By Jianli Yang, Times Wang, Deyu Wang
The executive orders relating to WeChat and its parent company Tencent, as well as TikTok and its parent company ByteDance, issued by U.S. President Donald Trump have sparked controversy and debate. Two of us, Times Wang and Jianli Yang, have previously expressed concern about First Amendment issues and other worries about the WeChat order, and the Electronic Frontier Foundation has done the same with respect to TikTok. Others have opined in favor of the orders, apparently concluding the risk of a First Amendment violation is low.
China’s internet policies offer real security and ideological challenges to the United States. But there are more constitutionally and strategically sound approaches than some of the crude tools the U.S. government may end up using.
From the outset, it is important to recognize that WeChat is part of a larger and deeper threat, namely the self-interested effort by the Chinese Communist Party (CCP) to propagate and control narratives both at home and abroad.
As part of its effort to control the narrative, the one-party state has constructed the most extensive and sophisticated censorship and surveillance system in history, namely the Great Firewall—though, given its one-way nature, a better descriptor might be the Great Reality Distortion Filter. The purpose is not to block information so much as it is to reshape it. When combined with WeChat, which is the primary source of information for countless Chinese-speaking people around the world, the result is a potential ideological weapon.
Of course, WeChat users can think for themselves. Yet siloed information ecosystems—be it MSNBC, Fox News, or WeChat—also have a well-understood, deleterious effect on accurate perceptions of reality. The result is that support for authoritarianism, and for the CCP—including in communities in the United States—is almost certainly higher than it would be on a more level informational playing field.
Companies such as Tencent, WeChat’s owner, are complicit, if only through necessity. Tencent would presumably prefer not to have to engage in censorship and surveillance. But as a PRC company that depends, like all private firms in China, on the sufferance of the CCP, it must do so if it wants to survive. (In the case of some companies, including Tencent, cooperation can yield extreme benefits, such as virtual monopoly status.) Indeed, under Chinese President Xi Jinping, the CCP has required that erstwhile private companies open their doors to political cadres, and there is evidence that Tencent affirmatively shares user information with the government—including information about its users outside China, such as users in the United States—without even requiring a formal request for particular data.
But even given these facts, a complete ban is not the way to go. Preventing people in the United States from using WeChat is likely impossible on a technical level, although it can be made difficult enough, if removed from Android and Apple app stores, to severely reduce usage. But draconian measures stand on dubious legal ground, given that many use WeChat to engage in protected speech. Nor would the fact that speech is heavily censored seem to matter, given that many other information channels in the United States are similarly biased, not least state-run or state-affiliated outlets such as China Daily, CGTN, and RT. If it would violate the First Amendment to criminalize writing for and reading those outlets (which it almost certainly would), it would likely also violate the First Amendment to criminalize WeChat use.
Even on a practical level, a complete WeChat ban—or as close to it as is possible in the U.S. system—is unlikely to result in positive change. Some have argued that a complete ban will induce people to use alternative tools. But given the existence of the Great Firewall, we think that is a miscalculation, because only when the Great Firewall is torn down will reasonable alternatives to WeChat even become possible.
It is true that especially motivated users inside China, such as dissidents, can and do use virtual private networks and apps such as Signal, and that a ban wouldn’t significantly affect their ability to connect with the outside world. But the reality is that most people inside China are not dissidents. And, while alternate communication tools such as email and phone calls exist, they cannot match the convenience of WeChat in terms of maintaining friendships, professional relationships, and family ties. Moreover, there is every reason to expect that, if forced to choose between permitting large-scale, unmonitored communications versus increasing controls on such communications, the Chinese state will choose the latter, including by shoring up the Great Firewall or by tightening other forms of policing.
The only practical effect of a ban in the foreseeable future is thus to make it even harder for people inside China to connect with the outside world, with no commensurate benefit to free speech or democratization.
The desire to play tit for tat with China is understandable, but that doesn’t have to mean an eye for an eye.
The desire to play tit for tat with China is understandable, but that doesn’t have to mean an eye for an eye.A complete WeChat ban would be a propaganda coup for China, letting it tout the legitimacy and wisdom of its own approach all along. Refusing to take the bait is not naive, nor does it make the United States a sucker. To the contrary, it projects strength and confidence of the kind China lacks.
Given the Chinese government’s influence over companies such as Tencent, it is certainly not alarmist to worry that apps like WeChat might pose a security risk. Thus, the United States should prohibit WeChat use by government employees, people holding security clearances, and the like, extending the existing ban of WeChat on government devices. It should also analyze whether removing WeChat from U.S. app stores would be a First Amendment violation. If not, it should consider requiring such removal, though doing so would presumably invite court challenges. It should also analyze whether and to what extent companies such as Tencent use U.S.-based cloud computing systems, and whether such use is a security risk. Tencent and its leadership appear to have a vast array of investments in the United States and presumably travel here from time to time. Thus, visa restrictions aimed on executives who contribute to the censorship and surveillance of WeChat users in the United States, similar to the restrictions placed on certain Huawei executives, would be an excellent point of leverage.
More broadly, the United States should take direct aim at the Great Firewall. On a technical level, the United States should strengthen existing public-private efforts to develop and improve both open-source and proprietary technologies to defeat it.
Many U.S. companies supply software, hardware, and technology needed for the Great Firewall. To be sure, these technologies are used for noncensorship purposes as well. Nevertheless, given the asymmetrical danger posed by the Great Firewall, the United States can and should require that U.S. companies include contract provisions prohibiting use of their technologies in constructing or maintaining the Great Firewall on national security grounds.
Finally, the Great Firewall should be made an even more critical part of trade negotiations than it already is. After all, in the digital economy, the Great Firewall is the functional equivalent of a discriminatory, protectionist, one-way trade barrier that allows Chinese media and technology companies to compete worldwide, while preventing foreign media and technology companies from competing in China. Future trade negotiators should relentlessly hammer on this point.
Companies such as Tencent are understandably caught between a rock and a hard place. But that is no excuse for avoiding the issue. If they are unwilling or unable to push for relaxation of censorship and surveillance practices at home, they cannot expect people in the United States to simply resign themselves to those practices as a condition of using their products.
At a bare minimum, Chinese technology and media companies should be required to publicly admit to their would-be U.S. users that they are subject to the Chinese government’s authority , and that content on their platforms is likely to be censored and surveilled. The time for half-truths, plausible deniability, strategic ambiguity, and soothing words that signify nothing is over. Warning labels are required for dangerous products.
Of course, companies such as Tencent also have the option of publicly, forcefully, and credibly refusing to censor, surveil, or share data emanating from the United States. But that is asking too much of people subject to the Chinese government’s rule. Given that, a last resort for such companies who want to operate in the United States is to divest. If and when they do, it should be made clear that it was not the U.S. government that put them in that position, but the CCP.
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