Category: National Security

FISA and the USA PATRIOT Act: Reforms and Legal Implications

Lizzie Evanko

Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978, in an effort to establish a legal framework for the physical and electronic surveillance of foreign entities. FISA allowed the federal government to collect intelligence on any foreign power (or agent of a foreign power) suspected of terrorism or espionage. The act in turn created the Foreign Intelligence Surveillance Court (FISC, or FISA courts, colloquially) to supervise the requests and uses of federal surveillance warrants. The FISA court established judicial review of the covert surveillance activities being carried out, but due to the sensitive nature of intelligence collection methods and information, these courts maintain a high level of secrecy to protect national security.

Congress passed FISA in response to the uncovering of government surveillance abuses (many of which occurred under the Nixon administration). The act made many surveillance practices legal and created a system to oversee the process of surveillance. However, FISA has been repeatedly amended, most notably following the attacks on September 11, 2001. One of the major amendments to FISA was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or simply, the Patriot Act. While FISA limited the federal government’s surveillance capabilities to foreign actors, the Patriot Act vastly expanded surveillance permissions, establishing the ability to surveil US persons. Specifically, Section 215 of the Patriot Act, colloquially known as the “business records” provision, allows for investigative agencies to obtain secret court orders which require third parties (like telephone companies and other businesses) to hand over records and any other “tangible things” deemed relevant to a national security investigation. In most criminal cases, the burden of proof for a search warrant typically requires probable cause, which is based on an “officer’s reasonable belief, based on circumstances known to that officer, that a crime has occurred or is about to occur.” However, Section 215 remains particularly controversial, because some “thing” being relevant to a national security investigation is an extremely low burden of proof for the government to be able to secretly obtain records of virtually any kind. There does not need to be probable cause regarding a specific crime that has occurred or is about to occur for a warrant to be granted.

While many people would oppose government surveillance for the most part, there are arguments to be made in its favor. First, surveillance allows the federal government to develop intelligence and protect the American people from a large number of national security threats, like intellectual property theft, espionage, or terrorism. By using surveillance, the government is able to effectively target and incarcerate foreign agents that wish to do the United States harm, and the known possibility of surveillance may deter these agents from following through with their potential hostilities. Second, FISA and other surveillance acts create legal, transparent pathways for the government to eliminate investigatory barriers to gaining intelligence and building cases. Whereas other governments may keep their surveillance capabilities secret, FISA and the Patriot Act clearly outline what the federal government is allowed to do. Additionally, these acts allow the government to gain intelligence and build cases in legal ways. Lastly, one of the major arguments in favor of acts like FISA and the Patriot Act is that government surveillance will not directly affect most law-abiding citizens. In other words, “if you haven’t done anything wrong, you have nothing to fear,” so, unless one is a threat to national security (in which case we should hope such a threat is being surveilled), surveillance cannot pose a direct threat.

While these arguments stress the importance of FISA, there are similarly many arguments to be made against it. For one, even though FISA and the Patriot Act may make certain forms of surveillance legal, it is questionable whether or not the Patriot Act, in particular, violates some constitutional rights. For example, in Brandenburg v. Ohio, the Supreme Court of the United States determined that the First Amendment protects speech advocating for illegal activities, unless said language is intended and likely to incite “imminent lawless action.” This precedent established that even if one were to only speak about illegal activities, they may not necessarily be charged with illegal incitement. However, with the Patriot Act, free speech is significantly less protected, as the standard of probable cause for surveilling a subject is much more vague, and thus more easily met. For example, a surveillance order may be issued based on a person’s internet activity, book purchases, or published writings. These actions should fall under their First Amendment right to freedom of speech, but the Patriot Act allows for surveillance based on these actions, which is arguably violating their freedom of speech. Furthermore, recipients of search orders are prohibited from notifying others of the search, which further hinders their First Amendment rights.

