Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 1 of 52 1 2 3 4 5 6 7 8 9 10 JEFFREY BOSSERT CLARK Acting Assistant Attorney General DAVID M. MORRELL Deputy Assistant Attorney General DIANE KELLEHER Assistant Branch Director SERENA M. ORLOFF MICHAEL DREZNER STUART J. ROBINSON Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch Ben Franklin Station, P.O. Box No. 883 Washington, DC 20044 Phone: (202) 305-0167 Fax: (202) 616-8470 E-mail: serena.m.orloff@usdoj.gov Counsel for Defendants 11 12 13 14 15 16 17 18 19 20 21 22 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA __________________________________________ ) U.S. WECHAT USERS ALLIANCE, et al., ) Case No. 3:20-cv-05910-LB ) Plaintiffs, ) DEFENDANTS’ OPPOSITION ) TO PLAINTIFFS’ MOTION v. ) FOR PRELIMINARY ) INJUNCTION DONALD J. TRUMP, President of the United ) States, and WILBUR ROSS, Secretary of ) Date: Sept. 17, 2020 Commerce, ) Time: 9:30am ) Place: San Francisco, CA Defendants. ) Judge: Hon. Laurel Beeler __________________________________________) 23 24 25 26 27 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 2 of 52 1 TABLE OF CONTENTS 2 3 INTRODUCTION .......................................................................................................................... 1 4 BACKGROUND ............................................................................................................................ 4 5 I. 6 Factual Background ............................................................................................................ 4 A. 7 Congress and the Executive Branch Identify Chinese Technology Companies as a Significant and Growing National Security Threat. ..................... 4 8 1. Early Concerns Regarding Huawei and ZTE.............................................. 4 9 2. Increasing Reliance on Mobile Technologies Amplifies the National Security Threat. ............................................................................ 5 3. The National Defense Authorization Act of 2018. ..................................... 7 10 11 12 B. Researchers and Government Officials Identify Tencent and WeChat as a Growing Threat. ................................................................................................... 8 C. The President Issues Executive Order 13873 and Reports to Congress under the NDAA. .................................................................................................. 11 D. The President Takes Action Relating to WeChat. ................................................ 13 13 14 15 16 17 18 II. This Case........................................................................................................................... 14 IEEPA AND THE NEA................................................................................................................ 15 19 I. The International Emergency Economic Powers Act ....................................................... 15 II. The National Emergencies Act ......................................................................................... 15 20 21 22 DISCUSSION ............................................................................................................................... 16 23 I. Legal Standard .................................................................................................................. 16 II. Plaintiffs Are Unlikely To Succeed on the Merits of Their Claims. ................................ 17 24 25 26 27 A. Core Aspects of this Dispute Are Not Justiciable. ................................................ 17 1. Plaintiffs’ Claims Regarding the Scope of Action to Be Taken Under the Executive Order Are Not Ripe. ............................................... 17 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction i Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 3 of 52 1 2. Plaintiffs’ Challenges to the President’s National Security Determinations Are Not Justiciable. ......................................................... 19 3. Plaintiffs Lack a Cause of Action to Challenge the President’s Compliance with IEEPA and the NEA. .................................................... 20 2 3 4 B. 5 6 Any Remaining Claims Fail Because Plaintiffs Cannot Show that the WeChat Order Is Unlawful in Every Conceivable Application............................ 22 1. Plaintiffs Are Not Likely to Succeed on Their Vagueness Claims. .......... 22 2. Plaintiffs Are Not Likely to Succeed on Their First Amendment Claims. ...................................................................................................... 24 7 8 9 a. The Executive Order Is Content Neutral So Strict Scrutiny Does Not Apply. ........................................................................... 24 b. The Executive Order Satisfies Intermediate Scrutiny ................... 26 10 11 12 i. The Executive Order Advances Important Government Interests. ....................................................... 26 ii. The Executive Order Does Not Burden Substantially More Speech Than Necessary. .................... 27 iii. Ample Avenues of Communication Remain Available. .......................................................................... 30 13 14 15 16 17 18 19 3. Plaintiffs Are Not Likely to Succeed on their Ultra Vires Claims. .......... 32 4. Plaintiffs Have Waived Any Remaining Claims in this Motion............... 35 20 III. Plaintiffs Have Failed to Establish Irreparable Harm ....................................................... 36 22 IV. The Balance of the Equities Weighs Against a Preliminary Injunction ........................... 39 23 V. Any Preliminary Relief Should Be Limited...................................................................... 40 VI. Objection and Motion to Strike the Alben and Chemerinky Declarations ....................... 40 21 24 25 CONCLUSION ............................................................................................................................. 40 26 27 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction ii Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 4 of 52 TABLE OF AUTHORITIES 1 2 CASES 3 Al Haramain Islamic Found. v. U.S. Dep’t of Treasury, 686 F.3d 965 (9th Cir. 2012) ..................................................................................................... 30 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Alaska Right to Life PAC v. Feldman, 504 F.3d 840 (9th Cir. 2007) ............................................................................................... 18, 19 Alexander v. Sandoval, 532 U.S. 275 (2001) .................................................................................................................. 20 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ................................................................................................... 17 Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) ................................................................................................... 16 Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017) ..................................................................................................... 36 Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012) ..................................................................................................... 38 Bd. of Trustees of the State Univ. of NY v. Fox, 492 U.S. 469 (1989) .................................................................................................................. 30 Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987) .................................................................................................................. 29 19 20 21 22 23 24 25 26 27 Brunner v. Ohio Republican Party, 555 U.S. 5 (2008) ...................................................................................................................... 20 Cal. Dep’t of Educ. v. Bennett, 833 F.2d 827 (9th Cir. 1987) ..................................................................................................... 18 California v. Azar, 911 F.3d 558 (9th Cir. 2018) ..................................................................................................... 40 California v. Trump, 407 F. Supp. 3d 869 (N.D. Cal. 2019) ................................................................................ 19, 21 Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) .................................................................................................................. 20 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction iii Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 5 of 52 1 2 3 Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) ..................................................................................................... 37 CASA de Maryland, Inc. v. Trump, 2020 WL 4664820 (4th Cir. 2020) ............................................................................................ 40 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Christian Legal Soc. v. Martinez, 561 U.S. 661 (2010) .................................................................................................................. 31 Citizens United v. FEC, 558 U.S. 310 (2010) .................................................................................................................. 25 City of Ladue v. Gilleo, 512 U.S. 43 (1994) .................................................................................................................... 31 Clancy v. OFAC, No. 05-C-580, 2007 WL 1051767 (E.D. Wis. Mar. 31, 2007), aff’d, 559 F.3d 595 (7th Cir. 2009) ..................................................................................... 20, 26 Clark v. City of Seattle, 899 F.3d 802 (9th Cir. 2018) ..................................................................................................... 17 Clay v. Fort Wayne Cmty. Sch., 76 F.3d 873 (7th Cir. 1996) ....................................................................................................... 37 Conte v. Transglobal Assets, No. 2:12-cv-01005, 2012 WL 4092717 (D. Nev. Sept. 17, 2012) ............................................ 38 CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277 (2011) .................................................................................................................. 35 19 20 Ctr. for Biological Diversity v. Trump, No. 1:19-CV-00408 (TNM), 2020 WL 1643657 (D.D.C. Apr. 2, 2020).................................. 20 21 22 23 24 25 26 Dames & Moore v. Regan, 453 U.S. 654 (1981) .................................................................................................................. 15 DISH Network Corp. v. FCC, 653 F.3d 771 (9th Cir. 2011) ..................................................................................................... 17 Def. Distributed v. U.S. Dep’t of State, 121 F. Supp. 3d 680 (W.D. Tex. 2015), aff’d, 838 F.3d 451 (5th Cir. 2016) ........................................................................................... 32 27 28 Dollar Rent A Car of Wash., Inc. v. Travelers Indem. Co., 774 F.2d 1371 (9th Cir. 1985) ................................................................................................... 36 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction iv Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 6 of 52 1 2 3 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) ................................................................................................... 39 Elkins v. Am. Honda Motor Co., No. 19-818-JLS-KES, 2020 WL 4882412 (C.D. Cal. July 20, 2020)................................. 17, 18 4 5 6 7 8 9 10 11 12 Escamilla v. M2 Tech., No. 12-634, 2013 WL 4577538 (E.D. Tex. Aug. 27, 2013) ..................................................... 39 FCC v. Fox. Television Stations, Inc., 567 U.S. 239 (2012) .................................................................................................................. 22 Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) ..................................................................................................... 32 Franklin v. Massachusetts, 505 U.S. 788 (1992) .................................................................................................................. 21 Fulmen Co. v. Office of Foreign Assets Control, No. CV 18-2949 (RJL), 2020 WL 1536341 (D.D.C. Mar. 31, 2020) ....................................... 21 13 14 15 16 17 18 19 20 21 G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir. 2006) ................................................................................. 25, 27, 30, 31 Gest v. Bradbury, 443 F.3d 1177 (9th Cir. 2006) ................................................................................................... 37 Gill v. Whitford, 138 S. Ct. 1916 (2018) .............................................................................................................. 40 Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466 (9th Cir. 1984) ............................................................................................... 37, 38 Haig v. Agee, 453 U.S. 280 (1981) .................................................................................................................. 26 22 23 Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989) ........................................................................................................ 38 24 25 26 27 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) .......................................................................................................... 19, 26, 27 Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F .Supp. 2d 57 (D.D.C. 2002) ............................................................................................ 39 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction v Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 7 of 52 1 2 3 Huawei Techs. USA, Inc. v. United States, 440 F. Supp. 3d 607 (E.D. Tex. 2020) ........................................................................................ 7 Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986) .................................................................................................................. 19 4 5 6 7 8 9 10 11 12 King v. Burwell, 576 U.S. 473 (2015) .................................................................................................................. 