throbber
Citizen PowerInitiatives for China, and Doe__|Case No.2 1 CV3751 69
`13
`Plaintiffs 1-6, the latter individually and on
`behalf of all others similarly situated,
`
`E-FILED
`1/8/2021 5:01 PM
`
`SuperiorCourt of CA
`County of Santa Clara
`21CV375169
`Reviewed By: R. Walker
`
`NORTH RIVER LAW PLLC
`Times Wang (State Bar No. 281077)
`twang@northriverlaw.com
`1300 I Street NW, Suite 400E
`Washington, DC 20005
`Tel: (202) 838-6489
`
`SCHONBRUN SEPLOW HARRIS
`HOFFMAN & ZELDES LLP
`Paul L. Hoffman (State Bar No. 71244)
`hoffpaul@aol.com
`200 Pier Avenue, #226
`Hermosa Beach, CA 90245
`Tel: (310) 396-0731
`
`Counselfor Plaintiffs and the proposed Class
`(Additional counsellisted on signature page)
`
`SUPERIOR COURT FOR THE STATE OF CALIFORNIA
`
`COUNTY OF SANTA CLARA
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`
`
`CLASS ACTION COMPLAINT FOR
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`(1) Declaratory and injunctiverelief that
`certain practices and contractual
`provisions are unlawful and
`unenforceable
`(2) Violations of the California
`constitutional right to privacy
`(3) Violations of the California
`constitutional right to free speech
`(4) Violations of the California
`constitutional right to equal protection
`Intrusion on seclusion
`(5)
`(6) Conversion and trespass to chattels
`(7)
`Intentional infliction of emotional
`distress
`(8) Negligence
`(9) Unjust enrichment
`(10) Violations of the California Unfair
`Competition Law
`(11) Violations of the California Invasion of
`Privacy Act
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`DEMAND FOR JURY TRIAL
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`AMOUNT DEMANDED EXCEEDS
`$25,000
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`Plaintiffs,
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`V.
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`Tencent America LLC and Tencent
`International Service Pte. Ltd.,
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`Defendants.
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`TABLE OF CONTENTS
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`NATURE OF THE ACTION..u...ccccccsssessescesssessrsesseesesesncensncaesacsecscsveseessacsesessssesveessseesavsnsaesseeeeees 1
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`Il.
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`JURISDICTION AND VENUEuu. csesseseseesecssseessecessecvssecesareassecusseeneansassesnsneenecnssseeeseeeaneenenees 3
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`ILL.
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`PARTIES o.oeeseesecsessssessesessssessesessesssessssnsescesescsusacsneeceseseeseassnsaesesssuceseaeaesatsesassesacansassasessesaeeneaeeneaseeesees 3
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`A.
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`Plaintiffs oe seeseseeveesseeeesesescesevescevescncseeessseseevesssesevsesseseencesacesesescaeeseseseavensesacareeseseeeeseers 3
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`1.
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`Citizen PowerInitiatives for China... essesseseceesecseseeessecesseeeeseeneaneesseenenee 3
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`Doe Plaintiff Looe cece ceseseeecseseseescseseseescaesesseseaesesscseeeessseseeeeaeseneesneassseeeneaeeas 4
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`Doe Plaintiff2 eee seesseseeeeseeesesescseesssescarsesseseaveesseseeveseseseessecsesteesseaseneeseeaeess 4
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`Doe Plaintiff 3 ce eeseesssseesseseenececsseecsnescnssseseensansassesscseeneersnseecsesecneereneeeeanseenss 4
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`Doe Plaintiff 4 occ ceecceesesessessseescseseeecscsesesseneaesacscseeeeasseseetsasseneeesneasseeeeneaeees 4
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`Doe Plaintiff 5eee seesseseesessseeeenessneescseseersecsescaveesseseeveseeeseessecsrsteesseaseneetseneess 4
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`Doe Plaintiff 6 oe eseseesssseecseseenececsseecsnescsesseseensareassessesseneesnseecsesecnsereaeeeearseenss 4
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`B.