The Patriot Act also violates aspects of the Fourth Amendment, which establishes that the government cannot “conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.” However, under the Patriot Act, the government can conduct secret searches without showing probable cause that the subject has committed or will commit a crime. The Fourth Amendment also guarantees notice to a person whose privacy has been violated by a search or seizure, whereas the Patriot Act does not guarantee notice, even after a subject has been investigated. Such notice is also a part of the Fifth Amendment’s guarantee to due process, so the lack of required notice by the Patriot Act could also be interpreted as a violation of the Fifth Amendment. The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor…” However, because almost all FISA information is classified, including its collection methods, many defendants are denied these important Sixth Amendment rights. Confidential informants’ identities are not revealed, refusing the defendants’ rights to confront their witnesses, and they are furthermore barred from accessing much of the information that led to their arrest in the first place. Moreover, the only people allowed to review FISA information are those with security clearances, so any details about collection methods are kept secret, making it impossible for a defendant to face a jury of their peers. Subjects of national security investigations or trials are thus left in the dark, which could be a violation of the Sixth Amendment.

There are other objections to FISA and the Patriot Act as well. For instance, some argue that the secret nature of surveillance proceedings leaves the federal government with too much unchecked power. With the secret nature of FISA information, witnesses, and collection methods, there is little supervisory oversight, and there is even less judicial oversight. The only judges and attorneys that are able to review FISA information are those with security clearances, and none of that information can surface in front of a jury or open courtroom. This leaves the information to be reviewed by a select few who are responsible for the entire proceeding. Judges of the FISA Court are hand-appointed by the Chief Justice of the Supreme Court with no say from Congress, and hearings are entirely closed to the public. How judges make decisions in these backroom discussions is entirely unknown to defendants and juries. A telling statistic about the decision-making of the FISA Court is that from the Act’s passing in 1979 to 2012, the court signed off on 33,942 warrants and denied only 12. This rate is significantly higher than similar warrant passage rates seen in the federal court system. Furthermore, FISA allows (in some cases) for warrantless search and seizure, making the nature of prosecutions that use information gained without a warrant more suspect. It has also been proven that FISA and the Patriot Act have, in fact, been overused. In 2013, whistleblower Edward Snowden leaked information “about the NSA’s ‘PRISM’ and ‘Upstream’ programs, which involve the NSA working closely with companies like Google, Facebook, AT&T, and Verizon to conduct warrantless surveillance of Americans’ international communications on a massive scale.” This evidence proved that the surveillance capabilities granted by FISA and the Patriot Act were being abused.

The courts have addressed some of these issues. Antoine Jones was convicted of drug-trafficking conspiracy, based on information collected by a GPS device that was put on his car, 24 hours after the warrant to place the device had expired. The Supreme Court, in United States v. Jones, rejected the lower court’s claim “that there is no reasonable expectation of privacy in a person’s movement on public thoroughfares,” and it held that the surveillance on Jones’s vehicle was a violation of his Constitutional rights. The case demonstrated that, again, the federal government had infringed upon the Constitutional rights of investigation subjects, and the Court set the precedent that, even when a crime has been committed, the rights of the accused take priority over law enforcement concerns. Another major case regarding the Constitutional violations of FISA and the Patriot Act is ACLU v. United States, in which the ACLU filed a motion following the Snowden documents’ release in June 2013. The motion requested the FISA Court “publish its opinions on the meaning, scope, and constitutionality of Section 215,” but was subsequently denied. The ACLU filed several other motions for review, all of which were denied. The ACLU then “filed a petition for writ of certiorari in the Supreme Court, challenging these rulings and asking the court to recognize a First Amendment right of public access to the FISC’s opinions—ensuring that the opinions are released with only those redactions necessary to prevent genuine harm to national security.” The Supreme Court denied the petition for writ of certiorari, arguing that not only should the lower court’s rulings be upheld because they were correct, but that the Supreme Court is also powerless to review the lower court’s decisions, even if they were found to be incorrect. In Justices Sotomayor and Gorsuch’s dissent, they state, “On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.”