34 Koff v. Ahern, No. 14-cv-04680, 2015 WL 1050167 (N.D. Cal. Mar. 9, 2015) ............................................... 36 Kohn v. State Bar of Cal., No. 20-CV-04827-PJH, 2020 WL 4701092 (N.D. Cal. Aug. 13, 2020) ................................... 18 Koller v. Brown, 224 F. Supp. 3d 871 (N.D. Cal. 2016) ...................................................................................... 37 Kovacs v. Cooper, 336 U.S. 77 (1949) .................................................................................................................... 31 13 14 15 16 17 18 19 20 21 Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192 (9th Cir. 2016) ................................................................................. 22, 26, 31, 32 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, (2001) ................................................................................................................. 27 Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197 (9th Cir. 1980) ................................................................................................... 38 Mazurek v. Armstrong, 520 U.S. 968 (1997) .................................................................................................................. 16 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ..................................................................................................... 38 22 23 Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) .................................................................................................................. 31 24 25 26 27 Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) ............................................................................................. 25, 30 Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) .................................................................................................................. 27 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction vi Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 8 of 52 1 2 3 Milena Ship Mgmt. Co. v. Newcomb, 804 F. Supp. 846 (E.D. La. 1992) ............................................................................................. 39 Mississippi v. Johnson, 71 U.S. 475 (1866) .................................................................................................................... 21 4 5 6 7 8 9 10 11 12 Nixon v. Fitzgerald, 457 U.S. 731 (1982) .................................................................................................................. 21 OKKO Bus. PE v. Lew, 133 F. Supp. 3d 17 (D.D.C. 2015) ............................................................................................ 27 One World One Family Now v. City & Cty of Honolulu, 76 F.3d 1009 (9th Cir. 1996) ......................................................................................... 25, 26, 30 Or. State Police Officers Ass’n v. Peterson, 979 F.2d 776 (9th Cir. 1992) ..................................................................................................... 23 Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020) ................................................................................................... 26 13 14 15 16 17 18 19 20 21 Packingham v. North Carolina, 137 S. Ct. 1730 (2017) .............................................................................................................. 28 Pokorny v. Quixtar Inc., No. 07-00201 SC, 2007 WL 1932922 (N.D. Cal. June 29, 2007) ............................................ 40 Recycle for Change v. City of Oakland, 856 F.3d 666 (9th Cir. 2017) ..................................................................................................... 36 Reed v. Town of Gilbert, 576 U.S. 155 (2015) ............................................................................................................ 24, 25 Regan v. Wald, 468 U.S. 222 (1984) ............................................................................................................ 15, 20 22 23 24 25 26 27 Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) .................................................................................................................... 17 RSI Corp. v. Int’l Bus. Machines Corp., No. C-08-03414 RMW, 2013 WL 1087468 (N.D. Cal. Mar. 13, 2013) ................................... 40 Sampson v. Murray, 415 U.S. 61 (1974) .................................................................................................................... 36 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction vii Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 9 of 52 1 2 3 Shady Acres HOA v. Kittitas Cty., 815 F. App’x 181 (9th Cir. 2020) ....................................................................................... 17, 18 Sierra Club v. Trump, 963 F.3d 874 (9th Cir. 2020) ..................................................................................................... 22 4 5 6 7 8 9 10 11 12 Thomas v. Union Carbide Agr. Prod. Co., 473 U.S. 568 (1985) .................................................................................................................. 17 Trans Union Corp. v. FTC, 267 F.3d 1138 (D.C. Cir. 2001) ................................................................................................ 28 Trump v. Hawaii, 138 S. Ct. 2392 (2018) ........................................................................................................ 27, 30 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ............................................................................................................ 25, 26 U.S. Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) .................................................................................................................. 19 13 14 15 16 17 18 19 20 21 United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011) ................................................................................................ 23, 35 United States v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002) .................................................................................... 28 United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) ..................................................................................................... 39 United States v. Spawr Optical Research, Inc., 685 F.2d 1076 (9th Cir. 1982) ............................................................................................. 19, 20 Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) .................................................................................................................. 36 22 23 Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515 (1937) .................................................................................................................. 39 24 25 26 27 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ........................................................................................................... passim Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ..................................................................................................... 38 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction viii Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 10 of 52 1 2 3 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) .................................................................................................................. 22 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ................................................................................................... 38 4 5 6 7 8 9 10 11 Winter v. NRDC, 555 U.S. 7 (2008) .................................................................................................... 16, 36, 37, 39 Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010) ................................................................................................... 23 Yates v. United States, 574 U.S. 528 (2015) .................................................................................................................. 35 Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .............................................................................................................. 21 12 STATUTES 13 5 U.S.C. § 704 ............................................................................................................................... 21 14 18 U.S.C. § 793 ............................................................................................................................. 35 15 18 U.S.C. § 794 ............................................................................................................................. 35 16 17 42 U.S.C. § 2000bb ....................................................................................................................... 14 18 50 U.S.C. § 1621 ........................................................................................................................... 16 19 50 U.S.C. § 1622 ..................................................................................................................... 16, 21 20 50 U.S.C. § 1641 ........................................................................................................................... 16 21 50 U.S.C. § 1701 ........................................................................................................................... 15 22 23 50 U.S.C. § 1702 ......................................................................................................... 15, 21, 32, 35 24 50 U.S.C. § 1705 ........................................................................................................................... 23 25 50 U.S.C. § 1708 ........................................................................................................................... 34 26 50 U.S.C. § 4305 ........................................................................................................................... 15 27 Pub. L. No. 94-412, 90 Stat. 1255 (1976) ..................................................................................... 15 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction ix Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 11 of 52 1 Pub. L. No. 115-232, 132 Stat. 1636, 1918 (2018) ......................................................................... 7 2 REGULATIONS 3 31 C.F.R. § 560.210 ...................................................................................................................... 35 4 5 84 Fed Reg. 65,316 (Nov. 19, 2019)............................................................................................. 12 6 85 Fed. Reg. 29,321 (May 13, 2020) ...................................................................................... 12, 13 7 RULES 8 Local R. 7-3 .................................................................................................................................. 40 9 UNITED STATES CONSTITUTION 10 11 U.S. Const. Art. I, § 8 ................................................................................................................... 21 12 U.S. Const. Art. II, §§ 1-2 ............................................................................................................. 21 13 OTHER AUTHORITIES 14 Exec. Order 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016) ........................................................................................ 23 15 16 17 18 Exec. Order 13,873, 84 Fed. Reg. 22,689 (May 15, 2019) .............................................................................. 2, 11, 12 Exec. Order 13,943, 85 Fed. Reg. 48,641 (Aug. 6, 2020) ................................................................................... passim 19 20 21 22 23 Nat’l Emergencies Act: Hr’gs Before the Subcomm. on Admin. Law and Governmental Relations, 94th Cong. 27 (March 6, 1975) (statement of Sen. Mathias) ...................................... 16 S. Comm. on Gov’t Operations & the Special Comm. on Nat’l Emergencies and Delegated Emergency Powers, 94th Cong., 2d Sess., The NEA Source Book: Legislative History, Texts, and Other Documents (1976) ........................................................................................................ 15 24 S. Rep. No. 94-922 (1976) ............................................................................................................ 15 25 S. Rep. No. 95-466 (1977), reprinted in 1977 U.S.C.C.A.N. 4540 .............................................. 15 26 27 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction x Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 12 of 52 1 2 3 4 5 6 7 8 9 10 JEFFREY BOSSERT CLARK Acting Assistant Attorney General DAVID M. MORRELL Deputy Assistant Attorney General DIANE KELLEHER Assistant Branch Director SERENA M. ORLOFF MICHAEL DREZNER STUART J. ROBINSON Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch Ben Franklin Station, P.O. Box No. 883 Washington, DC 20044 Phone: (202) 305-0167 Fax: (202) 616-8470 E-mail: serena.m.orloff@usdoj.gov Counsel for Defendants 11 12 13 14 15 16 17 18 19 20 21 22 23 24 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA __________________________________________ ) U.S. WECHAT USERS ALLIANCE, et al., ) Case No. 3:20-cv-05910-LB ) Plaintiffs, ) DEFENDANTS’ OPPOSITION ) TO PLAINTIFFS’ MOTION v. ) FOR PRELIMINARY ) INJUNCTION DONALD J. TRUMP, President of the United ) States, and WILBUR ROSS, Secretary of ) Date: Sept. 17, 2020 Commerce, ) Time: 9:30am ) Place: San Francisco, CA Defendants. ) Judge: Hon. Laurel Beeler __________________________________________) INTRODUCTION For over a decade, it has been a core priority of both Congress and the Executive Branch 25 to address the growing national security threat stemming from China’s activities in the 26 information technology and communications sectors. This threat has accelerated as the Chinese 27 Government simultaneously imposes its “Great Firewall,” blocking hundreds of the most popular 28 media and social networking sites within China, while also deliberately promoting the growth U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 1 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 13 of 52 1 and exportation of a select few approved Chinese technology companies with ambitions for 2 global dominance. There is widespread evidence that these rapidly growing Chinese technology 3 firms are not purely private, but in fact are intertwined with the Chinese Communist Party 4 (“CCP”). The close relationships between these firms and the CCP all but ensure the firms’ 5 market control within the Chinese diaspora, thereby allowing the Chinese Government 6 unprecedented access to user data, increasingly sophisticated artificial intelligence built on such 7 data, and a growing ability to surveil users, censor content, and spread disinformation. As these 8 Chinese Government-supported technology and communications firms extend their reach outside 9 of China, the United States Government has determined, based on years of accumulated 10 experience and intelligence, that they now pose a direct threat to the privacy and security of U.S. 11 persons. 