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`Defendants ........cecceccceesseeseeseseseseeseseeessescaestssescaesneacseccneacseeeeaeasseeesscaenesesseaesteesneaseteeeneataeaes 5
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`1.
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`2.
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`Tencent America LLC 000... eesseesesesceeeseneerereseneeneresenestensassessessassesnesseceeseeseeseeres 5
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`Tencent International Service Pte. Ltd... seseseeecsssseessecesseceseeeeanesseenenee 5
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`IV.
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`STATEMENTOF FACTS o0oe.cecccecscsescsssessssesessssessesessesessesessesnesesesseeneansacsesassseeaeeaesesseeeeesaeeasaneateneess 5
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`A.
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`WeChatis the most popular and ubiquitous social media application in the
`global Chinese-speaking community and maintains an effective monopoly
`on electronic communications in that community, including in California.............. 5
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`WeChatis censored and surveilled in California. ooo. ccceseeceseeceeseescescesseseveceeereeees 8
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`in California harm
`WeChat’s censorship and surveillance practices
`California WeChat users 1 Many WAYS. .........:.csseseesseceseeseeeeeseeesteesseseseeneaeseeeeneaeaeneenes 8
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`The challenged practices and provisions have inflicted significant harm on
`Doe Plaintiffs. oo... cece csessesesseseseeeeteseensesecseaneacecseeseseseseeesesesesesseseeesesaeseeeseeaeanensesseaneaes 10
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`1.
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`2.
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`3.
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`4.
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`5.
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`Doe Plaintiff 1 oe eee eeeeseseeneeseeeeenceceesssscerevsecscseeeecscseeveasseseesearseseneaseeeseeeesees 10
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`Doe Plaintiff 2 ee ceseesessesssesesesseneetsscenesesessesssneensersssessessensersaesesnseesseeneerensass 12
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`Doe Plaintiff 3 i.e ceessesesseseseseseeseseeesscsesneacscseaneacscseeeasseseeeacseseseeseaeeeeeeneess 13
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`Doe Plaintiff 4 oo... eee seesseseeneeseeeeenceceeesssceeeveecscereneecscseeveasseseessarseseeneaseeeseeeesees 15
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`Doe Plaintiff 5 ce eecseessssssecesesseneeesscenssesessesssneeneersessesssnsensersaesesneeesseeeserensase 16
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`E.
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`F,
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`I.
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`6.
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`Doe Plaintiff 6 occ ccc cecseceseccssseeecesccscesessccecseccsassasconcsecsscensensesscssesacsassaeeeneneaes 17
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`Researchers at The Citizen Lab have conducted experiments proving that
`California WeChat users’ communications are censored and surveilled, and
`that WeChatuses those communicationsto “improve” WeChat’s censorship
`and surveillance apparatus. .........cccccssscsessecsssssssesseseseseseocsesesesesssecsesserssssersessessesseseeeseesesees 17
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`A white-hat hacker has uncovered evidence that California WeChat user
`data and communications are made available to the Party-state.«0.0.0... 19
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`Tencent’s censorship and surveillance practices have negative emotional,
`psychological, and behavioral consequences on California WeChatuserts............. 22
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`Tencent broadly denies that the challenged practices OCCUL.
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`....cceuseseseenseeeeseeeneee 24
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`Tencent’s “WeChat Help Center” makes a slew of privacy-related
`ASSUIANCES. 0... eeesseeteteeneesecesersenescassceeecssecassessenssssassevsenesscosscueesecesocsasacsavesseestaveeeeeneneeaseees 25
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`WeChat’s privacy policy and terms of service exacerbate the harms
`associated with the challenged practices, ....cccsesesseessesssessssesssesessssssssssatsessensassessenees 26
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`1.
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`2.
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`3.