These cases all demonstrate a connecting theme: there is extremely little oversight or public understanding of FISA and the Patriot Act, and yet, there continue to be dangerous implications and failures of these acts. Especially going forward, since we live in an increasingly online society, these acts must be reconsidered. It is clear that the practices of government surveillance have implications that threaten the Constitutional rights of the American people. Regardless of FISA and the Patriot Act’s successes, the presence of so many examples of misconduct prove that a tool as powerful (and useful) as these acts needs to have more safeguards in place, and more information needs to be made publicly available for people to know to what risks these acts expose them.

Electronic Surveillance, the Fourth Amendment, and the NYPD’s “Muslim Surveillance Program”

Annie Akbar

In a letter to James Madison after the French Revolution had begun, Thomas Jefferson wrote, “The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.” Here, Jefferson is advocating for a periodic revision of the Constitution, one in which the citizenry rethinks its guiding document in light of the circumstances of a new era. When comparing our age to that of our Founding Fathers, it is not difficult to understand Jefferson’s sentiment. The advancement of our society, especially in terms of technology, has significantly affected the ways in which civil rights (and their infringement) appear. This is especially true when examining electronic surveillance and its implications for Americans’ constitutional liberties. For example, in Hassan v. City of New York (2015), the United States Court of Appeals for the Third Circuit held that, under the First and Fourteenth Amendments, the New York City Police Department’s “Muslim Surveillance Program,” in which electronic surveillance was used to “infiltrate and monitor Muslim life in and around New York City,” was unlawful. While this decision undoubtedly finds legitimacy in the aforementioned amendments, I contend that applying a modern interpretation of the Fourth Amendment—one rooted in “living constitutionalism,” or the idea that “constitutional law can and should evolve in response to changing circumstances and values”—can also prove the program’s illegality.

In Hassan v. City of New York (2015), lead plaintiff Syed Faraj Hassan and others associated with Islam testified that, since January 2002, the New York City Police Department (NYPD) used what was informally known as the “Muslim Surveillance Program” (also called “the Program”) to monitor the lives of Muslims and their businesses, mosques, organizations, and schools in New York City and neighboring cities and states. The Court of Appeals found that the plaintiffs—“persons associated with Islam who claimed to be targets of police surveillance program”—had standing to sue in federal court to “vindicate their religious-liberty and equal-protection rights” and that their claims were justified under the First and Fourteenth Amendments. It is clear why the Program, which “targeted Muslim American communities in New York, New Jersey, and beyond,” would violate the First and Fourteenth Amendments. However, employing the Fourth Amendment to assess the Program’s “sprawling and secretive human mapping and suspicionless surveillance program” may provide an additional legal foundation for the decision.

The Fourth Amendment affirms that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In short, the Fourth Amendment outlaws unreasonable searches and seizures. The NYPD’s participation in the Program, though, constitutes an unreasonable search and seizure of data on Muslims in the greater New York area via electronic surveillance.

The plaintiffs in Hassan argued that the NYPD monitored Muslims in several ways, such as by taking pictures, shooting videos, and gathering license plate information of mosque attendees. Officers also pointed surveillance cameras at mosques, which they could then control remotely. Furthermore, the plaintiffs asserted that the NYPD would send undercover cops into mosques, student organizations, businesses, and neighborhoods that it characterized as “heavily Muslim” to listen in on sermons and conversations before reporting back to their department. These surveillance methods were not solely concentrated in New York City—they extended into New Jersey, Connecticut, Pennsylvania, and other areas of New York state. In addition, the NYPD collected information on the locations of religious schools, the religious affiliations of certain public establishments, the number of businesses operated or visited by Muslims, and the names of people involved with Muslim Student Associations (MSAs) in the area. The NYPD also “compile[d] databases of new Muslim converts who [took] Arabic names, as well as Muslims [who took] names that [were] perceived to be ‘Western.’”

The plaintiffs declared that the intelligence gathered by the NYPD through the Program was compiled into many reports. Such reports included information on Newark’s Muslim population, over 20 precinct maps of Newark showing the locations of mosques and Muslim businesses and the ethnic composition of the Muslim population, and “analytical report[s] on every mosque within 100 miles of New York City.”