12 The President and Congress have taken numerous steps to respond to this rapidly 13 growing threat. These include numerous legislative enactments, the issuance of Executive Order 14 13873 in May of 2019 declaring a national emergency under the International Emergency 15 Economic Powers Act (“IEEPA”) and the National Emergency Act (“NEA”), and several 16 initiatives to address vulnerabilities in the country’s information and communications technology 17 supply chain. As part of these efforts, on August 6, 2020, the President issued Executive Order 18 13943, 85 Fed. Reg. 48,641 (the “Executive Order”) to address the threat posed by one mobile 19 application in particular: WeChat, a mobile “SuperApp” created and operated by the Chinese 20 firm Tencent Holdings Ltd. (“Tencent”), one of the world’s largest social media companies. The 21 WeChat app collects vast amounts of user data and permits the People’s Republic of China 22 (“PRC”) nearly unmitigated ability to surveil its users and engage in disinformation campaigns. 23 Plaintiffs, a group of WeChat users, have brought this lawsuit challenging the Executive 24 Order under a variety of constitutional and statutory theories. They now move for a preliminary 25 injunction to prevent the Order from taking effect, but their claims fail on myriad grounds, and 26 their motion should be denied. 27 28 First, Plaintiffs cannot show a likelihood of success on the merits because key aspects of this case are not justiciable. Plaintiffs’ theories are largely predicated upon speculation regarding U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 2 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 14 of 52 1 the scope and likely impact of the Executive Order, but any such claims are not ripe because the 2 Executive Order charged the Secretary of Commerce (“Secretary”) with delineating the 3 prohibited transactions by September 20, 2020, and the Secretary has not yet finalized that task. 4 Plaintiffs therefore train their attack on the President’s antecedent decision to invoke his 5 emergency powers under IEEPA and the NEA with respect to WeChat, but—as courts have 6 uniformly held—such claims present nonjusticiable political questions; for a court to entertain 7 the kind of challenge Plaintiffs are making here would intrude on the core constitutional 8 authority of the President to make determinations related to foreign policy and the national 9 security of the United States. And, to the extent Plaintiffs challenge compliance with the 10 parameters set forth under IEEPA and the NEA, those claims fail for the additional reason that 11 Congress expressly declined to confer a private right of action to bring such claims. 12 When those nonjusticiable claims are peeled away, what is left is Plaintiffs’ facial 13 constitutional challenge to the Executive Order itself. But Plaintiffs have not met, and cannot 14 meet, the exceedingly high standard applicable to such disfavored facial challenges. Their 15 theory that the Executive Order is unduly vague under the Fifth Amendment fails for the same 16 reasons their claims are not ripe: the task of delineating prohibited transactions under the Order 17 is explicitly entrusted to the Secretary, who has not yet made such determinations. Nor do 18 Plaintiffs’ First Amendment claims hold water. Even assuming Plaintiffs’ speculation as to the 19 potential impacts of the Executive Order were correct, the Executive Order would easily clear 20 the requirements for a content-neutral regulation that incidentally affects the time, place, or 21 manner of certain speech. The Executive Order plainly serves critical Government interests— 22 the privacy and security of U.S. persons and thus the national security of the United States— 23 while targeting certain transactions related to a single social media application, thereby leaving 24 numerous alternative avenues of communication available. And Plaintiffs similarly fail to show 25 that the Executive Order is ultra vires in light of the highly discretionary and broad authority 26 entrusted to the President to address national emergencies. 27 28 Plaintiffs are equally unsuccessful in attempting to meet the final requirements of a preliminary injunction: demonstrating irreparable harm and a favorable balance of the equities. U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 3 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 15 of 52 1 Plaintiffs’ allegations of injury fail to establish any non-speculative irreparable harm, as their 2 claims of worry and possible economic injury do not suffice. The balance of equities also favors 3 the Government, given the well-recognized authority of the President to make sensitive national 4 security and foreign policy decisions. Indeed, to hold otherwise would allow a group of social 5 media users to substitute their subjective judgment for that of the Executive Branch and enjoin 6 Presidential action on a nationwide basis, merely because they are unable to use an app that they 7 prefer, over the vast range of alternatives open to them. The Court should accordingly deny 8 Plaintiffs’ motion for a preliminary injunction. 9 10 BACKGROUND I. Factual Background 11 12 13 14 A. Congress and the Executive Branch Identify Chinese Technology Companies as a Significant and Growing National Security Threat. 1. Early Concerns Regarding Huawei and ZTE For over a decade, Congress and the Executive Branch have expressed concerns about the 15 growing national security threat stemming from China’s activities in the information and 16 communications technology and services sectors. For instance, in 2010, a bipartisan group of 17 lawmakers wrote to the Chairman of the Federal Communications Commission, requesting 18 information about the security of U.S. telecommunications networks in light of a proposed deal 19 between Sprint, Cricket, Huawei and ZTE. See Cong. Leaders Cite Telecommunications 20 Concerns With Firms That Have Ties With Chinese Government (Oct. 19, 2010), Ex. 1. The 21 letter observed that Huawei and ZTE, two Chinese telecommunications firms with significant 22 ties to the Chinese government, were “aggressively seeking to supply sensitive equipment for 23 U.S. telecommunications infrastructure” and to service U.S. networks. Id. at 1. 24 The following year, the House Permanent Select Committee on Intelligence (“HPSCI”) 25 launched a related investigation that, although focused on Huawei and ZTE, was premised on the 26 broader concern that Chinese telecommunications companies with suspected ties to the Chinese 27 government could provide opportunities for espionage for a nation-state already well-known for 28 perpetrating cyber-attacks and espionage against the United States. See HPSCI, Investigative U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 4 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 16 of 52 1 Rep. on the U.S. Nat’l Sec. Issues Posed by Chinese Telecomms. Cos. Huawei and ZTE (Oct. 8, 2 2012) (“HPSCI Rep.”), at 2-4, Ex. 2. Such a platform, the Committee explained, could allow 3 China “to exert pressure or control over critical infrastructure on which the country is 4 dependent,” or give China access to sensitive governmental and proprietary information, 5 resulting in an “unfair diplomatic or commercial advantage over the United States.” Id. at 3. 6 Moreover, the mere dominance of China-backed firms in the information supply chain presented 7 “a national concern for the United States” in that it could lead to a “lack of market diversity” and 8 dependence on products and platforms supplied by companies beholden to the PRC, a 9 government “already known to be a major perpetrator of cyber espionage.” Id. at iv, 2. 10 At the same time, Congress was receiving similar information from the U.S.-China 11 Economic and Security Review Commission (“U.S.-China Commission”) and the Department of 12 Defense (“DoD”). The U.S.-China Commission reported that “[n]ational security concerns have 13 accompanied the dramatic growth of China’s telecom sector” and that “large Chinese 14 companies”—particularly those prominent in China’s “strategy of overseas expansion—are 15 directly subject to direction by the [CCP], to include support for PRC state policies and goals.” 16 Staff of U.S.-China Comm’n, 112th Cong., The Nat’l Sec. Implications of Invs. and Products 17 from the People’s Republic of China in the Telecomms. Sector, at 9 (2011) (“2011 USCC 18 Telecomms. Rep.”), Ex. 3. The reports explained that, “[al]though claiming to be private, [such 19 companies] are subject to state influence” and “enjoy favorable government policies that support 20 their development.” U.S.-China Comm’n, 112th Cong., 2011 Rep. to Congress, at 47, Ex. 4. 21 DoD likewise conveyed its assessment that Chinese technology companies “maintain close ties 22 to the [People’s Liberation Army].” Office of the Sec’y of Def., Annual Rep. to Congress: 23 Military and Sec. Devs. Involving the PRC, at 42 (2011) (“2011 DoD Annual Rep.”), Ex. 5. 24 25 26 2. Increasing Reliance on Mobile Technologies Amplifies the National Security Threat. Over the following years, intelligence officials across two different administrations 27 continuously and repeatedly concluded that China poses one of the “greatest cyber threats to the 28 United States.” See Daniel R. Coats, Dir. of Nat’l Intelligence (“DNI”), Stmt. for the Record: U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 5 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 17 of 52 1 Worldwide Threat Assessment of the US Intelligence Cmty., at 5 (2018) (“2018 DNI Threat 2 Assessment”), Ex. 6. These reports emphasized the heightened threat flowing from China’s 3 strategic insertion and penetration of its companies and products into informational networks and 4 markets beyond China. See Daniel R. Coats, DNI, Stmt. for the Record: Worldwide Threat 5 Assessment of the US Intelligence Cmty., at 1 (2017) (“2017 DNI Threat Assessment”), Ex. 7. 6 In a February 2015 report, the Federal Bureau of Investigations (“FBI”) reported that “China 7 makes no secret that its cyber warfare strategy is predicated on controlling global 8 communications network infrastructure.” FBI, Counterintelligence Strategic P’ship Intelligence 9 Note, SPIN: 15-002, at 1 (Feb. 1, 2015) (“2015 FBI Note”), Ex. 8. The U.S.-China Commission 10 similarly stated in its 2017 Annual Report to Congress that China’s strategic approach involves 11 domestic companies “achiev[ing] dominant positions in China, and then . . . expanding to 12 overseas markets.” U.S.-China Comm’n, 115th Cong., 2017 Rep. to Congress, at 165 (Nov. 13 2017), Ex. 9. And the strategy was working: “the Chinese Government’s potential access to US 14 business communications is dramatically increasing,” with China’s intelligence services 15 “operating as an advanced persistent threat to U.S. networks.” 2015 FBI Note, at 1. 16 Intelligence officials also stressed that U.S. vulnerabilities on this dimension were rapidly 17 growing due to the expanded use of, and significant advances in, information and 18 communications technology. See James R. Clapper, DNI, Stmt. for the Record: Worldwide 19 Threat Assessment of the US Intelligence Ctmy., at 1-4 (Feb. 9, 2016) (“2016 DNI Threat 20 Assessment”), Ex. 10; 2017 DNI Threat Assessment, at 1-4; 2018 DNI Threat Assessment, at 5- 21 6. For example, the 5th Generation of wireless technology, or “5G,” promises to increase the 22 speed and responsiveness of mobile communications, while the number of Internet-connected 23 devices beyond conventional computers and smartphones is expected to grow exponentially, 24 leading to a veritable “Internet of Things” (“IoT”). See 2017 DNI Threat Assessment at 1-4. 25 Among other things, the IoT is expected to integrate cyber technologies into “critical 26 infrastructure in key sectors,” meaning that “[c]yber threats pose also an increasing risk to public 27 health, safety, and prosperity.” Id. at 1; see also 2016 DNI Threat Assessment, at 1 (explaining 28 that the incorporation of “[s]mart devices . . . into the electric grid, vehicles—including U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 6 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 18 of 52 1 autonomous vehicles—and household appliances . . . can threaten data privacy, data integrity, or 2 continuity of services”). At the same time, the inter-connected IoT will include “billions of 3 potentially unsecured” points in our Internet infrastructure, “creat[ing] an incalculably larger 4 exploitation space” for our adversaries. Nat’l Counterintelligence & Sec. Ctr., Foreign Econ. 5 Espionage in Cyberspace (2018) (“NCSC 2018 Report”) at 4, Ex. 11. In light of these persistent 6 threats and increasing vulnerabilities, the FBI Director stated during a hearing before the Senate 7 Select Committee on Intelligence (“SSCI”) that the FBI is “deeply concerned about the risks of 8 allowing any company or entity that is beholden to foreign governments that don’t share our 9 values to gain positions of power inside our telecommunications networks.” Open Hearing on 10 11 Worldwide Threats Before the SSCI, 115th Cong., at 64-65, Ex. 12. In 2018, DoD described these and similar threats as “the principal priorities for the 12 Department . . . because of the magnitude of the threats they pose to U.S. security and 13 prosperity[.]” DoD Summary of 2018 National Defense Strategy, at 4, Ex. 13. DoD explained 14 that “China and Russia are now undermining the international order from within the system by 15 exploiting its benefits while simultaneously undercutting its principles and ‘rules of the road.’” 16 Id. at 2. DoD again observed that the security environment was being “affected by rapid 17 technological advancements” including “‘big data’ analytics [and] artificial intelligence” and that 18 “[i]t is now undeniable that . . . America is a target, whether from terrorists seeking to attack our 19 citizens; malicious cyber activity against personal, commercial, or government infrastructure; or 20 political and information subversion” leveraging the “increasing digital connectivity of all 21 aspects of life, business, government, and military[.]” Id. at 3. 