attorney General, the U.S. Trade Representative, the Director of
`National Intelligence, the Chair of the FCC, and other appropriate officials — to identify
`transactions that pose an undue or unacceptable risk to the national security of the United States
`and to report to him about the threats from “foreign adversaries.” Id.at 22,690-92. The government
`references reports to the President from the Department of Homeland Security (mapping the
`vulnerabilities of the information-and-communications-technology framework “to assist
`identification of vulnerabilities”) and the Office of the Director of National Intelligence (in the
`form of a “classified initial threat assessment.”)30
`On May 13, 2020, the President renewed the declaration of emergency in the ICTS Executive
`Order. 85 Fed. Reg. 29,321. On May 20, 2020, he presented a report to Congress “outlining a set
`of broad strategies in relation to the U.S.’s foreign policy with China.”31
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`30 Opp’n – ECF No. 22 at 23.
`31 Id. at 23–24 (citing U.S. Strategic Approach to PRC (May 20, 2020), Ex. 22 to Orloff Decl. – ECF
`No. 22-22 at 2–17).
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`ORDER – No. 20-cv-05910-LB
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`7 
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`Northern District of California
`United States District Court
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`Case 3:20-cv-05910-LB Document 59 Filed 09/19/20 Page 8 of 22
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`The plaintiffs do not challenge the ICTS Executive Order: “Plaintiffs are not challenging the
`validity of Executive Order 13873, the President’s May 15, 2019 declaration of a national
`emergency that is a necessary legal basis for the President to even issue the WeChat [Executive
`Order]; rather, Plaintiffs challenge the validity only of the WeChat [Executive Order].”32
`2.2 Executive Order 13943 (August 6, 2020)
`On August 6, 2020, President Trump issued Executive Order 13943, “Addressing the Threat
`Posed by WeChat, and Taking Additional Steps to Address the National Emergency with Respect
`to the Information and Communication Technology and Services Supply Chain.” 85 Fed. Reg.
`48,641 (the “WeChat Executive Order”). In it, he said that “additional steps must be taken to deal
`with the national emergency . . . declared in [the ICTS Executive Order]” because “the spread in
`the United States of mobile applications developed and owned by companies in the People’s
`Republic of China [] continues to threaten the national security, foreign policy, and economy of
`the United States.” Id. at 48,641. Further action was needed to address the threat that WeChat
`posed to the national security, foreign policy, and economy of the U.S. because WeChat’s
`“automatically captur[ing] vast swaths of information from its [over one billion] users” through its
`messaging, social-media, and electronic-payment applications “threatens to allow the Chinese
`Communist Party access to Americans’ personal and proprietary information.” Id. He cited a
`researcher’s reported discovery of “a Chinese database containing billions of WeChat messages
`sent from users in not only China but also the United States, Taiwan, South Korea, and Australia.”
`Id. (The plaintiffs counter that an investigation revealed that this was a data breach.33) He said that
`WeChat “reportedly censors content that the Chinese Communist Party deems politically
`sensitive” and may “be used for disinformation campaigns that benefit the Chinese Communist
`Party,” and he noted that other countries, including Australia and India, were beginning to restrict
`or ban the use of WeChat. Id. (The plaintiffs counter that Australia limited only its national-
`defense agency’s employees’ use of WeChat, and India’s restriction was tied to a border dispute
`
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`32 Reply – ECF No. 28 at 12–13 (emphasis in original).
`33 Mot. – ECF No. 17 at 20.
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`ORDER – No. 20-cv-05910-LB
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`with China.34) As a result, “[t]he United States must take aggressive action against the owner of
`WeChat [Tencent] to protect our national security.” Id.
`In relevant part, the Order directed the following:
`Section 1. (a) The following actions shall be prohibited beginning 45 days after the date of
`this order, to the extent permitted under applicable law: any transaction that is related to
`WeChat by any person, or with respect to any property, subject to the jurisdiction of the
`United States, with Tencent Holdings Ltd. . . . or any subsidiary of that entity, as identified
`by the Secretary of Commerce (Secretary) under section 1(c) of this order.
`. . .
`(c) 45 days after the date of this order, the Secretary [of Commerce] shall identify the
`transactions subject to subsection (a) of this section.
`. . .
`Section 3. For those persons who might have a constitutional presence in the United States,
`I [the President] find that because of the ability to transfer funds or other assets
`instantaneously, prior notice to such persons of measures to be taken pursuant to section 1
`of this order would render those measures ineffectual. I therefore determine that for these
`measures to be effective in addressing the national emergency declared in Executive Order
`13873, there need be no prior notice of an identification made pursuant to section 1(c) of
`this order.