From this, it is obvious that the NYPD’s program was meant to target Muslims and their daily activities, indicating religious discrimination that the Court of Appeals affirmed in its ruling. However, I assert that the Program’s electronic surveillance to collect an expansive collection of data by itself is sufficient to warrant a contravention of the Fourth Amendment.

Regarding the Fourth Amendment, the Court of Appeals utilizes Justice Scalia’s point in Whren v. United States (1996) about selective enforcement of the law: “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.” While I agree with the appellate court’s reasoning, I believe that the Program’s methods of collecting people’s information, regardless of their religion, can be considered a Fourth Amendment infraction.

But first, does electronic surveillance even fall under the jurisdiction of the Fourth Amendment? In Katz v. U.S. (1967), a case involving electronic surveillance, the Supreme Court held that the Fourth Amendment protects “any place where an individual maintains a reasonable expectation of privacy.” In his concurring opinion, Justice Harlan stated that “a person has a legitimate expectation of privacy if he honestly and genuinely believes the location under surveillance is private.” Due to the separation of church and state found in the Constitution, places of worship are commonly regarded as private institutions—institutions in which a person “has a reasonable expectation of privacy.” Under this ruling, the Fourth Amendment prohibits unreasonable searches and seizures involving data collection through electronic surveillance—precisely the sort of search and seizure in which the NYPD engaged.

Now that this has been established, I will use the Fourth Amendment to provide further support for the decision in Hassan. According to the federal courts, the Fourth Amendment prohibits unreasonable searches and seizures by the government (and government agencies like police departments), but only those that are perceived as unreasonable from a legal standpoint. This is referred to as the reasonability requirement. Judges are to consider the main factors when determining whether or not a search was reasonable: the search’s infringement on a person’s Fourth Amendment rights and compelling interests that may allow for such an infringement. For an interest to be compelling, the government must use the “strict scrutiny test” to show that the interest is “important enough that it justifies infringing on a fundamental right, and [that its] infringement on rights is done in ‘the least restrictive’ or most careful way possible.” However, in Hassan, the Court of Appeals held that the “municipality’s assurance that police surveillance was justified by national-security and public-safety concerns did not satisfy its burden of producing evidence to overcome heightened scrutiny’s presumption of violation of equal protection.” Because the NYPD failed to prove that electronically surveilling Muslims was a compelling interest, the “Muslim Surveillance Program” fails to fulfill the reasonability requirement. Moreover, “least restrictive means” refers to a method that places “the least possible restriction on personal liberty and the exercise of rights.” While public safety and thus crime prevention are certainly compelling interests, the NYPD’s surveillance program is clearly not the least restrictive means possible to achieve its desired ends. This is due to its surveillance of basically all Muslims in the greater New York area, rather than just those on watchlists or things of that nature.

Though Fourth Amendment jurisprudence is beginning to incorporate electronic surveillance threats to privacy, an obstacle to this development may arise from originalists who disagree with applying the Fourth Amendment to this issue. These individuals proclaim that the “original meaning of search seems to be the ordinary meaning at the time [of the Fourth Amendment’s adoption] of ‘looking over or through’ or ‘examining by inspection’” and that an unreasonable search is only one that “violate[s] the common law rules for searches at the time of the Fourth Amendment.” However, taking into account the privacy and “search and seizures” problems that are related to electronic surveillance is crucial to upholding the protections of the Fourth Amendment. According to the Brennan Center for Justice, as cell phones, watches, cars, and other electronic devices become “smarter,” they “create detailed records about our private lives, potentially revealing not only where we have been but also our political viewpoints, consumer preferences, people with whom we have interacted, and more.” This information can be used by “law enforcement for use in investigations and prosecutions, and much of it is currently available without a warrant.” Thus, establishing legal limits to such electronic collection of data is a worthwhile endeavor to maintain the sanctity of our rights.

The idea of electronic surveillance and its potential infringement of people’s Fourth Amendment rights is one that warrants attention because, as technology continues to progress in terms of its abilities, so will the means by which data is collected. Without implementing proper legal restrictions on the use of data collection, the privacy of American citizens under the Fourth Amendment may be in danger.