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`4,
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`WeChat’s privacy policy and terms of service are unclear as to
`whetherthe challenged practices are permitted or prohibited... 26
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`to use
`WeChat’s terms of service relating to Tencent’s right
`California WeChat user data and communications to improve
`WeChat’s Offerings. ..........sssesesescsesssssssesesssseeessscseoesescseecesssereseevssesevessaeaeesssesenees28
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`WeChat’s terms of service purport to require California WeChat
`users to give up a host of legal rights and remedies. .............eeeseeeeteeeeeeeees28
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`WeChat’s terms of service purport to subject California WeChat
`users who happen to be PRCcitizens to even more onerous terms of
`SOLVICE. oosesessesesscsecesssesesesscsenececseaesscucseseesescscaesneseneaecacaeseessseasseeeaeassesnsseaeetsesseeseateete 30
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`V.
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`CPIFC HAS STANDING TO BRING THESE CLAIMSG. ......ccesessssssessssetsseseeseseresesenseneneseess 30
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`A.
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`B.
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`CPIFC’s mission is to help Chinese people defend their human rights and
`to advance a peaceful transition to democracy in the PRC, ...... ee eeseeeeeeeseeeeees 30
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`Tencent’s policies and practices, including those challenged here, have
`significantly hampered CPIFC’S mission...........:.cssscsessscsesseeesssesesssesesssesesssrsesnensessesees 31
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`1.
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`2.
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`3.
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`WeChat’s censorship and surveillance practices and policies
`frustrate CPIFC’s ability to communicate with Chinese people
`inside and outside the PRC.oes csessssesceeseeseseeeescsesteeeneeesteeeseeeeteeeneetseaes 32
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`The personal experience of CPIFC’s founderis illustrative. .....0.00.0 te 33
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`The challenged provisions also harm CPIFC.........ucssseseesesseseesesseessenenseeseeses 34
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`Cc,
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`The requested relief would redress the harms experienced by CPIFC..........0..0.0..+. 39
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`VI.
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`CLASS ACTION ALLEGATIONS 00.0... cceecceesessscesessescessenescesesessrsssncsveseevsersessesossneveeresseesneanenes 41
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`VIL.
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`STATUTE OF LIMITATIONS00. eee eeeceseeeeeeaeseeeeneasseeeeseaseeeeeaeansnsasseessnsaseseneneataneeseata 43
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`VI.
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`CLAIMS FOR RELIEF 0.0. eceseeseesessescsesnessesesvenseveavenssvevenveveevsnssvensneensevsasevsaseseseansneenearensaseneas 43
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`COUNTI: Declaratory judgment that the challenged practices are unlawful and
`that the challenged provisions are unenforceable, and related injunctive
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` TONE one eeeeeee cece teeeseseesesesesseseeceseseseeeescsesesseneassesseneneeseseneaeessaeneaesssassesesseasseseessasseseeneaeseseeneaeeees 43
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`COUNTII: Violation of the right to privacy under the California constitution.................. 45
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`COUNTIIE: Violation of the right to free speech under the California constitution.......... 47
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`to equal protection under the California
`COUNT IV: Violation of the right
`CONSTITUTION... csescsvsereesserscssevsesessesresssssscsavesssevssssensensassevesssasssssesssssoesassosavesevavessssseasesseavaogs 48
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`COUNTV:: Intrusion upon Seclusion ......cccccccescccsssesessssssescseseacsesescaesescensceesaeseneasseseassesescenseeeees 49
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`COUNTVI: Intentional infliction of emotional distress ........... esse eeereeeeseeeeesteseereeeseneeeeeees 50
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`COUNTVII: Negligence uo... cccssessesssssessssesssesseresssnsssncssansssscsseresssesseressseseeneaesesseneaesesesscseanenseces 51
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`COUNTVIII: Conversion and trespass to chattels .........cccsscscsssesesesesesesesesseessseeseeseenseseeteasens 53
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`COUNTIX: Unjust enrichment ......0... ce ceeseccesesesesssesesseesssesessscsescarscseveceeeressversssseseesasasssseaseners 53
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`COUNTX: Violation of the Unfair Competition Law (“UCL), Cal. Bus. & Prof.
`Code § 17200, et SCG... scsssssesssssessscsesssvscssscscssecesssssesssesescscsesvessssessussessssssaeaeseasensesesnanenenees 54
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`COUNTXI: Violation of the California Invasion of Privacy Act (“CIPA”), Cal.