22 23 3. The National Defense Authorization Act of 2018 Congress responded in part to these growing concerns in its defense appropriations bill 24 for fiscal year 2019, which prohibited government agencies and contractors from buying, or 25 contracting with entities that use telecommunications or video surveillance equipment or services 26 produced by ZTE, Huawei, other identified Chinese entities, or any “entity that the Secretary of 27 Defense . . . reasonably believes to be an entity owned or controlled by, or otherwise connected 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 7 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 19 of 52 1 to, the government of [the PRC].” See S. McCain National Defense Authorization Act, Pub. L. 2 No. 115-232 § 889, 132 Stat. 1636, 1918 (2018) (the “NDAA”). 1 3 More broadly, the NDAA declared that “long-term strategic competition with China is a 4 principal priority for the United States that requires the integration of multiple elements of 5 national power . . . to protect and strengthen the national security,” and directed the President to 6 assess and formulate strategies to address the threat posed by China, including the CCP’s “use of 7 political influence, information operations, censorship and propaganda to undermine democratic 8 institutions,” and the “use of economic tools, including market access and investment to gain 9 access to sensitive United States industries.” Id. § 1261. The NDAA required defense and 10 intelligence officials to continue to study and develop procedures for limiting foreign access to 11 technology generally, see id. § 885, and to expand the Executive Branch’s annual report on 12 military and security developments involving the PRC to specifically address, inter alia, 13 “[e]fforts by the [PRC] to influence the media, cultural institutions, business, and academic and 14 policy communities of the United States” and the PRC’s use of other “nonmilitary tools” to 15 advance its security and military strategy objectives. Id. § 1260(5). 16 B. 17 Researchers and Government Officials Identify Tencent and WeChat as a Growing Threat. 18 Even as Congress was taking these actions, evidence was emerging that the national 19 security threat from Chinese information technology companies was evolving beyond Huawei 20 and ZTE. In 2019, the Australian Strategic Policy Initiative (“ASPI”), an independent, non- 21 partisan think tank, published a detailed report on the geostrategic considerations raised by the 22 rapid expansion of Chinese information technology and communications firms. See ASPI, 23 Mapping China’s Technology Giants, Issue Paper, Report No. 15 (April 2019) (“Mapping 24 Giants”), Ex. 14. The report reiterated that “CCP has made no secret about its intentions to 25 export its vision for the global internet” by “enhancing the ‘global influence of internet 26 27 28 1 See also Huawei Techs. USA, Inc. v. United States, 440 F. Supp. 3d 607 (E.D. Tex. 2020) (rejecting legal challenge to section 889). Congress also enacted a parallel provision to section 889 in its defense appropriations bill for fiscal year 2018. See Pub. L. No. 115-91, § 1656, 131 Stat. 1283, 1761-62 (2017). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 8 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 20 of 52 1 companies like Alibaba, Tencent, [and] Baidu’” (as well as Huawei) with an eye towards “‘the 2 party’s ideas . . . becom[ing] the strongest voice in cyberspace.’” Id. at 3. The report noted that 3 these companies “are subject to China’s increasingly stringent security, intelligence, counter- 4 espionage, and cybersecurity laws,” as well as “requirements . . . to host internal [CCP] 5 committees” and “cooperate in and conceal involvement in intelligence work,” id. at 4, and as a 6 consequence, “[t]he CCP’s influence and reach into private companies has increased sharply 7 over the past decade.” Id. at 7. The report identified Tencent as one of a handful of Chinese 8 companies “reported to have the highest proportion of internal CCP party committees within the 9 business sector.” Id. at 3.2 10 The report also explained that this increased cooperation between the CCP and private 11 enterprise in China was the “crown jewel” of a highly strategic foreign policy that aims to build 12 “a vast global network of infrastructure” and establish controls over that infrastructure so that 13 “‘the [CCP’s] ideas always become the strongest voice in cyberspace.’” Id. at 8. Indeed, 14 Chinese firms have consciously “developed and deployed sophisticated technologies that now 15 underpin the CCP’s ability to control and suppress segments of China’s population,” id. at 8, and 16 are “spreading well beyond China’s borders.” Id. at 9. The report identified Tencent as one of 17 these Chinese “tech giants,” explaining that “WeChat poses significant risks as a channel for the 18 dissemination of propaganda and as a tool of influence among the Chinese diaspora” outside of 19 China. This risk was exacerbated by the increasing “use[] [of WeChat] by politicians in liberal 20 democracies to communicate with their ethnic Chinese voters” and WeChat’s potential “to 21 substantially grow its user base overseas.” Id. at 15. The report also highlighted the app’s 22 “potential to facilitate surveillance,” noting that Amnesty International gave the company “a 23 score of 0 out of 100 on how well it . . . protect[s] online privacy,” and that “[c]ontent that passes 24 through WeChat’s servers in China is accessible to Chinese authorities by law.” Id. 25 26 27 28 2 See also ASPI, Technological entanglement, cooperation, competition and the dual-use dilemma in artificial intelligence, at 7 (June 28, 2018) (“Technological Entanglement”), Ex. 16 (“Just about every major tech company, including Baidu, Alibaba, Tencent, Sohu, Sina and NetEase, has a party secretary, who is often a fairly senior figure within the company, and new requirements may even require all listed companies to ‘beef up party building.’”). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 9 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 21 of 52 1 These findings built upon a prior ASPI report, which similarly noted that “[p]rivate 2 companies [in China] are not only sharing users’ personal data with the authorities in compliance 3 with China’s regulatory environment[,] . . . but many of those companies—including the industry 4 leaders—are building their business model predominantly around the needs of the state.” ASPI, 5 When the winner takes it all, Big data in China and the battle for privacy, at 3 (Jun. 22, 2018), 6 Ex. 15. This earlier report similarly identified the WeChat “all-in-one superapp” as an example 7 of this phenomenon, explaining that it was the result of Tencent’s “open[] and ambitious[]” 8 strategy “to become the fundamental platform for the Chinese internet: a platform ‘as vital as the 9 water and electricity resources in daily life.’” Id. at 4. The report cautioned that China’s strategy 10 of “informatisation”—described as “the process by which the political, social and economic 11 interactions in a society have become networked and digitised—cannot be overstated when 12 analysing China’s big data vision, especially in the public security sector.” Id. at 6. 13 Echoing these concerns, a March 2019 bulletin published in Japan Times explained that 14 “[i]t has long been understood that Tencent . . . facilitates Chinese government censorship and 15 surveillance,” and over the prior year “the scale and significance of this activity have increased . 16 . . both inside and outside China.” See Sarah Cook, Worried about Huawei? Take a Closer Look 17 at Tencent, Japan Times, March 29, 2019, Ex. 17. In particular, the “combination of growing 18 government demands and WeChat’s near market saturation in China has increased the scope and 19 impact of its complicity,” including through multiple forms of surveillance and “censorship 20 [that] significantly distort the information received by Chinese users on vital topics” and also 21 “may affect Tencent users outside China.” Id. The author recommended that “[g]overnments 22 and corporations . . . restrict usage of WeChat among their employees” and “[p]oliticians 23 communicating with their Chinese-speaking constitutents should make sure to do so across a 24 diversity of platforms, not just those that are subject to Chinese government control.” Id. 25 In November 2019, the U.S.-China Commission released a nearly 600-page report that, 26 among other things, drew similar conclusions about Tencent and WeChat. See generally US- 27 China Comm’n, 2019 Report to Congress (Nov. 2019) (the “USCSR 2019 Report”), Ex. 18. The 28 USCSR 2019 Report described WeChat’s mobile platform as providing “unparalleled access to U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 10 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 22 of 52 1 consumer data,” positioning the company for its selection by the Chinese government as one of 2 three companies forming a “‘National Team’ charged with developing [artificial intelligence 3 (AI)] in a range of subdomains.” Id. at 216-17; see also id. at 234, Addendum I (identifying 4 Tencent as one of China’s “key companies” for machine learning). 3 The Report also observed 5 that the WeChat app is a key tool for China’s disinformation campaigns, citing as one example 6 Australia’s May 2019 election, in which “fake news on WeChat was such a problem that 7 Australia’s Labor Party contacted WeChat owner Tencent to express frustration about posts 8 spreading disinformation.” Id. at 406-07. The Report cautioned that “use of [WeChat] had 9 spread beyond the Chinese Australian community, with about 3 million Australians using 10 WeChat by 2017,” id., and that “almost the entire Mandarin-speaking community in Australia 11 . . . used WeChat,” allowing “Beijing [to] ‘promote particular issues [as] a way of controlling 12 public debate.’” Id. at 407.4 13 C. 14 On May 15, 2019, the President issued an Executive Order finding “that foreign 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The President Issues Executive Order 13873 and Reports to Congress under the NDAA. adversaries are increasingly creating and exploiting vulnerabilities in information and communications technology and services, which store and communicate vast amounts of sensitive information, facilitate the digital economy, and support critical infrastructure and vital emergency services, in order to commit malicious cyber-enabled actions, including economic and industrial espionage against the United States and its people.” Executive Order 13873, Securing the Information and Communications Technology and Services Supply Chain, 84 Fed. Reg. 22689, 22689 (the “ICTS Executive Order”). The President explained “that the unrestricted 3 According to ASPI, “China seeks to take full advantage of the dual-use nature of AI technologies through a national strategy of ‘military–civil fusion’” through which China “intends to ensure that advances in AI can be readily turned to dual-use applications to enhance national defence innovation.” Technological entanglement, at 8, Ex. 16; see also ASPI, An Orwellian future is taking shape in China (Jan. 8, 2018), Ex. 19 (noting that “Beijing has made no secret of its goal to become the world leader in AI by 2030” and that “[a]lready, the beginnings of a truly Orwellian future in China are taking shape” based upon Tencent’s work “with authorities to develop an ‘early-warning system’ for predicting the size of crowds and their movement”). See id. at 2-3. 4 These concerns regarding WeChat have also been extensively reported in the mainstream press. See Ex. 20 (compiling articles of The New York Times, the Wall Street Journal, Lawfare, and National Public Radio, among others). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 11 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 23 of 52 1 acquisition or use in the United States of information and communications technology or 2 services . . . supplied by persons owned by, controlled by, or subject to the jurisdiction or 3 direction of foreign adversaries augments the ability of foreign adversaries to create and exploit 4 vulnerabilities in information and communications technology or services, with potentially 5 catastrophic effects, and thereby constitutes an unusual and extraordinary threat to the national 6 security, foreign policy, and economy of the United States.” Id. 7 In light of these findings, the President invoked his authority under the Constitution and 8 the laws of the United States, including IEEPA and the NEA, to declare a national emergency 9 with respect to this threat, and to prohibit transactions with foreign countries or foreign nationals 10 that pose “an undue risk of sabotage to or subversion” of, inter alia, the “maintenance of 11 information and communications technology or services in the United States” or “otherwise 12 pose[] an unacceptable risk” to the national security. Id. at 22,690. The President directed the 13 Secretary of Commerce, in consultation with other officials, to identify the transactions that pose 14 an undue or unacceptable risk to the national security of the United States, and further instructed 15 the DNI, the Secretary of Homeland Security, and the Secretary of Commerce to continue to 16 assess and report back to him on the threats from foreign adversaries with respect to entities, 17 hardware, software and services, and the actions taken pursuant to the Executive Order. See id. 18 at 22,690-92. 19 Consistent with these directives, on April 9, 2020, the Department of Homeland Security 20 (“DHS”) issued an interim report pursuant to the ICTS Executive Order, mapping out the 21 architecture of the ICT framework to assist identification of vulnerabilities. See DHS, 22 Cybersecurity and Infrastructure Agency (“CISA”), Exec. Order 13873 Response (Apr. 2020), 23 Ex. 21. ODNI also prepared a classified initial threat assessment. See 84 Fed Reg. 65316 (Nov. 24 19, 2019). 