The False Reality of Foreign Neutrality

Justin Murdock

Abstract

As the Russian juggernaut ravages through Ukrainian cities and civilians and eastern European democracy proves to be dire in the alarming crisis, American intervention without provoking an all-out nuclear war seems like a must. However, given that the United States is currently at peace with the aggressor, Russia, as per the Neutrality Act and corresponding penal statutes in Title 18, individual citizens cannot engage in acts of aggression. There is one caveat that must be urgently addressed: the geographic boundaries of conscription, organization, and intervention. Under current laws, military intervention can be undertaken by U.S. citizens beyond U.S. borders, leading to potential issues such as the shattering of neutrality and escalation of the war. Through examination of the statutes’ texts and applications in foreign affairs and historical cases, this piece concludes that the distinction between conscription domestically and abroad must be prohibited to ensure that neutrality is genuinely preserved in our modern day. 

Background

The Neutrality Act of 1794 and corresponding US Penal Code, known together as Title 18, outline the sorts of intervention individual actors from the United States can take in a foreign conflict. These two statutes date back to the founding of the  nation and were particularly relevant in regards to European militias during the 1790s. Given Putin’s bellicose crackdown on Ukraine, however, the relevance of these laws has resurfaced in the context of modern volunteers. While the Neutrality Act of 1794 has been reenacted and amended multiple times to clarify the associated penalties and breadth of its jurisdiction, it effectively lives on in 18 U.S.C. § 960. 

Three statutes in the Penal Code are of particular importance regarding relevant action modern peacekeeping conscripts can take: 18 U.S.C. § 958, 18 U.S.C. § 959, and 18 U.S.C. § 960. The first involves accepting commission on U.S. soil against a foreign polity who is at peace with the U.S.—in this case, Russia. The second involves enlisting in the service of a foreign entity on U.S. soil, which is irrelevant to whether the respective foreign force is at war. The third involves furnishing and organizing money for foreign militaries on U.S. soil in conjunction with participating in an expedition from the United States, which is an adaptation of the statute’s first rendition under President Washington’s Neutrality Act. While Congress certainly can and should give a firm position on U.S. military intervention in foreign operations, the distinction between foreign and domestic recruitment, organization, and fundraising of the Neutrality Act should be repealed given the fallacy it provides abroad. Determined militants may take steps on foreign territory to effectively make it null and void. 

Legal Bases

The three statues in the Penal Code have gone through multiple trials and errors throughout events involving foreign militias—from the founding of the statute during the Revolutionary War to the recent applications in Operation Gideon in Venezuela and the Gambian coup d’état attempt. Title 18 is undoubtedly key to the integrity of American foreign policy, and by no means does this argument seek to diminish its past or present importance. After all, armed citizens with a desire to overthrow foreign powers for the sake of alleged domestic peacekeeping would throw the international system into anarchy; as such, penalties must exist to keep ambitious militants in check. That said, the exception regarding American military actors outside U.S. turf could allow belligerents to evade prosecution and retribution as per 18 U.S.C. §§ 958-60. These laws cite people susceptible to prosecution as “any citizen of the United States who, within the jurisdiction thereof,” or “whoever, within the United States,”—meaning, technically signing up outside U.S. soil would be legal. Regardless of the neutrality laws, would signing up to participate in a foreign conflict (that the U.S. has stated neutrality on) outside U.S. soil make a difference? Yes. On principle, would signing up violate this neutrality? Yes—it has, and it will regarding the Russo-Ukrainian War. 

The Penal Codes have been put under scrutiny regarding certain hostilities and instances of foreign intervention. Notably, Gayon v. McCarthy (1920) set forth a clarification that the furnishing of funds on U.S. turf would be sufficient to prove a violation of the Neutrality Laws. Additionally, under United States v. Murphy (1898), “military enterprises” composed and premeditated on U.S. land are grounds for violations once more. While these laws address the issues of their respective times, our increasingly-digitized world makes cyber-conscription and other means of advocacy for belligerent forces significantly easier for civilians—with boundless websites and outlets for recruitment abroad. For example, the laws present issues with digital conscription with acceptance under Sec. 958 and enlistment in Sec. 959. Additionally, though Sec. 959 has addressed the arrangement of payment, one must consider pro-bono work or payment received through non-governmental organizations representative of civilians.