`Petal Code §§ 630, et SCG. ..csecsesssssessscscssecsessssssssenenssesescsesesssrsesusssssessseserssesesssnaesesnseesesees 55
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`PRAYER FOR RELIEFuu. ccscssessessesecessesessecessecescenesesessesssneenearssssesseneenearsnseesseeeeveaesneceseeesseenens 63
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`DEMAND FOR JURY TRIAL. une ceccccccesessessesesesseseessnsesecucsccscansncsessesesscansacensesseeneateaeensatsneaeeetes 64
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`Citizen PowerInitiatives for China (“CPIFC”) and Doe Plaintiffs 1-6! (together with
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`CPIFC, “Plaintiffs”), bring this action based upon knowledgeas to themselves and their ownacts,
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`and upon information andbelief as to all other matters, against Tencent America LLC and Tencent
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`International Service Pte. Ltd. (collectively “Tencent’”’), as follows:
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`L
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`NATURE OF THE ACTION
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`1.
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`One out of approximately every six people in the world speaks Chinese. WeChat,
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`a messaging-and-payments mobile application offered by Tencent (and which is sometimes used
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`herein synonymously with the term WeChat), holds an effective monopoly on howthe inhabitants
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`of that world communicate with each other electronically. This case is about the portion of that
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`world that uses WeChatin California (“California WeChat users’). California WeChatusers are
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`also referred to herein as the “Class.”
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`2.
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`This case arises from Tencent’s practices of profiting from politically motivated,
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`pro-Chinese Communist Party (“CCP”) censorship and surveillance of California WeChat users
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`(“challenged practices”), which includes the practice of turning over private user data and
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`communications to the governmentof the People’s Republic of China (“PRC government,” and,
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`together with the CCP, the “Party-state”), and which inflicts an array of harms. Specifically, the
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`challenged practices include Tencent’s practices of: (1) turning over private California WeChat
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`user data and communications to the Party-state; (ii) profiting by using California WeChat user
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`data and communications to improve Tencent’s censorship and surveillance algorithms; (iii)
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`censoring and surveilling California WeChat user communicationsfor content perceivedascritical
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`" California Code of Civil Procedure § 367 does not requite the use of real names, but merely “that an
`action be broughtbythe real party in interest[,] ... to protect a defendant from harassment by other
`claimants on the same demand.” Dee v. Lincoln Unified Sch. Dist., 187 Cal.App.4th 1286, 1291 (Cal. Ct.
`App. 2010). Meanwhile, both California courts and the United States Supreme Court have recognized
`the propriety of allowing pseudonymous plaintiffs where, as here, important privacy considerations
`ate at stake, including the need to protect plaintiffs from potential retaliation. Id at 1292. As alleged
`herein, WeChat users and their family members have endured threats and harassment—including at
`the hands of the PRC government—merely for sending messages critical of that government over
`WeChat. It is therefore reasonable to expect that filing suit against Tencent in connection with
`Tencent’s enabling role in such oppression would result in even more threats and harassment. Thus,
`Doe Plaintiffs respectfully submit that they ate entitled to proceed pseudonymously.
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`of the Party-state; (iv) suspending, blocking, or deleting California WeChat user accounts and/or
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`data over such content; and (v) prohibiting California WeChat users from withdrawing funds
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`stored in their WeChat accounts when those users do not possess an account with a PRC financial
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`institution subject to monitoring by the Party-state.
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`3.
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`This action also challenges provisions in Tencent’s terms of service and privacy
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`policy which,
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`taken together, are oppressive, obfuscatory, and incoherent
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`(“challenged
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`provisions”). The challenged provisions include privacy-related termsthat are deliberately vague
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`and ambiguous with respect to whether the challenged practices are permitted or prohibited
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`(“vague and ambiguousprivacy provisions’’), which in turn benefits Tencent by reservingto it the
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`right to adopt self-interested interpretations. However, California WeChat users are entitled to
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`clear, unambiguous, and testable language with respect to the nature and scope oftheir privacy on
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`WeChat—inother words, to honesty and transparency.