25 On May 13, 2020, the President renewed the declaration of emergency set forth in the 26 ICTS Executive Order. See 85 Fed. Reg. 29,321. Shortly thereafter, on May 20, 2020, he 27 presented a report to Congress, in accordance with the NDAA, outlining a set of broad strategies 28 in relation to the country’s foreign policy with China. See U.S. Strategic Approach to PRC (May U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 12 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 24 of 52 1 20, 2020), Ex. 22. While addressing a wide range of threats emanating from China’s open 2 acknowledgment “that it seeks to transform the international order to align with CCP interests 3 and ideology,” the report echoed prior concerns about “the PRC National Cyber Security Law, 4 which requires companies to comply with Chinese data localization measures that enable CCP 5 access to foreign data” and other laws that compel Chinese companies “to cooperate with 6 Chinese security services, even when they do business abroad, creating security vulnerabilities 7 for foreign countries and enterprises[.]” Id. at 7. The report explained that the ICTS Executive 8 Order sought to address this threat by “prevent[ing] certain companies associated with or 9 answering to the intelligence and security apparatus of foreign adversaries from, for example, 10 readily accessing the private and sensitive information of the United States Government, the 11 United States private sector, and individual Americans.” Id. at 10-11. 12 D. The President Takes Action Relating to WeChat. 13 On August 6, 2020, President Trump issued the WeChat Order. See 85 Fed. Reg. 48641 14 (Aug. 6, 2020). In it, he stated that “additional steps must be taken to deal with the national 15 emergency . . . declared in [the ICTS Executive Order]” because “the spread in the United States 16 of mobile applications developed and owned by companies in the [PRC] continues to threaten 17 the national security, foreign policy, and economy of the United States.” Id. at 48,641. He 18 further explained that Tencent’s WeChat app in particular required action: its practice of 19 “automatically captur[ing] vast swaths of information from its [over one billion] users” through 20 its messaging, social media and electronic payment applications “threatens to allow the [CCP] 21 access to Americans’ personal and proprietary information.” Id. The Order cited one research 22 study by the nonprofit Citizen’s Lab that had uncovered “a Chinese database containing billions 23 of WeChat messages sent from users in not only China but also the United States, Taiwan, South 24 Korea, and Australia.” Id.5 It also explained that WeChat “reportedly censors content that the 25 [CCP] deems politically sensitive” and may “be used for disinformation campaigns that benefit 26 27 28 5 See Jeffrey Knocket, et al., Citizen’s Lab, We Chat, They Watch, How International Users Unwittingly Build up WeChat’s Chinese Censorship Apparatus, at 5 (May 7, 2020) (“WeChat, They Watch”), Ex. 23 (finding, inter alia, that “[d]ocuments and images transmitted entirely among non-China-registered accounts undergo content surveillance”). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 13 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 25 of 52 1 the [CCP],” factors that had already led other countries, including Australia and India, to take 2 action to limit the use of WeChat in those countries. Id. The President concluded that the United 3 States, too, “must take aggressive action against [Tencent] to protect our national security.” He 4 thus ordered that, beginning “45 days after the date of this order,” i.e., by September 20, 2020, 5 “any transaction that is related to WeChat by any [United States] person, or with respect to any 6 [United States] property . . . with Tencent” shall be prohibited “as identified by the [Secretary] 7 under section 1(c) of this order.” Id. § 1(a). The Order provided that, by September 20, 2020, 8 “the Secretary shall identify the transactions subject to subsection (a) of this section.” Id. § 1(c). 9 II. 10 This Case On August 21, 2020, Plaintiffs filed this lawsuit against President Trump and Secretary 11 Ross. In their complaint, Plaintiffs acknowledge that WeChat is a tool through which the 12 Chinese government engages in “all-pervasive,” “dragnet surveillance” of the American 13 population, Compl. ¶ 4, and that the Chinese government has been able to induce what Plaintiffs 14 refer to as “complete[] relian[ce]” on the app, including among state and local entities in the 15 United States. See id. ¶¶ 10, 41.6 However, they contend that the President lacks the power to 16 address this threat because other apps are not as convenient as WeChat, lack its “network 17 effects,” and cannot be used to communicate within persons in China as effectively. See id. ¶ 12. 18 They claim that the President’s decision to designate WeChat as a national security threat and 19 invoke his authority under IEEPA with respect to that threat therefore constitutes a “stark 20 violation of the First Amendment,” id. ¶ 8, violates the Equal Protection clause, is void for 21 vagueness and lack of notice under the Fifth Amendment, is ultra vires, and violates the 22 Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb(1)(a). Id. ¶¶ 63-108.7 23 24 25 26 27 28 6 Indeed, Plaintiffs’ assertion that WeChat is akin to the “air” they breathe, Mot. at 4, uncannily echoes Tencent’s PRC-assisted vow “to become . . . a platform ‘as vital as the water and electricity resources in daily life.’” Ex. 15, at 4. 7 Plaintiffs’ motion rests on only some of these claims, and Defendants respond accordingly. U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 14 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 26 of 52 IEEPA and the NEA 1 2 I. 3 The International Emergency Economic Powers Act For nearly its entire history, the United States has used economic sanctions as a critical 4 means to protect national security and achieve foreign policy goals. During most of the 5 twentieth century, U.S. sanctions programs were governed by the Trading With the Enemy Act 6 (“TWEA”), which granted the President “broad authority” to “investigate, regulate . . . prevent or 7 prohibit . . . transactions” in times of war or declared national emergencies. See 50 U.S.C. 8 § 4305(b)(1); see also Dames & Moore v. Regan, 453 U.S. 654, 672 (1981). 9 In 1977, Congress enacted IEEPA. See S. Rep. No. 95-466, at 1-2 (1977), reprinted in 10 1977 U.S.C.C.A.N. 4540, 4541. IEEPA limited TWEA’s application to periods of declared 11 wars, but also extended the President’s authority to periods of declared national emergencies. 12 See Regan v. Wald, 468 U.S. 222, 227-28 (1984). Although the broad powers granted to the 13 President under IEEPA are essentially the same as those under TWEA, IEEPA provides 14 authority to exercise those powers during peacetime, “to deal with any unusual and extraordinary 15 threat, which has its source in whole or substantial part outside the United States, to the national 16 security, foreign policy, or economy of the United States,” see 50 U.S.C. § 1701(a). Once a 17 national emergency relating to such a threat is declared, IEEPA empowers the President to: 18 [R]egulate, direct and compel, nullify, void, prevent or prohibit, any . . . transfer . . . of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest . . . with respect to any property, subject to the jurisdiction of the United States[.] 19 20 21 Id. § 1702(a)(1)(B). 22 II. The National Emergencies Act 23 The NEA, Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. 24 §§ 1601-1651), was an effort by Congress to “establish procedural guidelines for the handling of 25 future emergencies with provision for regular Congressional review.” S. Rep. No. 94-922, at 1 26 (1976).8 The statute prescribes rules for Presidential declarations of national emergencies with 27 28 8 The NEA was the culmination of a multi-year effort by Congress to examine emergency statutes and procedures. See S. Comm. on Gov’t Operations & the Special Comm. on Nat’l Emergencies U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 15 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 27 of 52 1 respect to statutes “authorizing the exercise, during the period of a national emergency, of any 2 special or extraordinary power.” 50 U.S.C. § 1621(a). Congress did not define the term “national 3 emergency” or place any conditions on the President’s ability to declare a national emergency. 4 Instead, Congress committed this determination to the President as “it would be wrong to try to 5 circumscribe with words with what conditions a President might be confronted.” 6 Emergencies Act: Hr’gs Before the Subcomm. on Admin. Law and Governmental Relations, 94th 7 Cong. 27 (March 6, 1975) (statement of Sen. Mathias); see also id. at 31 (“[W]e didn’t attempt to 8 define it specifically because we were afraid we would circumscribe the President’s constitutional 9 powers.”); id. at 27 (statement of Sen. Church) (similar). 10 Nat’l Congress gave itself the exclusive oversight authority over a President’s national 11 emergency declaration. For instance, declarations of national emergencies must “immediately be 12 transmitted to the Congress and published in the Federal Register.” 50 U.S.C. § 1621(a). The 13 President must comply with extensive congressional reporting requirements pertaining to that 14 declaration. Id. § 1641(a)-(c). Congress may terminate a national emergency through a joint 15 resolution that is subject to fast track procedures, and Congress must meet “[n]ot later than six 16 months after a national emergency is declared, and [every six months thereafter],” to consider 17 whether the emergency shall be terminated. Id. § 1622(a)-(c). 18 19 20 21 22 23 24 25 26 DISCUSSION I. Legal Standard A preliminary injunction “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted). A plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (citation omitted). A “possibility” of irreparable harm is insufficient; irreparable harm 27 28 and Delegated Emergency Powers, 94th Cong., 2d Sess., The NEA Source Book: Legislative History, Texts, and Other Documents, at 3-9 (1976) (hereinafter “NEA Source Book”). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 16 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 28 of 52 1 must be likely absent an injunction. Id.; see also Winter v. NRDC, 555 U.S. 7, 22 (2008). 2 Alternatively, “‘serious questions going to the merits’ and a balance of hardships that tips 3 sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the 4 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the 5 public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 6 Plaintiffs bear the burden of demonstrating that each of these four factors is met. DISH Network 7 Corp. v. FCC, 653 F.3d 771, 776-77 (9th Cir. 2011). They fail to meet that burden. 8 II. 9 10 Plaintiffs Are Unlikely To Succeed on the Merits of Their Claims. A. Core Aspects of this Dispute Are Not Justiciable. As a threshold matter, Plaintiffs are unlikely to succeed on the merits because their 11 claims are not justiciable. Several claims require the Court to speculate about the likely scope 12 and implementation of the Order, and those claims are not ripe. Others ask the Court to review 13 the propriety of the President’s national emergency determinations, presenting quintessential 14 “political questions.” And to the extent Plaintiffs challenge the President’s compliance with 15 IEEPA and the NEA, they lack a private right of action to do so. 16 17 18 19 20 21 22 23 24 25 26 27 1. Plaintiffs’ Claims Regarding the Scope of Action to Be Taken Under the Executive Order Are Not Ripe. Ripeness is a justiciability requirement through which courts seek to avoid premature litigation of disputes. See Thomas v. Union Carbide Agr. Prod. Co., 473 U.S. 568, 579-81 (1985). The doctrine has both constitutional and prudential components, the former “drawn . . . from Article III limitations on judicial power” and the latter “from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). The components are independent, so that a court may conclude that a claim is ripe “‘in the constitutional sense’” but is nevertheless prudentially unripe and unfit for review. Elkins v. Am. Honda Motor Co., No. 19-818-JLS-KES, 2020 WL 4882412, at *5 (C.D. Cal. July 20, 2020) (citation omitted); see also Shady Acres HOA v. Kittitas Cty., 815 F. App’x 181, 182 (9th Cir. 2020) (“‘prematurity and abstractness” present “insuperable obstacles” to judicial review 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 17 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 29 of 52 1 even where “jurisdiction is technically present’” (citation omitted)).9 The prudential ripeness 2 inquiry requires a court to evaluate two factors: first, “the fitness of the issues for judicial 3 decision,” and second “the hardship to the parties of withholding court consideration.” Shady 4 Acres, 815 F. App’x at 182 (citation omitted). Plaintiffs’ claims do not satisfy either factor. 5 First, Plaintiffs’ claims, though nominally facial, are premised on speculation regarding 6 the scope and impact of the Executive Order. See Mot. at 17-33 (overbreadth, vagueness, and 7 ultra vires theories). Those claims are not fit for review because the Secretary has not yet issued 8 any “final . . . word” on which transactions will be prohibited. Cal. Dep’t of Educ. v. Bennett, 9 833 F.2d 827, 833 (9th Cir. 1987). Judicial review at this juncture would therefore “interfere 10 with the [Government’s] decision making process.” Id. And because the Secretary has not yet 11 acted, adjudicating Plaintiffs’ claims would require speculation about how the Order will be 12 implemented and thus entangle the court “‘in abstract disagreements over administrative 13 policies’” before a “‘decision has been formalized and its effects felt in a concrete way by the 14 challenging parties.’” Id. (citation omitted). 15 Plaintiffs also have not demonstrated any hardship from awaiting a decision by the 16 Secretary before adjudicating their claims. The Secretary’s decision is expected within three 17 days of the Court’s hearing on Plaintiffs’ motion, and although Plaintiffs claim in the meantime 18 to be searching for alternatives, those alleged efforts have already been expended, see infra at 37, 19 and are unlikely to be materially increased by waiting a few days for the Secretary to issue his 20 decision. 21 Finally, although Plaintiffs invoke the relaxed ripeness standard for preenforcement 22 challenges under the First Amendment, even “a party bringing [such a] challenge must . . . 