Due to the specific language set forth in these laws, breaking neutrality in a way that conflicts  with U.S. foreign policy is a criminal act. Essentially, one can avoid this criminalization by launching a private war, sparking a coup, or fostering a bellicose political movement if such conscription and organization occurs outside the United States. In essence, however, they are non-neutral representatives of the United States. If a warmongering veteran joins a brigade in Ukraine on Ukrainian turf, brandishing an American patch and rifle, Russian corps will not know of American neutrality laws or assume that America is merely neutral in this crisis. While one can certainly believe that Putin’s heinous, excessive, and certainly unwarranted campaign should be denounced and chastised, one simultaneously needs to consider the Pandora’s box the Neutrality Act leaves open for alleged freedom fighters.  

Conclusions

Given the review of the vague terms set forth in various aspects of American penal law, and precedents set in case laws related to such statutes, this paper calls for the repeal of the Neutrality Act’s domestic and foreign conscription nuance. Thus, the Justice Department must eliminate the distinction, thereby banning foreign intervention, or be firm in support of civilian aid. Obviously, the former could potentially escalate, drawing all of NATO into the conflict, meaning the evident choice would be the latter.
The involvement of U.S. troops would dangerously escalate the crisis, and the burden set forth in the Neutrality Act does not help with independent U.S. conscripts dodging the restrictions and engaging militarily with Putin’s forces. As proven in past military operations, whether it be the conflicts in Afghanistan, Iraq, Syria, or even Ukraine itself in 2014, these volunteers often prove to be untrained extremists zealous for bloodshed and martyrdom. While de-escalation of the crisis and retribution of the autocratic Russia are a necessity, the Neutrality Act should not be the venue for passionate Americans to do so and should urgently be repaired to avoid military escalation. This statute constitutes a false reality of foreign neutrality, ready to implode with unforeseen military consequences.

When Two Worlds Collide: Evaluating Free Speech and National Security Claims around Trump’s WeChat Ban

by Nalin Ranjan

Introduction

Immigrants have come a long way from hopelessly striving toward the 20th-century ideal of full assimilation into American society. Descendants of Jewish immigrants, whom many believed could not be trusted, can now proudly take credit for developments in the sciences, politics, medicine, and the arts; blossoming Chinatowns have replaced enclaves that once shied away from any expression of their heritage for fear of persecution; Mexicans whose ancestors worked under poor conditions and compensation in the fields founded the United Farm Workers to ensure their voices were heard. The stories of immigrants who refused to merely conform to the expectations placed upon them are endless. They have long known that the immigrant experience entails keeping close to — and not abandoning — their unique cultures and communities.

It was thus that President Trump’s August 2020 ban on Chinese messaging service WeChat was met with large-scale trepidation amongst the Chinese-American community. For the unfamiliar, WeChat is the world’s third-largest messaging service and by far the most popular means of communication amongst first-generation Chinese immigrants, with nearly three million active daily users in the US. For many, it is the primary — if not only — means of keeping in touch with fellow Chinese immigrants and families back home. However, given its Chinese ownership, the app has been subject to intense scrutiny amid escalating tensions between the two countries. 

Legal action against the ban was swiftly taken, resulting in a preliminary injunction of the original order. And before further arguments were made, the Biden administration walked back the Trump-era restrictions. However, they also made it clear that they would continue probing the issue and that a further ban was not entirely out of the question just yet. In this article, I examine relevant constitutional arguments that may have been made in favor of the ban had further litigation continued. Whether or not the ban stands to constitutional muster will ultimately determine whether it is a legal restriction with unfortunate consequences or a fundamental violation of certain Americans’ right to communicate freely.