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`4.
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`Yet, even if the challenged practices were unambiguously prohibited under the
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`challenged provisions, the challenged provisions include terms that makeit practically impossible
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`for California WeChat users to seek meaningful redress for the harms caused by those practices
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`(“remedy-limiting provisions”).
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`5.
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`Finally, the challenged provisions include terms that impermissibly discriminate
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`against California WeChat users who happento be citizens of the PRC (“long-arm provisions”).
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`6.
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`The challenged practices and provisions inflict multiple harms on California
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`WeChat users, including financial loss, emotional trauma, and psychological stress. They are
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`unlawful under California law because they:
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`violate California WeChat users’ privacy, speech, and equal protection
`rights under the California constitution;
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`unlawfully intrude on the privacy and seclusion of California WeChatusers;
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`unlawfully interfere with California WeChat users’ property rights;
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`unjustly enrich Tencentat the expense of California WeChatusers; and
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`violate California WeChat users’ statutory rights under California law.
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`7.
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`There is no reasonable alternative to WeChat for anyone wishing to maintain
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`regular contact with the Chinese-speaking world, and given the Party-state’s willingness and
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`ability to suppress dissent inside the PRC, noneis likely to emerge so long as the Party-state is
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`intent on continuing its policies of suppression. Because of Tencent’s effective monopoly,
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`California WeChat users have no meaningful choice but to accept the challenged practices and
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`provisions as a condition of using WeChat. Thus, because the challenged provisions require
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`California WeChatusers to sacrifice a panoply of speech, privacy, and other rights as a condition
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`of using WeChat, these requirements are unconscionable and void against public policy.
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`8.
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`Finally, the challenged practices and provisions hinder CPFIC’s ability to carry out
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`its mission of advocating for a peaceful transition to democracy in China.
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`Il.
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`JURISDICTION AND VENUE
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`9.
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`10.
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`This action arises underthe lawsof the state of California.
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`This Court has subject-matter jurisdiction over this action because the amount in
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`controversy is over $25,000.
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`11.
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`Venueis properin this Court because Tencent America LLC hasits principal place
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`of business in, and because a significant proportion of the misconductat issue occurred in, Palo
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`Alto, California.
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`Il.
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`PARTIES
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`A.
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`Plaintiffs
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`1.
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`Citizen PowerInitiatives for China
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`12.
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`Plaintiff Citizen PowerInitiatives for China (“CPIFC”) is a 26 U.S.C. § 501(c)(3)
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`nonprofit organization located at 533 5th Street N.E., Washington, D.C. 20002, dedicated to
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`advancing a peaceful transition to democracy in China, including by engaging in pro-Chinese
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`democracy activities in the United States. But for the challenged practices and provisions, CPIFC
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`would be a WeChat user. However, because of the challenged practices and provisions, CPIFC
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`does not have a WeChat account, for fear that the challenged practices and provisions would either
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`allow the Party-state to spy on it with impunity, or would result in any account being blocked, or
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`both.
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`13.
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`CPIFC has beeninvestigating Tencent’s conduct, including in California, for nearly
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`a year. This ongoing investigation, which has been overseen by CPIFC’s attorneys, has included,
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`among other things, hundreds of interviews with WeChat users throughout the United States,
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`including many in California. CPIFC’s mission has been impeded by Tencent’s actions as it has
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`dedicated resources to combating Tencent’s practices that, but for Tencent’s malicious actions,
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`could have been dedicated to accomplish other aspects of CPIFC’s mission.
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`1.
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`Doe Plaintiff 1
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`14.
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`Doe Plaintiff 1 is a California resident and citizen of the United States. Doe Plaintiff
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`1 first created a WeChat account in approximately 2014.
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`2.
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`Doe Plaintiff 2
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`15.
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`Doe Plaintiff 2 is a California resident and citizen of the PRC. Doe Plaintiff 2 first
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`created a WeChat account in approximately 2013.
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`3.
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`Doe Plaintiff 3
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`16.
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`Doe Plaintiff 3 is a California resident and citizen of the United States. Doe Plaintiff
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`3 first created a WeChat account in approximately 2015.