23 present a ‘concrete factual situation . . . to delineate the boundaries of what conduct the 24 government may or may not regulate without running afoul’ of the Constitution.” Alaska Right 25 9 26 27 28 The Supreme Court has suggested that the prudential ripeness doctrine may be in tension with “a federal court’s obligation to hear and decide” cases within its jurisdiction. Clark v. City of Seattle, 899 F.3d 802, 809 n.4 (9th Cir. 2018) (citation omitted). However, the Court has not overruled the doctrine, see id., and courts in this Circuit have continued to apply it. See, e.g., Kohn v. State Bar of Cal., No. 20-CV-04827-PJH, 2020 WL 4701092, at *4 (N.D. Cal. Aug. 13, 2020) (dismissing for lack of prudential ripeness); Elkins, 2020 WL 4882412, at *5 (same). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 18 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 30 of 52 1 to Life PAC v. Feldman, 504 F.3d 840, 849-50 (9th Cir. 2007). Therefore, the Court could 2 proceed to the merits “only upon a showing that [Plaintiffs are] ‘immediately in danger of 3 sustaining a direct injury as a result of” the Executive Order. Id. at 851-52 (emphasis added, 4 punctuation omitted). Yet there is no such “immediate” danger because the Secretary has not yet 5 defined the scope of the Executive Order, and no such criminal or civil enforcement could take 6 place until he does so. Indeed, Plaintiffs’ claims are not pre-enforcement suits at all; rather, they 7 seek judicial intervention before the Secretary has even defined the relevant prohibitions that 8 could give rise to enforcement. Plaintiffs cite no case suggesting that such judicial interference 9 with an agency’s pending deliberative process is ever warranted, much less that it would be 10 appropriate in a context “implicat[ing] [the] sensitive and weighty interests of national security 11 and foreign affairs.” Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010); see also 12 U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 723 (1990) (noting “the presumption of regularity 13 and constitutionality” to which government action is entitled). 10 14 2. 15 Because the Secretary has not yet taken action to implement the WeChat Order, Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Challenges to the President’s National Security Determinations Are Not Justiciable. have focused their attack on the Executive Order itself, asserting that “there is no bona fide national security concern regarding WeChat,” Mot. at 3; and that, if there is, invocation of IEEPA “is not a proportionate or appropriate response,” id. at 25. See also id. at 12-14, 26-29. Those claims, however, are not justiciable: “there is no precedent for a court overriding a President’s discretionary judgment as to what is and is not an emergency”; to the contrary, “the Ninth Circuit has characterized ‘the declaration or continuance of a national emergency’ as an ‘essentially political question.’” California v. Trump, 407 F. Supp. 3d 869, 890-91 (N.D. Cal. 2019) (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986); United 10 Relying on speculation to invalidate the Executive Order would be especially improper in light of the Order’s statement that it applies except as “provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order.” Exec. Order § 1(b). Cf. Alaska Right to Life PAC, 504 F.3d at 849-50 (claims not fit for review where state court had stated that challenged law “should be interpreted in a manner that does not infringe First Amendment rights”). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 19 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 31 of 52 1 States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1080-81 (9th Cir. 1982)). Thus, “whether 2 [a] national emergency truly exists” in respect to WeChat or requires invocation of the 3 President’s powers under IEEPA are “nonjusticiable political questions.” Id.11 The Court should 4 reject Plaintiffs’ unsupported invitation to second guess the President’s national security 5 determinations. 6 3. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Lack a Cause of Action to Challenge the President’s Compliance with IEEPA and the NEA. Similarly, insofar as Plaintiffs’ arguments arise from the President’s alleged lack of compliance with the NEA and IEEPA, those statutes contain no private right of action. “Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Where the necessary intent is absent, “a cause of action does not exist and courts may not create one.” Id. at 286-87. The NEA and IEEPA—which as noted above, confer highly discretionary authority upon the President to act quickly and decisively to address threats to the United States—have no provision creating a private right of action for individuals purportedly affected by the President’s national emergency declaration. Those statutes do not contain the sort of “rights-creating language” that courts find “critical” to imputing to Congress an intent to create a private right of action. Id. at 288-89 (distinguishing between the rights-creating language, “[n]o person . . . shall . . . be subjected to discrimination,” and its antithesis, “[e]ach Federal department and agency . . . is authorized and directed to effectuate the provisions of [the statute]”); see also Brunner v. Ohio Republican Party, 555 U.S. 5 (2008) (per curiam). Because the NEA and IEEPA do not “explicitly confer[] [any] right directly on” individuals affected by an IEEPA Executive Order, see Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n.13 (1979), but instead contain provisions 11 See also, e.g., Ctr. for Biological Diversity v. Trump, No. 1:19-CV-00408 (TNM), 2020 WL 1643657, at *10 (D.D.C. Apr. 2, 2020) (“Although presidential declarations of emergencies . . . have been at issue in many cases, no court has ever reviewed the merits of such a declaration,” in part because matters of “foreign policy and national security are rarely proper subjects for judicial intervention”); Clancy v. OFAC, No. 05-C-580, 2007 WL 1051767, at *6 (E.D. Wis. Mar. 31, 2007), aff’d, 559 F.3d 595 (7th Cir. 2009) (national security determinations under IEEPA are “‘so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference’” (quoting Regan, 468 U.S. at 242)). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 20 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 32 of 52 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 33 of 52 1 supports the view” that courts may not order the President to “perform particular executive … 2 acts”). Accordingly, there is no basis for the Court to conclude that the President is subject to an 3 implied cause of action in equity when, as here, there is neither historical precedent nor express 4 congressional language supporting Plaintiffs’ claims. See also Sierra Club v. Trump, 963 F.3d 5 874, 891 (9th Cir. 2020) (“Whether [a plaintiff] can assert an equitable ultra vires cause of action 6 turns on ‘whether the relief [it] request[s] . . . was traditionally accorded by courts of equity.’”). 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Any Remaining Claims Fail Because Plaintiffs Cannot Show that the WeChat Order Is Unlawful in Every Conceivable Application. As to any justiciable claims, Plaintiffs are unlikely to succeed because they cannot meet the high bar applicable to facial constitutional challenges. Such challenges are disfavored for numerous reasons: they “often rest on speculation” and thus “raise the risk of ‘premature interpretation . . . on the basis of factually barebones records.’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-51 (2008) (citation omitted). And they “run contrary to the fundamental principle of judicial restraint that courts should neither ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ nor ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” Id. at 450 (citation omitted). Accordingly, the Court can invalidate the Executive Order only if Plaintiffs show that it is “‘unconstitutional in every conceivable application,’ or . . . ‘seek[s] to prohibit such a broad range of protected conduct that [it is] unconstitutionally overbroad.’” Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1197 (9th Cir. 2016) (citations omitted). As set forth below, they cannot. 1. Plaintiffs Are Not Likely to Succeed on Their Vagueness Claims. Plaintiffs first contend that the Executive Order is unconstitutionally vague under the Fifth Amendment because it does not define the prohibited “transaction[s],” Mot. at 17, so that people “‘of common intelligence must necessarily guess at its meaning.’” Id. at 17, 18 (citing FCC v. Fox. Television Stations, Inc., 567 U.S. 239, 253 (2012). Plaintiffs need not guess at the meaning of the Order, however, because under its express terms, “the Secretary shall identify the [prohibited] transactions.” Exec. Order § 1(c) (emphasis added). Plaintiffs or other WeChat U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 22 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 34 of 52 1 users thus could not reasonably fear prosecution, or be chilled from using WeChat, until he does 2 so. Cf. Wolfson v. Brammer, 616 F.3d 1045, 1062-63 (9th Cir. 2010) (plaintiff’s fear must be 3 “plausible and reasonable” and “imminent,” not merely that a law “might [later] be construed in 4 a particular manner”); see also id. at 1057 (“Without a possibility of the challenged canons being 5 enforced, those canons will [not] have a chilling effect on speech.”). 13 Nor are Plaintiffs correct 6 to suggest that the Court should evaluate the clarity of the Order, standing alone, because “[t]he 7 EO will become effective on September 20, 2020 regardless of whether the Secretary . . . issues 8 any clarifying regulations before that date.” Mot. at 19. The Order is not self-executing: it 9 prohibits only those transactions that are “identified by the [Secretary] under section 1(c) of this 10 order.” Exec. Order § 1(a).14 11 Plaintiffs’ related concerns about selective and discriminatory enforcement fail for the 12 same reason: there can be no enforcement before the Secretary identifies the relevant 13 transactions, and the Court plainly cannot assume that the Secretary’s as-yet-to-be-issued 14 decision will lack the requisite clarity. See Or. State Police Officers Ass’n v. Peterson, 979 F.2d 15 776, 778 (9th Cir. 1992) (courts do not “assume as a matter of course that . . . units of 16 government will violate the law” or that “other contingencies will occur” (citations omitted)). 17 All of Plaintiffs’ cited cases regarding vague criminal statutes, city ordinances, and final agency 18 policies involved laws and regulations that were already enforceable (and in several cases, had 19 actually been enforced), not Executive Orders directing further administrative action before 20 taking effect. See Mot. at 18 (citing cases). Indeed, Plaintiffs’ decision to bring this lawsuit 21 22 23 24 13 Plaintiffs’ due process theory also fails in light of IEEPA’s scienter requirements for criminal liability. See United States v. Amirnazmi, 645 F.3d 564, 589-90 (3d Cir. 2011) (rejecting vagueness challenge to IEEPA regulation because “‘this is a case where ignorance of the law is a defense”); 50 U.S.C. § 1705(c) (restricting criminal liability to those who act “willfully”). 14 25 26 27 28 This framework is not unique; IEEPA orders commonly identify broad subject matter of concern while delegating the details of implementation and enforcement to one or more administrative agencies. See, e.g., Exec. Order 13726, Blocking Propery and Suspending Entry Into the United States of Persons Contributing to the Situation in Libya, 81 Fed. Reg. 23559 § 1(a)(i) (Apr. 19, 2016) (charging the Secretary of the Treasury with determing which persons are “responsible for . . . actions or policies that threaten the peace, security, or stability of Libya”); id. § 8 (delegating further functions). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 23 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 35 of 52 1 before the Secretary takes final action is why they can even complain of inadequate guidance, a 2 fact that evinces not a due process violation, but an unripe claim, see supra at 17-19. 3 2. 4 Plaintiffs Are Not Likely to Succeed on Their First Amendment Claims. a. 5 6 The Executive Order Is Content Neutral So Strict Scrutiny Does Not Apply. The Executive Order does not target protected expression; it targets transactions with 7 Tencent relating to WeChat. While the Order’s implementation may incidentally impact speech 8 that would otherwise occur on WeChat, any such effects are neutral with respect to content, and 9 will affect, at most, only the time, place, or manner of speech. Thus, the Order need not satisfy 10 strict scrutiny or “be the least restrictive or least intrusive means” of promoting a governmental 11 interest; it must simply “promote[] a substantial government interest that would be achieved less 12 effectively” in its absence. Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).15 13 Seeking to evade this more permissive standard, Plaintiffs try to pigeonhole the 14 Executive Order as a content-based restriction on speech. The Court should reject this effort. A 15 speech restriction is content-based if it facially “draws distinctions based on the message a 16 speaker conveys . . . . [or] cannot be justified without reference to the content of the regulated 17 speech, or [if it was] adopted by the government because of disagreement with the message the 18 speech conveys[.]” Reed, 576 U.S. at 163-64 (cleaned up). None of these circumstances is 19 present here. No distinctions based on content appear on the face of the Executive Order, and 20 the justifications of the Order have nothing to do with the content of, or disagreement with, any 21 speech made on WeChat, but rather are premised on the PRC’s ability to use the app against core 22 national security interests of the United States. Exec. Order, 85 Fed. Reg. at 48641; see also 23 U.S. Strategic Approach to PRC at 5, Ex. 22 (“Beijing has intervened in sovereign nations’ 24 internal affairs to engineer consent for its policies.”). Indeed, Plaintiffs concede that the 25 Executive Order affects expression “irrespective of content or the speaker’s intent[.]” Mot. at 2 26 (emphasis added). 27 28 15 By contrast, a restriction that distinguishes based on the content of speech is subject to the demanding standard of strict scrutiny. See Reed v. Town of Gilbert, 576 U.S. 155, 166 (2015). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 24 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 36 of 52 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 37 of 52 1 U.S. 622, 658 (1994). In other words, strict scrutiny applies to speaker-based laws when they 2 function as a proxy for content discrimination. That is not the case here. 3 b. 4 The Executive Order Satisfies Intermediate Scrutiny. A content-neutral regulation survives constitutional scrutiny so long as it “advances 5 important governmental interests unrelated to the suppression of free speech and does not burden 6 substantially more speech than necessary to further those interests.” Pac. Coast Horseshoeing 7 Sch., Inc. v. Kirchmeyer, 961 F.3d 1062, 1068 (9th Cir. 2020) (citation omitted). As a 8 component of this analysis, courts also examine whether the regulation “leave[s] open adequate 9 alternative opportunities” for speech or expression. See Lone Star Sec. & Video, 827 F.3d at 10 1202. The Executive Order satisfies each of these requirements. 11 i. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Executive Order Advances Important Government Interests. The Executive Order is founded on Government interests of paramount importance: preventing the Chinese Government from using WeChat to surveil the American people, censor information, sow misinformation, and collect and use “vast swaths” of personal and proprietary information from American users to advance its own interests. See 85 Fed. Reg. at 48641. Such “sensitive and weighty interests of national security and foreign affairs” constitute critically important Government interests for purposes of a First Amendment analysis. Humanitarian Law Project, 561 U.S. at 33-34; see also Clancy, 2007 WL 1051767, at *6 (noting that IEEPA sanctions “relate[] to national security, the most compelling governmental interest”) (citing Haig v. Agee, 453 U.S. 280, 307 (1981)).17 Plaintiffs suggest that the Order does not provide sufficient “evidence” of this threat to satisfy the Constitution. Mot. at 26. That is incorrect. “[W]hen the President adopts ‘a preventive measure . . . in the context of international affairs and national security,’ he is ‘not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] 17 Restrictions on speech are frequently justified by far less weighty interests. See, e.g., Turner Broad. Sys., 512 U.S. at 647 (“protecting noncable households from loss of regular television broadcasting service” was an “important and substantial federal interest”); One World One Family Now, 76 F.3d at 1013 (same as to “visual blight caused by unsightly vendor stands”). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 26 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 38 of 52 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 39 of 52 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 40 of 52 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 41 of 52 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 42 of 52 1 491 U.S. at 790-91. This is a low bar, as the Ninth Circuit has “cautioned against invalidating 2 government regulations for failing to leave open ample alternative channels unless the regulation 3 foreclose[s] ‘an entire medium of public expression[.]’” G.K. Ltd. Travel, 436 F.3d at 1074 4 (emphasis added). In other words, the Executive Order should be upheld unless it completely 5 prohibits an entire type of speech, such as: the distribution of pamphlets in a city, providing 6 handbills on public streets, door-to-door solicitation, live entertainment, and signs outside one’s 7 home. See City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994) (collecting cases). Content-neutral 8 regulations are generally upheld unless the plaintiffs’ “overall ‘ability to communicate 9 effectively is threatened.’” Lone Star Sec. & Video, Inc., 827 F.3d at 1202 (citation omitted). 10 Plaintiffs do not argue that the Executive Order forecloses an “entire medium” of 11 communication, and for good reason. WeChat is not “an entire medium” of communication; it is 12 a single mobile application with numerous alternatives, as Plaintiffs concede. See, e.g., Decl. of 13 Wanning Sun ¶ 34, ECF No. 17-11 (explaining that many users of WeChat are switching over to 14 other social media applications such as “Line, Telegraph, and WhatsApp”); Decl. of Elaine Peng 15 ¶ 28, ECF No. 17-5 (conceding that she has “started the [process] of switching to Line”); Decl. 16 of Xiao Zhang ¶ 22, ECF No. 17-6 (explaining that he has starting preparing a website to replace 17 use of WeChat). To be sure, Plaintiffs aver that such alternatives may be less preferable due to 18 cost or functionality, but “[t]he First Amendment does not guarantee the right to employ every 19 conceivable method of communication at all times and in all places.” See Taxpayers for Vincent, 20 466 U.S. at 812. Indeed, both the Supreme Court and the Ninth Circuit have repeatedly rejected 21 the argument advanced by Plaintiffs, that their preferred method of communication must be 22 preserved when alternatives are available. See, e.g., id.; Christian Legal Soc. v. Martinez, 561 23 U.S. 661, 690 (2010) (upholding bar on “specific methods of communication,” in part because 24 “the advent of electronic media and social-networking sites reduces the importance of those 25 [specific] channels”); Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949) (“That more people may be 26 more easily and cheaply reached by sound trucks . . . is not enough to call forth constitutional 27 protection . . . when easy means of publicity are open.”); Lone Star Sec. & Video, Inc., 827 F.3d 28 at 1202 (“[W]e will not invalidate the mobile billboard bans merely because they restrict U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 31 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 43 of 52 1 Appellants’ preferred method of communication.”); Foti v. City of Menlo Park, 146 F.3d 629, 2 641 (9th Cir. 1998) (upholding restrictions on picket signs, despite claim that signs at issue were 3 “the most effective means” of certain speech). 20 4 Plaintiffs’ related argument, that alternatives will be less effective for communicating 5 with persons in China, Mot. at 22-24, has no bearing on the analysis. That fact stems from the 6 actions of the Chinese Government, not the United States. See Sun Decl. ¶ 14 (“Facebook, 7 WhatsApp, and Twitter . . . and several other[ social media applications] – are banned in 8 China.”). It is that “Great Firewall” of the PRC, not the Executive Order, that limits the ability 9 of Americans to communicate with individuals in China. The First Amendment does not require 10 unfettered access to a social media application supported by the PRC and used against the 11 interests of the United States, simply because China has declined to make other alternatives 12 available for the Chinese people. Because the Executive Order leaves open ample alternative 13 avenues of communication, it is constitutional under the First Amendment. 14 3. Plaintiffs Are Not Likely to Succeed on their Ultra Vires Claims. 15 Plaintiffs’ final theory, that the Executive Order is ultra vires because it conflicts with 50 16 U.S.C. § 1702(b), Mot. at 31-34, is similarly lacking in merit. Even assuming the Court can reach 17 this argument when Congress expressly disclaimed any intent to create a cause of action under 18 section 1702, see supra at 20-21 & n.12, the exceptions to the President’s IEEPA authority in 19 section 1702(b) do not preclude the President’s actions. 20 First, there is no bar under subsection (b)(1). That provision removes from the 21 President’s IEEPA authority the ability to prohibit or regulate “any personal communication, 22 which does not involve a transfer of anything of value.” As set forth above, the Executive Order 23 does not prohibit personal communications; it prohibits (as-yet-to-be-identified) “transactions . . . 24 with Tencent . . . or any subsidiary,” relating to WeChat. Exec. Order § 1(a) (emphasis added). 25 26 27 28 20 See also Def. Distributed v. U.S. Dep’t of State, 121 F. Supp. 3d 680, 695 (W.D. Tex. 2015) (First Amendment permitted prohibition on Internet posting of firearm blueprints, as restriction “does not impose an insurmountable burden on [p]laintiffs’ domestic communications[,]” and plaintiffs were “free to disseminate the computer files at issue domestically in public or private forums, including via the mail or any other medium that does not provide the ability to disseminate the information internationally”), aff’d, 838 F.3d 451 (5th Cir. 2016). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 32 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 44 of 52 1 While such prohibitions could as a practical matter impact a user’s ability to use the app to 2 communicate, communications may continue to occur through a range of other platforms. See 3 supra at 30-32. Furthermore, communications conducted through WeChat do involve a transfer 4 of value: users exchange their personal data and content for the right to use WeChat services. 5 See Ex. 25, WeChat Terms of Service, at 7 (“When you . . . use . . . WeChat[,] . . . you 6 understand and agree that . . . you are giving us and our affiliate companies a perpetual, non- 7 exclusive, transferable, sub-licensable, royalty-free, worldwide license to use Your Content (with 8 no fees or charges payable by us to you))”; see also Mot. at 12 claiming that “the app’s Terms 9 and Conditions [are] agreed to by its user base”). Section 1702(b)(1) is thus inapplicable. 10 Sections 1702(b)(2) and (b)(4), regarding humanitarian aid and transactions incident to 11 travel, also pose no bar to the Order because they do not regulate or prohibit these activities, 12 either directly or indirectly. Plaintiffs’ theory (to the extent discernable) appears to be that 13 because WeChat users sometimes use the app as a mechanism to arrange these activities, or 14 because such arrangements are allegedly more convenient when done through WeChat, any 15 prohibition on WeChat is akin to a prohibition on the activities themselves. See Mot. at 33. That 16 is incorrect. Millions of people in this country arrange travel and charitable donations every day 17 without the use of WeChat, and Plaintiffs are free to use a panoply of other mechanisms to do the 18 same, including through such widely available means as telephone, email, a vast number of 19 eCommerce sites, online banking services, facsimile, credit card services, wire transfers, instant 20 messaging, and a range of other social media apps and online services, as well as translation 21 software if necessary21; they simply may not be able to use WeChat. If Plaintiffs may face 22 obstacles or burdens in arranging charitable activities or travel plans without access to WeChat, 23 those obstacles are not even “indirect” regulation as they flow not from the Executive Order but 24 from the anticompetitive and restrictive policies of the PRC, which have excluded Western social 25 media companies from operation in mainland China and promoted the spread of Tencent. 26 27 28 21 A quick Google search for “English Mandarin translation” and “English Mandarin translation Chinese characters” immediately brings up a host of software offering these services. U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 33 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 45 of 52 1 Finally, section 1702(b)(3) is also inapposite. That provision excepts from the 2 President’s authority under IEEPA the power to regulate or prohibit the importation or 3 exportation of information or informational materials. But WeChat itself is not “information” or 4 “information materials”; it is a set of services through which such information can be conveyed. 5 See generally WeChat Terms of Service, Ex. 25 (repeatedly referring to the app as a suite of 6 “services”). The regulation of a single service provider that facilitates the transmission of 7 information to the PRC is not akin to regulating or prohibiting transmission of information or 8 informational materials themselves, or even an entire “medium of transmission.” Any 9 construction that would collapse that distinction between restricting the flow of information writ 10 large, and restricting a single service provider (with ties to a foreign adversary), would amount to 11 a wholesale truncation of the President’s ability to protect the country’s information supply 12 chains in a way that Congress could not have intended. For example, it is unfathomable that 13 Congress intended through section 1702(b) to limit the President’s ability to prevent a foreign 14 government from setting up a parallel postal system in the United States or dominating the 15 country’s data services. Yet that absurd conclusion would necessarily flow from interpreting 16 subsection (b)(3) in the way Plaintiffs suggest. There is no indication that Congress intended 17 that outcome. See King v. Burwell, 576 U.S. 473, 494 (2015) (rejecting interpretation because it 18 was “implausible that Congress meant the Act to operate in this manner”). 22 19 To the extent Plaintiffs suggest that the app itself (rather than user content) is an 20 “informational material” within the meaning of subsection (b)(3), that too is plainly incorrect. 21 The list of examples of “informational materials” in this subsection all pertain to distinct types of 22 23 24 25 26 27 28 22 There is every indication that Congress did not so intend. The President issued the ITCS Order more than a year ago, and Congress has taken no action to suggest that he is acting outside of his authority. Moreover, Congress has expressly authorized the President to “block and prohibit all transactions” with foreign persons that facilitate or benefit from the significant appropriation of certain United States information through “economic or industrial espionage in cyberspace,” 50 U.S.C. § 1708(b)(2), thereby evincing an understanding that the President may prohibit and regulate the electronic transmission of information in cyberspace with respect to companies affiliated with China. The many expressions of Congressional concern about PRCrelated technology companies also support the President’s invocation of IEEPA in these circumstances. See supra at 4-11. U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 34 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 46 of 52 1 media; i.e., physical embodiments of information in fixed form—such as “films, posters, 2 phonograph records, photographs, microfilms, microfiche, tapes, compact disks,” and the like. 3 50 U.S.C. § 1702(b)(3). WeChat is categorically different. It is, by its own terms, a “diverse” 4 set of services, that (among other things) manipulates, collects, processes, transmits, brokers, and 5 sells information, see WeChat Terms of Service at 2-6, Ex. 25, thus bearing no resemblance to 6 the list of fixed media in the statutory text. See Yates v. United States, 574 U.S. 528, 546 (2015) 7 (“Had Congress intended ‘tangible object’ in § 1519 to be interpreted so generically[,] . . . 