Background

President Trump initially issued Executive Order 13943 in August 2020, prohibiting “any transaction that is related to WeChat by any person, or with respect to any property… with Tencent Holdings Ltd [the parent company of WeChat]… or any subsidiary of that entity.” The order outlined seven restrictions — each prohibiting a certain type of transaction with WeChat or its parent company —that together would have immediately rendered WeChat services both useless and illegal to use. In particular, restrictions 1-4 would have crippled WeChat’s technological infrastructure and content-distribution backbone, while restriction 6, which bars “any utilization of the WeChat mobile application’s constituent code, functions, or services,” would have been nothing short of an explicit ban on using WeChat’s services for then-users in the United States. 

Make no mistake: most of the restrictions of the order could only be reasonably challenged in court by Tencent itself.1 But restriction 6, whose target is the American populace rather than a service/network/other technology managed by Tencent, could reasonably be challenged by American WeChat users, as it places an explicit restriction on a place Americans may go to express speech. My analysis hereinafter will focus on restriction 6, because 1) resolving first amendment challenges to restriction 6 entails tackling issues that would arise in challenges to other portions of the ban, and 2) first amendment challenges to restriction 6 most closely echo the concerns of American WeChat users, who are the most important stakeholders in this issue. 

Constitutionally, time, place, or manner (TPM) restrictions are permissible, but they must 1) apply equally to all forms of speech subject to the TPM restriction (i.e. be content-neutral), and 2) pass the test of intermediate scrutiny.2 Given that the ban seeks to impose a broad and sweeping restriction on the use of WeChat, it is clear that it passes the content-neutrality criterion: no particular message substance would be favored over another since all communication on WeChat would be prohibited. Thus, the only — albeit substantial — remaining obstacle that the ban must overcome is the test of intermediate scrutiny, which requires that a TPM restriction 1) serve a significant governmental interest unrelated to speech content, 2) be narrowly tailored, and 3) leave open adequate channels for communication. 

Does there exist a significant government interest that would be served by the ban?

As stated in President Trump’s initial executive order, the central motivation for issuing the ban is to protect national security. (The executive order clarifies that other threats, such as those to foreign policy and the economy, derive from the primary threat to US national security.) The precise definition of “national security” is somewhat elusive, but most would agree with the National Law Review’s characterization, which says that it “encompasses safeguarding the nation’s borders against foreign threats and terrorism… [which, in particular, may include] cyber-crimes, cyber-attacks, and other internet-based crimes.” And like most, we will grant that national security is a significant governmental interest unrelated to the particular content of restricted speech in this case.

Would the ban — as outlined in the original executive order and implemented in the Commerce Secretary’s addendum — prevent some action that gravely endangers US national security? The executive order would answer affirmatively, holding that the relevant action it prevents is the capture of “vast swaths of information from its users, which threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.” This conclusion, however, is based on multiple unsound foundations.

First, the characterization of the information WeChat collects as “personal and proprietary” is misleading, if not plainly incorrect. Upon registering, users must agree to a privacy policy that explicitly describes how one’s information will be shared with other subdivisions of Tencent, service providers (middlemen providing services that enable the functioning of the app), third parties with whom the user interacts, advertising partners, and notably, governments/regulatory agencies that request it.  Of course, this finding is wholly unsurprising to the average WeChat user. In addition to the common knowledge that using an online service will expose one’s information to its administrator, there is also a common cultural element at play: many WeChat users, as first-generation Chinese immigrants, are familiar with the authoritative role the CCP takes in regulating the flow of information and communication. A sentiment of an anonymous user on tech forum SlashDot sums up the typical WeChat user’s attitudes on this issue: “WeChat is a great app, and I use it all the time. But I have never considered it to be private.” Ultimately, users are knowingly consenting to share their data with WeChat and its wide range of affiliates, so the suggestion that users’ “personal and proprietary” information will land into the hands of an actor that shouldn’t have access to it — including the CCP — is both legally and empirically incorrect. 

