Feb 9, 2021
Ready to Rumble: WeChat Users vs. WeChat Users
Whose side are you on?: Part 2
NOTE: Today, Friday, Feb. 12, 2021 is Chinese New Year!
Two sets of Chinese-American citizen groups have filed lawsuits focused on their access to WeChat, an app created by Chinese company Tencent — but they make completely different demands and present conflicting narratives about the impact of the social media tool in the lives of Chinese-American citizens. The two suits (one filed in federal court and the other in state court) disagree fundamentally, including about whether or not WeChat should be regulated, whether WeChat causes deep social harm versus creates irreplaceable social benefit, and reinforces constitutional rights or suffocates them.
In our last post, “Deplatforming Religion: When Social Media Prays (Part 1),” we first introduced you to the WeChat users in federal court who want the Chinese company’s app freely accessible without U.S. government regulation. In Part 1 (“Deplatforming Religion”), we queried whether legal challenges are likewise viable avenues available to users deplatformed by Big Tech in the U.S. We received responses that officials of the U.S. government were not the parties who took action against the individual citizen accounts, and therefore legal challenge for suppressing or discriminating against speech is precluded. That rebuttal is only partially correct.
We now introduce, in the other corner, WeChat users who are also Chinese-American citizens in California. Whereas the first group of WeChat challengers filed in federal court, arguing constitutional claims such as religious repression, this separate group of private citizens and organizations filed suit in state court. There suit is directly against the company’s U.S. subsidiary units, rather than the U.S. government. The plaintiffs argue that Tencent’s mobile app surveils them extensively, censors their communications, and breaches their data privacy by sharing personal data with the Chinese government.
SEE COURT FILING: Citizen Power Initiatives for China, and Doe Plaintiffs 1–6 vs., Tencent America LLC, et.al., Superior Court of State of California, Santa Clara County (Jan. 8, 2021)
Big Tech’s Psychological Punch
These plaintiffs filed in the California state court (Superior Court of Santa Clara) because they seek relief, in part, from political suppression. They also demand monetary damages “for financial loss, emotional trauma and psychological stress.” As discussed previously in Part 1, such relief against a private company rests on rights created by state law. Federal court does not provide such remedies against corporations. Not all states have codified such guarantees, but California has. The plaintiffs request an injunction against the Chinese company’s alleged facilitation of foreign government intrusion and data mining.
EXCERPT FROM COURT FILING: The English philosopher and social theorist Jeremy Bentham designed a mechanism of social control called the Panopticon, a circular building where every person in the building could be monitored by a single guard in the center of the building who could not be directly observed. Bentham’s insight was that even though it was impossible for the guard to watch everyone at the same time, the inability of the people in the building to know whether they were being watched would tend to make them act as if they were being watched. WeChat’s censorship and surveillance practices function like a Panopticon — even in California.
As excerpted from the dramatic court papers above, the dichotomy with how the two sets of We-Chat users “live” on the social media app could not be more divergent. The view of the role WeChat plays in the second group’s immigrant experience in the United States — as an oppressive weapon of totalitarianism, starkly contradicts the depiction portrayed in the brief filed by the first set of WeChat users in federal court who view WeChat as an indispensable connection to loved ones in their homeland and their religious faith.
Our contention is simple: precedent in both WeChat cases will impact those banned participation on American tech social platforms. Similar to the WeChat lawsuit filed in federal court in opposition to the Trump Administration’s ban, whether or not you agree with the arguments of this second group of state court claimants, the mechanics of their state legal arguments are an instructive blueprint for citizens whose social accounts are censored by American tech giants.
Do you agree?
To further your consideration and to highlight the contrasting narratives of members within an immigrant group in one state, we provide a copy of pleadings from both cases. Each provides touching, illustrative views into the mediation of the (post)modern relationship Americans engage with social media. The first legal brief (provided in our last post, “Part 1”), filed by plaintiffs against President Trump’s ban of WeChat, is quite passionate, written with conviction and florid prose. The second brief, (provided above, in “Part 2”) filed by WeChat users in state court to demand an end to the foreign corporation’s digital surveillance regime, adds the voices of hackers and scientists who contributed to the legal drafting. Accordingly, the pleas for relief in the two cases paint alternate realities about the identity of WeChat users, diverging even in their manner of crafting argumentation.
With both narratives in hand, whose side are you on?: the WeChat users in federal court who want the Chinese company’s app liberated from allegedly intrusive U.S. government regulation, or the WeChat users in California state court who demand more regulation by California to dismantle an alleged tool of foreign surveillance?
Blocking “Mechanisms of Social Control”?
The state court petitioners evoke eloquent imagery of psychological manipulation and foreign security threats. When reading the two briefs side-by-side, they almost appear to identify two completely different corporate environments. Who exactly is Tencent and what does membership on WeChat “mean”?
The community speaking through the state court affidavits include not only the students, religious groups, business professionals, and civic groups represented in the federal court filing. To bolster their claims, the state court plaintiffs additionally filed scientific research results “from ‘The Citizen Lab,’ an organization housed at the University of Toronto, . . . confirming that WeChat users outside the PRC (People’s Republic of China) are subjected to censorship and surveillance.” Interestingly, the plaintiffs also filed investigative results provided by a private third-party hacker.
