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WeChat Litigation Put On Hold At Request Of U.S. Government Lawyers

SAN FRANCISCO (BCN/CBS SF) -- Lawyers representing the United States asked a San Francisco federal court on Thursday to suspend litigation over the government's attempt to shut down the WeChat messaging app in the United States.

The filing in the U.S. District Court for the Northern District of California follows a similar filing in the 9th Circuit Court of Appeals, where the parties are litigating another part of the case.

In the two filings, the government said it wants to suspend the ongoing litigation to give the Biden administration time to consider if it wants to change the position previously taken by the Trump administration.

The 9th Circuit approved the stipulation on Thursday, putting the appellate proceedings on hold.

The District Court approved the stipulation Friday morning.

Approval of the stipulations puts onto the back burner a litigation that boiled furiously through the fall and early winter.

Michael Bien, plaintiffs' lead lawyer, said the suspension of proceedings was a positive development, "we think that the new administration should stop and take a look at [what] we think is an extreme position taken by the Trump administration in this case."

WeChat began in China as a messaging app and over the years added additional functionality including calling, video conferencing, and in-app payments.

WeChat is owned by the Chinese company, Tencent Holdings Ltd., and is estimated to have more than a billion users worldwide, including 19 million in the United States.

Asserting that the app is used by the Chinese government for surveillance and data collection within the United States, in August of 2020 then President Trump issued an executive order intended to "address the threat posed by WeChat".

The order, as supplemented by the U.S. Secretary of Commerce's delineation of six specified prohibitions, imposed a number of limitations and prohibitions on WeChat and third parties, including prohibiting new downloads of the WeChat app, stopping the transfer of funds out of the United States by WeChat users, and forbidding the providing of technical services to WeChat by third parties.

A group of WeChat users sued, contending--as U.S. Magistrate Judge Laurel Beeler subsequently found--that by prohibiting third-party services such as web hosting and internet transit services, WeChat would be effectively be shut down, depriving millions of Chinese-speaking Americans of the primary platform they use to communicate and interact with friends and family in China.

Plaintiffs argued, among other things, that this violated the WeChat users' rights under the First Amendment.

The government contended that the order was a justified exercise of the president's national security powers against a "foreign adversary whose hostile acts are undisputed, and whose aspirations for global dominance are undisputed."

The magistrate judge rejected the government's position and, on September 19, 2020, she issued a preliminary injunction blocking the order.

Based on the evidence presented during an emergency hearing held on the weekend before the order was to go into effect, the magistrate ruled that the order was a burden on the First Amendment rights of WeChat users in the United States.

She found that although the government had identified significant national security interests for its action, the order was not "narrowly tailored" to protecting those interests.

The injunction prevented the government from shutting down the app while the litigation went forward.

Government lawyers asked first the magistrate and then the 9th Circuit to suspend the injunction while the government pursued its appeal of the magistrate's ruling. Both courts denied the request. The government did not ask the U.S. Supreme Court for review.

The parties pressed forward with the litigation. Plaintiffs filed an amended complaint based in part on new information. The government moved to dismiss the complaint in part.

Meanwhile, on June 20, the Biden administration took office.

During the campaign Biden at times used tough language in referring to China, though it remains unclear to what extent his administration will continue many of the aggressive positions taken by the Trump administration.

In filing the proposed stipulation in the District Court, the government stated that the Commerce Department has begun a review of "certain recently issued agency actions, including the Secretary's prohibitions regarding the WeChat mobile application at issue in this case."

The government "plans to conduct an evaluation of the underlying record justifying those prohibitions, which will better position the Government to determine whether the national security threat described in the [order]... continue[s] to warrant the identified prohibitions."

Bien said that because the preliminary injunction will continue in force while that review takes place, the stand down is a good idea. "We're hoping they come to the right decision and will abandon this effort, which we think is both unconstitutional and violates presidential powers and also just bad policy."

© Copyright 2021 CBS Broadcasting Inc. and Bay City News Service. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.

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