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Text | Du Chen Editor | Xiao Wei
On August 6th, US President Donald Trump signed two presidential decrees, demanding that the transactions of WeChat and Tik Tok applications developed by China companies be restricted in the United States after 45 days. There is no clear definition of the word "transaction" in the presidential decree, which has aroused widespread concern among US WeChat users: Is it illegal to even use WeChat?
As the deadline approaches, the latest news comes. On September 16, local time in the United States, the US Department of Justice sent a letter saying: WeChat users in the United States will not bear legal responsibility for continuing to download and use WeChat for personal and commercial purposes.
However, with this exemption letter from the Ministry of Justice, does it mean that the problem of "WeChat ban" has been fundamentally solved?
That's not true.
Disclaimer: It is only a staged victory.
Shortly after the ban was issued in August, some Chinese lawyers in the United States registered the non-profit organization "American WeChat User Association" (referred to as American WeChat Association or USWUA) and raised funds to initiate a lawsuit against the US government.
The above-mentioned letter from the Ministry of Justice is a reply from the US Department of Justice, as an interested party in this case, to the relevant lawyers and the American Micro Association, clarifying that WeChat users in the United States will continue to download and use WeChat for personal and commercial purposes and will not bear legal responsibility.
The public date of this letter is the day before the first trial of this case. In this regard, the American Micro Association pointed out that this is a concession that the Ministry of Justice has to make under the pressure of litigation.
Jeffrey Clark, Acting Deputy Minister of Justice, said in the letter that the US government does not restrict any activities of WeChat at present:
The actual meaning of the statement of the Ministry of Justice is that, in principle, users who normally download and use WeChat as a communication tool will not be defined as "transactions", so there is no need to worry about disobeying presidential orders.
This letter played an important role in clarifying the discussion around the entire WeChat ban. The American Micro Association said that this was a major staged victory since the US government was sued.
However, the American Micro Association also pointed out that although this letter is obviously better than the presidential decree, it still does not provide enough protection for users.
Generally speaking, this letter comes from the Ministry of Justice, which is only the interested party in the case, not the defendant. The Ministry of Justice can make a statement in this case, but this letter has not been signed by Trump or Wilbur Ross, the Secretary of Commerce, and it is still an empty promise made by the Ministry of Justice. In principle, the Ministry of Justice cannot guarantee that Trump thinks the same way, and the definition of "transaction" by the Secretary of Commerce is consistent with that of the Ministry of Justice.
The American Micro Association believes that this letter does not fill the ambiguity and unconstitutional defects of the presidential decree itself, and its legal effect is not as reliable as expected.
First hearing: See you on Sunday.
/kloc-in September of 0/7, the first hearing of this case was held as scheduled, and the hearing mainly focused on a motion put forward by the American-American consortium. The motion requires the judge to prevent the US Department of Commerce and other relevant departments from banning WeChat, and exempt any users who disobey orders from criminal and civil liability within 60 days after the ban officially defines "transaction".
Lawyers hired by American Micro Media Association bluntly said in court that the real purpose of the presidential decree is not to solve the so-called "national security" concerns that WeChat may have, but to divert the public's attention from its dereliction of duty in preventing and controlling the COVID-19 epidemic.
"The White House didn't even ask government employees to ban the use of WeChat. (WeChat) is not a real problem for them at all. " The lawyer said.
At present, the epidemic in the United States has not subsided. In the United States, China people are isolated from the rest of the world, keep social distance, and rely more on WeChat to maintain Sino-US communication. Lawyers pointed out that if WeChat is banned, millions of Chinese in the United States will lose an important tool to maintain social distance and keep in touch with friends and family.
Lawyers of American Micro Association believe that besides personal contact, WeChat is an important tool for Americans and China people to run businesses, read news and express themselves. The presidential decree's potential ban on WeChat is a preset repressive remark: "If the ruling is not issued, the health and constitutional rights of millions of Chinese in the United States will continue to be damaged."
The countdown to the WeChat ban is 45 days, and many other policies implemented by presidential decree will take effect even after they are announced, without giving the parties whose interests are damaged the opportunity to express their objections in advance. In this regard, the lawyers of American Micro Association pointed out that if judges can issue judgments, they will be able to persuade future administrative organs to publish similar unrealistic laws and policies that seriously infringe people's constitutional rights.
Lawyers for the US government said that the plaintiff's argument was untenable, mainly because American users' dependence on WeChat was only a preference, not an absolute demand. For example, after the announcement of the presidential decree, many Chinese in the United States registered to use other social software in the panic that WeChat might be blocked, which was also reported by many media.
The defendant pointed out that under such a premise, the plaintiff's argument does not constitute the element of the judgment.
Judge Laurel Beeler expressed "deep sympathy" for the anxiety of US WeChat users, especially considering the existence of the epidemic: "I deeply sympathize with the anxiety of those users who may be affected. We all know the existence of these people, and we also know that people want to do business and keep personal contact in some parts of the world and need such applications. "
The hearing lasted more than an hour. The judge did not make a favorable or unfavorable ruling for either party, nor did he explicitly support most of the plaintiff's statements in the trial, and even expressed great doubts about the specific meaning of the plaintiff's accusation of ultra vires.
The judge also said that the presidential decree said it would take 45 days to implement. According to Sunday, September 20th, there are still three days left. The core problem is that for a policy that has not been officially announced and does not know the specific content (that is, the Ministry of Commerce officially prohibits WeChat "transactions"), the judge cannot issue an injunction in advance.
"I don't really want to give you an answer so early." The judge said in court.
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