Second, the mere collection of “vast swaths of data” on consenting American users is not in itself a threat to national security, even if this data lands into the hands of presumed US adversaries like the CCP. It is certainly true that WeChat follows the typical social media company strategy of collecting a wide range of identifying information and day-to-day activity data from users that may compromise their individual privacy, but it is difficult to see how such perfunctory data could be used to threaten US national security as a whole. Knowledge of what certain consenting individuals are doing, where they are going, and what some of their preferences are seldom, if ever, provides the edge needed to engineer large-scale attacks on US citizens or institutions. And the US government has implicitly recognized this fact: the combined revenue of the data analytics and online advertising market — both heavily reliant on collection and exchange of highly specific personalized data — totaled almost $100 billion in 2020 with no indication of slowing down. These markets, which feature thousands of companies of varying sizes, are officially sanctioned — and even participated in — by the US government. Were the possession of terabytes of perfunctory data truly a prospect with imminent national security concerns, history suggests governmental oversight would be swift and uncompromising — or at the very least, more stringent than the lax attitude currently adopted that treats personal data as little more than an arbitrary, freely exchangeable good.3 

In short, there is little evidence to suggest that a blanket ban on the use of WeChat would significantly remedy any existing national security vulnerability.

Would the WeChat ban leave open adequate channels for communication?

As established in Ward v. Rock of Racism, “the basic test for gauging the sufficiency of alternative channels is whether the speaker is afforded a forum that is accessible and where the intended audience is expected to pass.” In other words, the subject of a TPM speech restriction must be afforded another venue in which the intended audience may reasonably participate in a similar capacity. Appellate court precedent has established this requirement as one admitting a strict interpretation. For example, refusal to grant a permit to the Million Youth March sufficiently close to the movement’s desired location in Harlem was ruled in 1998 to be a First Amendment violation, because the city’s proposed relocation to Randall’s Island would have “adversely affect[ed] plaintiff’s ability to reach its target audience” by “limit[ing] [the movement’s] reach to [only] those who make an affirmative decision to travel to [Randall’s Island].” 

The alternatives afforded to WeChat users, unfortunately, are quite worse than a two-mile walk eastward to Randall’s Island. As Peng notes in her testimony, the only available alternatives to contact relatives abroad are costly and provide vastly inferior functionality:

“Without WeChat, I will have to go back to the old way of buying calling cards and making expensive international calls. I will also not be able to reach all of my family members with one click. I will not be able to look at them through video calls with my own eyes. Nor can they see that I am well with their own eyes.” 

For the unfamiliar, the reason that Peng would have to go back to calling cards is that most apps that seem like viable alternatives (WhatsApp, Snapchat, Messenger, Line, etc.) are blocked by the Great Chinese Firewall. 

And for those whose only proficient language is Mandarin (or another dialect spoken in China),4 the lack of other Chinese-friendly messaging apps would all but require attaining sufficient proficiency in another language. Even if we discount the many cases where this is effectively impossible (e.g., for senior citizens), such a requirement would fundamentally run contrary to the American notion of free expression. Learning a particular language should never be an explicit prerequisite to communicate, nor is the government within its right to revoke access to platforms so as to implicitly institute this as a requirement.

Conclusion

For now, Chinese-American WeChat users can breathe a sigh of relief. Yet it is clear that the issue is far from resolved, as the Biden Administration has indicated that a subsequent restriction is well within the realm of possibility. However, amid ever-changing political headwinds, American WeChat users can cling steadfastly to the legal rock that is intermediate scrutiny. Indeed, striking down the Trump-era ban would have only required that one intermediate scrutiny criterion be unmet. That the ban spectacularly fails multiple criteria is a serious indication that subsequent administrations will need to dedicate genuine, good-faith effort to crafting a more measured response that does not irreparably sever certain Americans’ access to their most significant outlet of communication.

1 Foreign entities may bring suit in US courts; see Servicios Azucareros v. John Deere.

2 First developed in Craig v. Boren.

3 See this article, for example. Most data exchanged over US networks is unregulated. That is, most companies are not under any obligation not to share your data with third parties, who can in turn do as they wish with that data (including selling it again). And none of them are obligated to tell you what they do with your data.

4 No publicly available sources have an estimate on the true number of English-deficient WeChat users in the United States. But an extremely conservative estimate would likely lie in the hundred-thousands.