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`4.
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`Doe Plaintiff 4
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`17.
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`Doe Plaintiff 4 is a California resident and citizen of the United States. Doe Plaintiff
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`4 first created a WeChat account sometime between 2012 and 2015.
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`5.
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`Doe Plaintiff 5
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`18.
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`Doe Plaintiff 5 is a California resident and citizen of the PRC. Doe Plaintiff 5 first
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`created a WeChat account in approximately 2014.
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`6.
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`Doe Plaintiff 6
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`19.
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`Doe Plaintiff 6 is a California resident and citizen of the PRC. Doe Plaintiff 6 first
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`created a WeChat account in approximately 2012.
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`B.
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`Defendants
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`1.
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`Tencent America LLC
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`20.
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`Tencent America LLC is a Delaware corporation with its principal place ofbusiness
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`at 2747 Park Blvd, Palo Alto, California, 94306. According to the Tencent America LLC website,
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`that “Tencent America is the US branch of Tencent.”” As used herein, “Tencent”refers to both it
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`and Tencent International Service Ptd. Ltd.
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`21.
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`Tencent America LLC operates or participates in operating WeChat in California.
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`Its website states its work “include[s] advertising, artificial
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`intelligence, cloud services,
`99 be
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`entertainment, investments, payments, and security.” Its “artificial intelligence,”
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`“cloud services,”
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`and “security” work includes assisting with the development, operation, and improvement of the
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`censorship and surveillance practices and policies challenged herein.
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`2.
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`TencentInternational Service Pte. Ltd.
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`22.
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`Tencent International Service Pte. Ltd. is a Singaporean corporation located at 10
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`Anson Road, #21-07 International Plaza, Singapore 079903. It is the relevant contracting entity
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`for WeChat users residing in California, according to WeChat’s terms of service. As used herein,
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`“Tencent” refers to both it and Tencent America LLC. It operates or participates in operating
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`WeChatin California.
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`IV.
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`STATEMENTOF FACTS
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`A.
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`WeChatis the most popular and ubiquitous social media application in the
`global Chinese-speaking community and maintains an effective monopoly on
`electronic communications in that community, including in California.
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`23.
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`It is difficult to overstate the ubiquity of WeChat in the Chinese-speaking world.It
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`is akin to Facebook, PayPal, WhatsApp, and Instagram combinedinto a single platform, and is
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`used for business, family, and personal communications.
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`24.
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`For example, a user in, say, downtown Los Angeles might open WeChatto text a
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`friend about lunch plans in Santa Monica. Then, the user might tap on a group they have created
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`for people interested in a certain type of fashion item; let group members knowtheuseris receiving
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`* About Tencent America, https://www.exploretencent.com/explote (last visited Dec. 31, 2020).
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`a shipment soon, and take orders. Then, the user might pay for the shipment; upload pictures of
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`the items to the group; and receive payments for placed orders—all within WeChat’s constellation
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`of services. Then, the user might upload a general missive about what a good moodthey are in
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`directed at no one in particular, which anyonein their contact list can see. Then, the user might
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`call their friend over WeChat to say they are on their way to lunch; upload pictures of the lunch to
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`their other friends; and pay for the lunch—again, all within WeChat. Then,
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`the user might
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`participate in a video call with their family back in the PRC to check on howthey are doing during
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`the coronavirus pandemic.
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`25.
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`Not only that, but if the user wants to communicate with people in the PRC, or with
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`large swaths of the Chinese diaspora in the United States, including California, they have no choice
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`but to use WeChat.
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`26.—For people inthe PRC,the fact that the Party-state blocks platforms like WhatsApp,
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`Facebook, Twitter, and even Gmail, means that
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`there is no way to easily communicate
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`electronically other than WeChat, with the exception of relatively expensive text messages or
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`phonecalls.
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`27.
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`For people outside the PRC who want to communicate with people inside the PRC,
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`WeChat is also the easiest method of communication. By comparison, most other methods are
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`either expensive or inefficient, or require the person inside the PRC to circumvent government
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`controls, or both.