8 Congress would have had no reason to refer specifically to [the narrower examples given]”); 9 CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 295 (2011) (invoking the canon 10 “ejusdem generis to ensure that a general word will not render specific words meaningless”). 23 11 Moreover, if WeChat was simply an “informational material[],” there would be no need for a 12 Terms of Service to define the user’s ongoing legal relationship with WeChat. 13 Finally, even if the WeChat app otherwise fell within section 1702(b)(3), it would be 14 excluded from that carveout by the second sentence of that paragraph, which excepts from the 15 exception “acts . . . prohibited by chapter 37 of Title 18.” Chapter 37 of Title 18, in turn, 16 prohibits transmission of “information relating to the national defense” to any foreign 17 government with reason to believe that it could “be used to the injury of the United States or to 18 the advantage of a foreign nation.” 18 U.S.C. § 794; see also id. §§ 793(e), (f) (prohibiting 19 similar activities, whether willful or grossly negligent in violation of a duty of trust). Because 20 the WeChat Order takes action to prevent exactly such harms, and contemplates that the vast 21 swaths of user information collected by WeChat is information relating to the national defense, it 22 falls outside any limitations otherwise posed by section 1702(b)(3). 23 4. 24 25 26 27 28 Plaintiffs Have Waived Any Remaining Claims on this Motion. In a single footnote Plaintiffs briefly allude to their claim under RFRA, but present no argument as to why they are entitled to a preliminary injunction on the basis of this claim. See 23 See also 31 C.F.R. § 560.210(c)(2) (interpreting section 1702(b)(3) not to extend to “information or informational materials not fully created . . . at the date of the transactions, or to the . . . alteration . . . of informational materials, or to the provision of [certain] services.”); Amirnazmi, 645 F.3d at 587 (upholding that interpretation as reasonable under Chevron). U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 35 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 47 of 52 1 Mot. at 23 n. 4 (stating without explanation that “[t]he EO places a substantial burden on 2 Plaintiffs’ ability to practice their religion”). Plaintiffs have accordingly waived any argument 3 founded on their RFRA claim at this stage. See, e.g., Recycle for Change v. City of Oakland, 856 4 F.3d 666, 673 (9th Cir. 2017) (holding that plaintiff waived an argument “because it never raised 5 it in its briefs, other than in a terse one-sentence footnote”). Moreover, Plaintiffs’ claims of 6 inconvenience regarding certain religious activities are entirely conclusory and do not on their 7 face suggest any substantial burden on the exercise of religious. 8 III. 9 Plaintiffs Have Failed To Establish Irreparable Harm. A preliminary injunction serves the “limited purpose” of “preserv[ing] the relative 10 positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 11 U.S. 390, 395 (1981). Accordingly, “[a]n essential prerequisite” before granting a preliminary 12 injunction is a showing that irreparable injury is likely in the absence of an injunction. See 13 Dollar Rent A Car of Wash., Inc. v. Travelers Indem. Co., 774 F.2d 1371, 1375 (9th Cir. 1985); 14 Winter, 555 U.S. at 19-20. “[I]rreparable harm” is traditionally defined as harm for which there 15 is no adequate legal remedy, such as an award of damages. Ariz. Dream Act Coal. v. Brewer, 16 855 F.3d 957, 978 (9th Cir. 2017). Such harm must also be “concrete and particularized.” Koff 17 v. Ahern, No. 14-cv-04680, 2015 WL 1050167, at *3 (N.D. Cal. Mar. 9, 2015). This standard is 18 demanding: “Mere injuries, however substantial, in terms of money, time and energy . . . are not 19 enough,” and “[t]he possibility that adequate . . . relief will be available at a later date . . . weighs 20 heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). 21 Plaintiffs contend that they have suffered a variety of injuries justifying injunctive relief, 22 including experiencing “confusion, anxiety, fear, and . . . panic[,]” as well as devoting “time 23 researching the possible scope of the EO.” Mot. at 35. However, as evidenced by Plaintiffs’ 24 failure to cite a single case supporting their argument, see id. at 35-37, these purported injuries 25 are insufficient to justify the extraordinary relief they demand. 26 First, Plaintiffs argue that “[u]ncertainty and fear of being subject to criminal prosecution 27 and/or civil penalties for merely using WeChat has caused confusion, anxiety, and fear among 28 Plaintiffs.” Id. But these concerns are entirely conjectural given that the Secretary has not yet U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 36 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 48 of 52 1 defined the prohibited transactions, and as such fail to constitute an irreparable injury. See 2 Koller v. Brown, 224 F. Supp. 3d 871, 879 (N.D. Cal. 2016); Goldie’s Bookstore, Inc. v. 3 Superior Court, 739 F.2d 466, 472 (9th Cir. 1984). Plaintiffs similarly speculate that they will 4 be “cut off from [their] entire social network[,]” Mot. at 35, or that the Order will “alter [their] 5 legal rights and obligations” at all, id. at 37. Such allegations fall short of showing “immediate 6 threatened injury.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) 7 (citation omitted); accord Winter, 555 U.S. at 22 (injury must be likely, not possible). 8 Plaintiffs also describe harms that are not adequately concrete. These include Plaintiffs’ 9 feelings of “uncertainty,” “fear,” “confusion,” “anxiety,” “concern,” “worr[y],” and low morale, 10 Mot. at 35-36. Cf. Clay v. Fort Wayne Cmty. Sch., 76 F.3d 873, 877 n.4 (7th Cir. 1996) 11 (“[A]morphous psychological injuries [are] insufficient to confer standing.”). While Plaintiffs 12 may be frustrated that the Secretary has not yet issued regulations, Mot. at 35, or that they may 13 have to engage in a data-transfer process that they find “mind-numbing[,]” id. at 35-37, these are 14 not cognizable injuries, let alone irreparable ones. Cf. Gest v. Bradbury, 443 F.3d 1177, 1182 15 (9th Cir. 2006) (“[F]eelings of frustration . . . are not sufficiently concrete to constitute the 16 ‘injury-in-fact’ required for Article III standing.” (citations omitted)); see also Caribbean Marine 17 Servs. Co., 844 F.2d at 676 (“mere . . . inconvenience will not support the crew members’ claim 18 of irreparable injury to their constitutional rights”). Moreover, to the extent these feelings flow 19 from uncertainty regarding the final impact of the Executive Order, they will not be redressed by 20 preliminary relief, which is time-limited and subject to review and thus uncertain itself. 21 Many of the other alleged harms identified by Plaintiffs pertain to events that have 22 already occurred. See Mot. at 35 (“Plaintiffs have spent an enormous amount of time 23 researching the possible scope of coverage of the EO.”); id. at 36 (“Some of Plaintiff Chihuo 24 Inc.’s clients have already stopped working with the company[.]”); id. (“Plaintiffs have been 25 forced to spend their limited time, energy, and resources researching other U.S. based social 26 media platform options.”). Such past harms, even if true, are insufficient, as “[t]he purpose of a 27 preliminary injunction is not to remedy past harm but to protect plaintiffs from irreparable injury 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 37 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 49 of 52 1 that will surely result without [its] issuance.” Conte v. Transglobal Assets, No. 2:12-cv-01005, 2 2012 WL 4092717, at *1 (D. Nev. Sept. 17, 2012) (citation omitted). 3 In addition, insofar as Plaintiffs allege that their business interests have suffered or will 4 suffer, see Mot. at 36-37, such harms are not irreparable and thus are not a proper basis for a 5 preliminary injunction. See, e.g., Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at 1202. The 6 same is true of Plaintiffs’ assertions regarding their use of “time, energy, and resources[,]” Mot. 7 at 36; see also id. at 35; Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at 1202. 8 Nor can Plaintiffs advance their argument by claiming that “[t]he EO . . . deprives 9 Plaintiffs of their First and Fifth Amendment rights, and therefore constitutes irreparable harm.” 10 Mot. at 38. This pro forma statement is insufficient to carry Plaintiffs’ burden, particularly in 11 light of Defendants’ demonstration above that Plaintiffs’ rights have not been violated. Further, 12 the cases on which Plaintiffs rely, Mot. at 37, reveal the comparative weakness of their claim of 13 irreparable harm. See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (plaintiffs 14 threatened with detention); Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017) (order 15 purportedly “separated families” and “stranded the States’ residents abroad”). The First 16 Amendment cases cited by Plaintiffs likewise found irreparable harm based on an actual 17 deprivation of constitutional rights. See Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 18 2012), cited in Mot. at 37 (plaintiffs harmed “by the denial of their right to observe this 19 execution”); Warsoldier v. Woodford, 418 F.3d 989, 1001 (9th Cir. 2005), cited in Mot. at 37-38 20 (challenged policy “forces [the plaintiff] to choose between following his religious beliefs and 21 suffering continual punishment, and abandoning his religious beliefs to avoid such punishment”). 22 Here, by contrast, Plaintiffs face not a deprivation, but at most a potential and incidental burden 23 on their ability to communicate through a medium they prefer. See Goldie’s Bookstore, Inc., 739 24 F.2d at 472 (explaining that only the “purposeful . . . suppression of speech constitutes 25 irreparable harm for preliminary injunction purposes”); see also Hohe v. Casey, 868 F.2d 69, 73 26 (3d Cir. 1989) (“[I]t is the ‘direct penalization, as opposed to incidental inhibition, of First 27 Amendment rights [which] constitutes irreparable injury.’” (citation omitted)). 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 38 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 50 of 52 1 IV. 2 The Balance of the Equities Weighs Against A Preliminary Injunction. Plaintiffs likewise cannot show the balance of equities tips in their favor. Drakes Bay 3 Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). At stake here are significant national 4 security and foreign policy interests, that weigh strongly against an injunction. See Winter, 555 5 U.S. at 24; cf. United States v. South Carolina, 720 F.3d 518, 533 (4th Cir. 2013); Escamilla v. 6 M2 Tech., No. 12-634, 2013 WL 4577538, at *4 (E.D. Tex. Aug. 27, 2013). Additionally, any 7 entry of an order that substitutes the views of WeChat users for that of the Executive Branch 8 would not serve the public interest. See Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 9 552 (1937) (statutory scheme “is in itself a declaration of public interest and policy which should 10 be persuasive” to courts). The injunction Plaintiffs seek would frustrate and displace the 11 President’s determination of how best to address threats to national security. Milena Ship Mgmt. 12 Co. v. Newcomb, 804 F. Supp. 846, 854 (E.D. La. 1992) (holding that injunction “unblocking the 13 plaintiffs’ vessels and bank accounts before a full hearing on the merits of OFAC’s blocking 14 decisions would risk impermissible interference with Executive and Congressional decisions”). 24 15 By comparison, any harm that Plaintiffs may suffer—including “expend[ing] resources” 16 and harboring unfounded “worry,” Mot. at 38—is minimal. This is especially so given that the 17 Secretary will be issuing regulations delineating the identified transactions a mere three days 18 after Plaintiffs’ motion is heard by this Court. Nor can Plaintiffs bolster their argument by 19 misconstruing the Executive Order as a “ban on speech, association, and religion in the United 20 States,” Mot. at 38, or “discrimination by a government entity on the basis of race, ethnicity, 21 nationality, national original, and alienage[,]” id. at 39-40. The Executive Order is nothing of the 22 sort, and Plaintiffs have not established otherwise. And insofar as Plaintiffs’ argument is 23 premised on their theory that the Executive Order violates their constitutional rights, see id., it 24 fails for the reasons discussed above. 25 26 27 28 24 Plaintiffs suggest these concerns are not weighty in light of the Order’s timing. Mot. at 38-39. But decisions regarding how to address threats from abroad “involve significant political ramifications[,]” and, “[a]ccordingly, the Court must defer to the Executive’s discretion on the timing of those . . . decisions.” Holy Land Found., 219 F. Supp. 2d at 74 n.28. And Plaintiffs offer no authority for the proposition that the President must disclose “evidence” to support his non-reviewable determination, particularly when that evidence may be privileged or classified. U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 39 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 51 of 52 Case 3:20-cv-05910-LB Document 22 Filed 09/08/20 Page 52 of 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Dated: September 8, 2020 Respectfully submitted, JEFFREY BOSSERT CLARK Acting Assistant Attorney General DAVID M. MORELL Deputy Assistant Attorney General DIANE KELLEHER Assistant Branch Director /s/ Serena M. Orloff SERENA M. ORLOFF MICHAEL DREZNER STUART J. ROBINSON Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch Ben Franklin Station, P.O. Box No. 883 Washington, DC 20044 Phone: (202) 305-0167 Fax: (202) 616-8470 E-mail: serena.m.orloff@usdoj.gov 15 16 Counsel for Defendants 17 18 19 20 21 22 23 24 25 26 27 28 U.S. WeChat Users Alliance, et al. v. Trump, et al., Case No. 3:20-cv-05910-LB Defendants’ Opposition to Motion for Preliminary Injunction 41