`
`Id. at 48,641–42. Thus, under the Order, effective September 20, 2020, transactions related to
`WeChat — as defined by the Secretary in the Identification of Prohibited Transactions — are
`banned.
`2.3 The President’s Statements Before and After the WeChat Order
`The plaintiffs point to the President’s anti-Chinese statements around the time he issued the
`WeChat Order, including his remarks about China’s responsibility for the COVID-19 pandemic
`(including calling it the “China virus,” the “China flu,” and similar names), his reference to
`China’s owning the United States if he is not reelected, and other mocking conduct that the
`plaintiffs characterize as showing racial animist and aimed at bolstering the President’s reelection
`campaign.35
`
`
`34 Id. at 21.
`35 Id. at 21 (citing Interviews and Comments, Exs. E–P to Bien Decl. – ECF No. 17-12 at 30–100).
`
`
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`ORDER – No. 20-cv-05910-LB
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`9 
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`Northern District of California
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`Case 3:20-cv-05910-LB Document 59 Filed 09/19/20 Page 10 of 22
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`2.4 The Secretary of Commerce’s Implementation of the WeChat Executive Order
`On September 18, 2020, the Secretary issued the Identification of Prohibited Transactions,
`which set forth the following prohibited transactions:
`1. Any provision of services to distribute or maintain the WeChat mobile application,
`constituent code, or mobile application updates through an online mobile application store,
`or any online marketplace where mobile users within the land or maritime borders of the
`United States and its territories may download or update applications for use on their
`mobile devices;
`2. Any provision of internet hosting services enabling the functioning or optimization
`of the WeChat mobile application, within the land and maritime borders of the United
`States and its territories;
`3. Any provision of content delivery services enabling the functioning or optimization
`of the WeChat mobile application, within the land and maritime borders of the United
`States and its territories;
`4. Any provision of directly contracted or arranged internet transit or peering services
`enabling the functioning or optimization of the WeChat mobile application, within the land
`and maritime borders of the United States and its territories;
`5. Any provision of services through the WeChat mobile application for the purpose of
`transferring funds or processing payments to or from parties within the land or maritime
`borders of the United States and its territories;
`6. Any utilization of the WeChat mobile application’s constituent code, functions, or
`services in the functioning of software or services developed and/or accessible within the
`land and maritime borders of the United States and its territories; or
`7. Any other transaction that is related to WeChat by any person, or with respect to any
`property, subject to the jurisdiction of the United States, with Tencent Holdings Ltd., or
`any subsidiary of that entity, as may be identified at a future date under the authority
`delegated under Executive Order 13943.
`The identified prohibitions herein only apply to the parties to business-to-business
`transactions, and apply except to the extent provided by statutes, or in regulations, orders,
`directives, or licenses that may be issued pursuant to Executive Order 13943, and
`notwithstanding any contract entered into or any license or permit granted before the date
`of Executive Order 13943. Any other transaction with Tencent Holdings Ltd. or its
`subsidiaries is permitted under Executive Order 13943, as implemented by the Secretary,
`unless identified as prohibited or otherwise contrary to law.36
`
`
`36 Notice – ECF No. 28 at 2–3; Secretary’s Identification of Prohibited Transactions, Ex. A to Bien
`Decl. – ECF No. 45-1 at 10–11.
`
`ORDER – No. 20-cv-05910-LB
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`The plaintiffs cite media reports, including the Secretary’s remarks (discussed above) that the
`prohibitions will effectively shut down WeChat for U.S. users.37
`
`3. The Government’s Additional Contentions About National Security
`The government describes the threat to national security posed by China’s activities in the
`information-and-communications technology and services sectors.38
`For example, in 2010, bipartisan legislators wrote to the Chairman of the FCC asking for
`information about the security of U.S. telecommunication networks in the context of a proposed
`deal involving Sprint, Cricket, Huawei, and ZTE. In the letter, they observed that Huawei and ZTE
`— two companies with significant ties to the Chinese government — were “aggressively seeking
`to supply sensitive equipment for U.S. telecommunications infrastructure” and to service U.S.