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`28.
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`All this becomestruer by virtue of the well-recognized networkeffects contributing
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`to the success of social media platforms. Today, a person facing the decision of how to
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`communicate with people in the Chinese-speaking world can only reject WeChatat great practical
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`and even economic cost, considering the time value of money. A feedback loop is created, and
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`WeChat becomes even more ubiquitous.
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`29,
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`There is perhaps no clearer indication of WeChat’s effective monopoly over
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`electronic communications in the Chinese-speaking world than the reaction to the Trump
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`administration’s August 6, 2020 executive order concerning WeChat.
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`Immediately,
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`it was
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`recognized by people with varying views with respect to the CCP that a “ban” on WeChatin the
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`United States would likely result in a significant decrease in communications between people in
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`the two countries.
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`30.
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`For example, a prominent commentator on issues related to the PRC and the United
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`States joked that without WeChat, communications between people in the two countries would
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`have to take place by messengerpigeon:
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`Chen Weihua (FRE) @
`@chenweihua34%
`& Chinastate-affiliated media
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`20202F8A ta
`AOTES=IBAR
`RATER, Be
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`If US bans WeChat, a lot of Chinese in the US could lose
`their contacts with families and friends in China.
`In fact,
`that applies to some Americans who have a lot China
`connections. Thatis a serious violation for the US govt.
`Pigeon will be the new messengeras some jokes go.
`
`FRCT.
`
`
`
`4:30 AM - Aug 7, 2020-Twitter for iPhone
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`31.
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`As another example, on a public email list for people interested in Chinese legal
`
`issues, a Texas-based law professor wrote: “I’ve been using WeChat for many years, for both
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`business and personalreasons. I run our school’s study abroad program in Beijing, and WeChatis
`
`essential to the communications between me and our Chinese partners. When students study in
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`27 China, we use WeChatto connect individually and in group, which makeslife so mucheasier. I
`
`WeChat’s censorship andsurveillance practices in California harm California
`WeChatusers in many ways.
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`C.
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`* Message posted to Chinese Law Discussion List (chinalaw@hermes.gwu.edu) dated August 10, 2020.
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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`8
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`am now worried about life without WeChat.’””
`
`32.
`
`Indeed, on August 21, 2020, a lawsuit wasfiled challenging the executive order on,
`
`inter alia, First Amendment grounds. See U.S. WeChat Users Alliance, et al., v. Donald J. Trump,
`
`et al., No. 20-cv-05910-LB (N.D. Cal.) (“Executive Order Lawsuit’). And, following extensive
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`briefing, the district court found that ‘““WeChatis irreplaceable forits users in the U.S., particularly
`
`in the Chinese-speaking and Chinese-American community.” /d., Dkt. 59 at 5. The court then
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`granted the plaintiffs’ request for a preliminary injunction.
`
`B.
`
`33.
`
`WeChatis censored and surveilled in California.
`
`Forall that a WeChatuser can do on the WeChatplatform, what they cannotreadily
`
`do—including in California—is send messages perceived ascritical of the Party-state, including
`
`euphemistic and satirical messages like cartoons depicting Xi Jinping as Winnie the Pooh. Such
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`messages tend to be blocked, censored, deleted, and can lead to the blocking, suspension, or
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`deletion of the user’s account—and,as discussed below, much worse.
`
`34, WeChat’s terms of service do not explicitly prohibit content critical of the Party-
`
`state. However, such content is de facto prohibited on WeChat, despite there being no technical
`
`reason that such a prohibition might be necessary for WeChat’s proper functioning.
`
`35.
`
`The Party-state’s censorship and surveillance policies are also a significant factor
`
`in WeChat’s ubiquity in the Chinese-speaking world. Because its major competitors are blocked
`
`in the PRC, WeChat hasessentially no competition in the Chinese-speaking world. Meanwhile,
`
`WeChat’s collaboration in the Party-state’s censorship and surveillance system ensures the Party-
`
`state will continue to protect and support it and to prevent the emergence of viable competitors
`
`who may beless willing to collaborate.