EXCERPT: Victor Gevers, a hacker focused on discovering internet-related security vulnerabilities, has also uncovered evidence that California WeChat user data and communications are made available to the Party-state. . . .Gevers later revealed that on a single day — March 18, 2019 — the system he had uncovered had automatically captured over 3.7 billion individual WeChat messages, or over 1 billion dialogues/conversations, for “reviewing,” triggered by certain “keywords.”
The investigative background is itself a compelling narrative of the state court WeChat fight and reads like a science fiction novel. We thus recommend this second legal brief (link above) to anyone with an interest in scientific investigation about digital and/or government surveillance. What exactly does this tell us about the identity of the WeChat users and why their experiences and legal demands from the U.S. courts diverge so vastly? (Let us know your opinion about the persuasiveness of the scientific experiments conducted by The Citizen Lab and the hacker.)
The poignant stories shared in the state court briefs against Tencent are as personally descriptive of media’s impact on civic society as the complaint filed by the opposite group of WeChat users who filed in federal court against the White House.
SEE: California Plaintiffs Sue Chinese Tech Giant Tencent, Alleging WeChat App is Censoring and Surveilling Them, Washington Post (Jan. 20, 2021).
EXCERPTS: Tencent’s behavior “chills constitutionally protected speech,” the plaintiffs, including six anonymous California residents and the nonprofit group Citizen Power Initiatives for China (CPIFC), wrote in the lawsuit. “Indeed, many WeChat users have told CPIFC that they feel real fear that the Party-state or its agents will retaliate against them or their family, and that, as a result, they self-censor — despite the fact that they live in California.” . . .
The lead counsel for the plaintiffs, Times Wang of North River Law in D.C., said most of his clients had requested anonymity in the lawsuit because they fear retaliation by Chinese authorities or others. The complaint refers to them as “Doe Plaintiffs 1–6” and describes them as a mix of U.S. and Chinese citizens with professions including a translator, an entrepreneur and an installer of home security systems.
The seventh plaintiff, CPIFC, helped organize the lawsuit after spending nearly a year interviewing WeChat users in the United States. . .
The brief itself further elucidates:
WeChat’s censorship and surveillance practices in California have significant harmful consequences on California WeChat users. CPIFC’s ongoing investigation has uncovered hundreds of examples of such harms, all flowing from WeChat users in the United States, including in California, making comments perceived as critical of the Party-state. They include emotional distress resulting from the loss of cherished memories and photos built up over extended periods of WeChat use, as well as from the inability to communicate with family members in the PRC during a pandemic, after accounts were blocked, suspended, or deleted.
[H]armful consequences . . .include business losses in amounts as high as millions of dollars resulting from an inability to continue business discussions and negotiations conducted on WeChat, after accounts were blocked, suspended, or deleted.
[Harm] also include[s] harrowing consequences for California WeChat users’ family members in the PRC, where California WeChat users’ critical comments — made from California — have led to visits from PRC security agents. Indeed, these consequences, and the fear of similar other consequences, have deterred at least one California WeChat user who was previously interested in being a plaintiff in this action from moving forward. . . .
Parallel Trauma: Citizens Deplatformed by U.S. Tech
The plaintiffs’ brief proceeds to describe psychological scarring resulting from having their WeChat accounts blocked by Tencent, their privacy breached, and their contacts and businesses in China threatened, setting the foundation for their demand for monetary damages. The two resounding and repeated sentiments the American plaintiffs describe are fear and isolation.
EXCERPT: Doe Plaintiff 1 has many classmates working at lower levels of the PRC government. They used to be in Doe Plaintiff 1’s alumni group. However, as a result of Tencent’s actions against the group, these classmates have not rejoined Doe Plaintiff 1’s various reconstituted alumni groups. On a recent trip to the PRC, Doe Plaintiff 1 met with some of these classmates, and encouraged them to rejoin the group. These classmates declined, saying that, because Doe Plaintiff 1 has been targeted by the Party-state and Tencent for monitoring, they are fearful of associating with him. The ostracization of Doe Plaintiff 1 in this manner has also caused Doe Plaintiff 1 psychological and emotional distress. . . .
Doe Plaintiff 4 has also been, and continues to be, a member of multiple private WeChat groups organized around political and religious topics. These groups are routinely suspended or otherwise rendered non-functional by WeChat because of their content, which Tencent monitors, censors, and surveils.
To date there has been an environment of silence surrounding the deplatforming of over a million subscribers to U.S. Big Tech companies based on belief or political association. Accordingly, we do not yet have a comprehensive recounting of what impact the actions have had on the fiber of their lives and their mental well-being, as they are “technologically” isolated during a global pandemic. Thus, they may share commonalities with both WeChat plaintiff groups.
Nevertheless, we ask again, if you had to choose: Whose side are you on: the WeChat users in federal court who want the Chinese company’s app liberated from government regulation, or the WeChat users who want the surveillance state dismantled?