`networks.39 In 2011, the House Permanent Select Committee on Intelligence launched an
`investigation focused on Huawei and ZTE but expressed the broader concern that Chinese
`telecommunication companies with suspected ties to the Chinese government could provide
`opportunities for “espionage for a nation-state already well-known for perpetuating cyber-attacks
`and espionage on the United States” and could allow China to exert pressure or control over
`critical infrastructure or give it access to sensitive government and proprietary information,
`resulting in unfair diplomatic or commercial advantage over the U.S.40 The government cites other
`contemporaneous reports regarding similar national-security concerns given the close ties that the
`so-called private companies maintained with the Chinese government.41
`Then, the government identifies the risk that reliance on mobile technologies poses to national
`security, citing reports about the threat that results from China’s strategic insertion of its
`
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`37 Response to Notice – ECF No. 45 at 2–3 (also characterizing the agency’s remarks as inconsistent).
`38 Opp’n – ECF No. 22 at 15–22.
`39 Id. at 15 (citing Congressional Leaders Cite Telecommunications Concerns With Firms That Have
`Ties With Chinese Government (Oct. 19, 2010), Ex. 1 to Orloff Decl. – ECF No. 22-1 at 3).
`40 Id. at 15–16 (citing Investigative Rep. on the U.S. Nat’l Sec. Issues Posed by Chinese Telecomms.
`Cos. Huawei and ZTE (Oct. 8, 2012), Ex. 2 to Orloff Decl. – ECF No. 22-2 at 6–8).
`41 Id. at 16 (collecting reports).
`
`ORDER – No. 20-cv-05910-LB
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`Case 3:20-cv-05910-LB Document 59 Filed 09/19/20 Page 12 of 22
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`companies and products into networks and markets outside of China.42 The government describes
`the vulnerabilities that result from, for example, 5G cellular networks.43 It points to government-
`contracting decisions — embodied in the 2019 defense-appropriations bill — prohibiting
`government agencies and contractors from using telecommunications or video-surveillance
`equipment or services produced by ZTE, Huawei, and “other identified Chinese entities.”44
`Finally, the government cited reports identifying Tencent and WeChat as a growing threat and
`citing an Australian nonpartisan think tank’s report (1) discussing the Chinese government’s
`“highly strategic foreign policy” to become “the strongest voice in cyberspace,” (2) identifying
`Tencent as “one of a handful of Chinese companies ‘reported to have the highest proportion of
`internal [Chinese Communist Party committees] within the business sector,’” and (3) discussing
`the attendant risks for censorship in China, the dissemination of propaganda in the Chinese
`diaspora, and the potential to facilitate surveillance.45 It cites other reports echoing these
`concerns.46
`
`4. Procedural History
`The plaintiffs filed this lawsuit challenging the WeChat Executive Order on August 21, 2020,
`before the Secretary identified the prohibited transactions.47 They moved for a preliminary
`injunction, advancing as a lead argument (refined in their reply brief) that the Executive Order was
`void for vagueness under the Fifth Amendment because (1) it did not define “transaction,” and (2)
`the Secretary’s definition would be issued on September 20, 2020, on the same day that the Order
`authorized enforcement, thereby denying them notice of prohibited criminal (and at least by
`
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`42 Id. at 16–17 (collecting and citing reports).
`43 Id. at 17 (collecting and citing reports).
`44 Id. at 18–19 (collecting and citing reports).
`45 Id. at 19–20 (citing and quoting Mapping China’s Tech. Giants, Australian Strategic Policy Inst.,
`Ex. 14 to Orloff Decl. – ECF No. 22-14 at 18).
`46 Id. at 21–22 (collecting and citing reports).
`47 Compl. – ECF No. 1.
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`ORDER – No. 20-cv-05910-LB
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`implication, civil) conduct.48 They then made their First Amendment and IEEPA arguments.49 The
`government opposed the motion on grounds that included prudential ripeness and justiciability
`because the Executive Order was not self-executing (and instead required the Secretary to define
`prohibited acts), and the Secretary had not identified the prohibited transactions yet.50 Then, on
`September 16, 2020, the day before the preliminary-injunction hearing, the government said the
`following:
`At present, activity involving the WeChat app is not prohibited. While the Department of
`Commerce continues to review a range of transactions, including those that could directly
`or indirectly impact use of the WeChat app, we can provide assurances that the Secretary
`does not intend to take actions that would target persons or groups whose only connection
`with WeChat is their use or downloading of the app to convey personal or business
`information between users, or otherwise define the relevant transactions in such a way that
`would impose criminal or civil liability on such users. In other words, while use of the app
`for such communications could be directly or indirectly impaired through measures
`targeted at other transactions, use and downloading of the app for this limited purpose will
`not be a defined transaction, and such users will not be targeted or subject to penalties.51
`On September 18, 2020, the Secretary identified the prohibite