`
`
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`

`

`
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`37.|These harmful consequences also include business losses in amounts as high as
`
`41.—_All this chills constitutionally protected speech. Indeed, many WeChat users have
`24
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`26
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`told CPIFC that they feel real fear that the Party-state or its agents will retaliate against them or
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`their family, and that, as a result, they self-censor—despite the fact that they live in California.
`
`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
`
`9
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`36. WeChat’s censorship and surveillance practices in California have significant
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`harmful consequences on California WeChat users. CPIFC’s ongoing investigation has uncovered
`
`hundreds of examples of such harms,all flowing from WeChatusers in the United States, including
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`in California, making comments perceived ascritical of the Party-state. They include emotional
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`distress resulting from the loss of cherished memories and photos built up over extended periods
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`of WeChat use, as well as from the inability to communicate with family members in the PRC
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`during a pandemic, after accounts were blocked, suspended, or deleted.
`
`millions of dollars resulting from an inability to continue business discussions and negotiations
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`conducted on WeChat, after accounts were blocked, suspended, or deleted.
`
`38.
`
`They also include harrowing consequences for California WeChat users’ family
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`members
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`in the PRC, where California WeChat users’ critical comments—made from
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`California—haveled to visits from PRC security agents. Indeed, these consequences, and the fear
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`of similar other consequences, have deterred at least one California WeChat user who was
`
`previously interested in being a plaintiff in this action from moving forward.
`
`39.
`
`They also include interference with California WeChat users’ private property
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`rights. As WeChat itself recognizes, the contents of social media accounts are the property of the
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`account holders. Indeed, WeChat’s terms of service explicitly provide that the only aspects of a
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`WeChatuser’s account that constitute WeChat’s property are “Your account name, user ID and
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`other identifiers you adopt within WeChat.” By necessary implication, other aspects of the account,
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`including account content, constitute the user’s property.
`
`40.
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`Despite that, WeChat routinely interferes with the property rights of California
`
`WeChatusers by blocking, suspending, or deleting their accounts for political reasons.
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`Indeed, their experiences with WeChat, where even minor or glancing critiques of the Party-state
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`haveresulted in non-trivial harms, confirm that their fears are well-founded.
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`42,
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`The net effect of the challenged practices is the suppression of open and honest
`
`communication on WeChaton a variety of topics, given that virtually any commentary relating to
`
`the PRC short of praise for the Party-state could potentially be interpreted as critical in nature and
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`thereby lead to negative consequences.
`
`43.
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`That the challenged practices and provisions inflict serious harm on California
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`WeChatusers is confirmed by the experiences of, and harms suffered by, Doe Plaintiffs.
`
`D.
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`The challenged practices and provisions haveinflicted significant harm on Doe
`Plaintiffs.
`
`1.
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`Doe Plaintiff 1
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`44,
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`Doe Plaintiff 1 is a U.S. citizen born in the PRC. In 2014, he created a WeChat
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`account using a U.S. phone number. One of his main uses for the accountis to stay m touch with
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`classmates and professors from his time at university in the PRC. This group is composed of
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`alumni, and comprises a diverse array of people, including people who work inside the PRC
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`government, as well as professionals in the fields of education, economics, and law. Owing to the
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`considerable amountofintellectual and political discussion occurring amongthis group offriends
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`and acquaintances, including of news Doe Plaintiff 1 transmits from California that is unavailable
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`in the PRC,
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`they have had their WeChat group—of which Doe Plaintiff 1
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`is usually the
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`administrator—blocked or suspended dozensof times. Each time, he has reconstituted the group.
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`45.
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`In late 2019, Doe Plaintiff 1°s account was suspendedafter he posted politically
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`sensitive information. He was informed the suspension was permanent, but when he complained,
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`he wastold that he could get limited access to his account for the purpose of withdrawing any
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`money remaining in his WeChatwallet. After being granted such limited access, he saw another
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`link to unblock his account. Whenhetried this link, he was given some moreaccessto his account.
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`Specifically, he was able to read messages posted by other people, but he could not post messages
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`COMPLAINT FOR DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
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