Amicus Curiae Brief — Americans for Prosperity Foundation, Petitioner v. Rob Bonta, Attorney General of California
Supreme Court briefMar 1, 2021
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Nos. 19-251, 19-255
In the Supreme Court of the United States
__________
AMERICANS FOR PROSPERITY FOUNDATION, PETITIONER
v.
XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS THE
ATTORNEY GENERAL OF CALIFORNIA, RESPONDENT
__________
THOMAS MORE LAW CENTER, PETITIONER
v.
XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS THE
ATTORNEY GENERAL OF CALIFORNIA, RESPONDENT
__________
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
__________
BRIEF FOR CHINA AID ASSOCIATION
AS AMICUS CURIAE IN SUPPORT
OF PETITIONERS
__________
SEAN P. GATES
Charis Lex P.C.
301 N. Lake Ave.
Ste. 1100
Pasadena, CA 91101
(626) 508-1715
sgates@charislex.com
ANDREW C. NICHOLS
Counsel of Record
Charis Lex P.C.
4250 N. Fairfax Dr.,
Ste. 600
Arlington, VA 22203
(571) 549-2645
anichols@charislex.com
Counsel for Amicus Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... iii
INTRODUCTION & STATEMENT OF INTEREST.. 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT ................................................................ 5
I. California’s mandate poses grave risks to donors
to human-rights groups like ChinaAid, which is
facing extreme repression by China. ..................... 5
A. On an unprecedented scale, China is surveilling, harassing, and intimidating critics globally, including in the United States. ................ 5
B. China has acted to harass and intimidate
ChinaAid and its supporters, even using
proxies to make public death threats against
ChinaAid’s president....................................... 10
C. One of China’s primary means of attacking
critics outside of China is highly sophisticated
hacking, including into federal agencies. ....... 14
D. China’s hackers are among the world’s most
elite; they have hacked the “Holy Grail of
cyber-espionage”: the iPhone. ......................... 17
II. China’s sophisticated hackers will inevitably exploit California’s porous registry to find donors to
organizations that China views as critics. .......... 18
A. The decision below inadvertently highlights
the ruinous defects in California’s registry.... 19
1. California still uploads the entire contents
of its registry—60,000 donor lists—to the
Internet every year. ................................... 19
ii
2. The “tedious” task of uploading 60,000 donor lists is still left to “temporary” and
“student” workers, whose errors the State
does not count as public disclosures. ........ 20
3. Donor lists are still “inadvertently misclassified as public” and left public on the
Internet for up to six days. ........................ 21
4. The State still relies on charities themselves to catch its errors and demand they
be fixed “immediately.” .............................. 21
5. It is no answer to say, as does the decision
below, that “nothing is perfectly secure on
the [I]nternet,” especially as the State
stores hard copies of donor lists with
unmonitored outside vendors. ................... 22
B. California will not be able to stop China if it
could not stop petitioner’s expert after he notified the State of a major flaw in the registry. 23
III.Given the speed and ferocity of China’s extraterritorial repression, an as-applied challenge would be
useless to groups like ChinaAid........................... 24
CONCLUSION .......................................................... 25
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Citizens United v. FEC,
558 U.S. 310 (2010) ......................................... 24-25
Fu v. Wengui,
No. 7:20-cv-00257 (W.D. Tex. Nov. 12, 2020) . 11-13
La. ex rel. Gremillion v. NAACP,
366 U.S. 293 (1961) .............................................. 24
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) .............................................. 25
Whalen v. Roe,
429 U.S. 589 (1977) .............................................. 19
Other Authorities
A Human Rights Approach to U.S.-China Policy:
A Joint NGO Letter to the Biden
Administration (Feb. 17, 2021),
https://bit.ly/2ZR3iem .......................................... 10
Center for Strategic & International Studies,
Significant Cyber Incidents 2020-21,
https://bit.ly/3uwtiKb ........................................... 16
Congressional-Executive Commission on China,
Annual Report (2020),
https://bit.ly/2Pe5Np5 ................................. 2, 6, 8-9
David E. Sanger, Nicole Perlroth, & Michael D.
Shear, Attack Gave Chinese Hackers
Privileged Access to U.S. Systems, N.Y. Times,
(June 20, 2015), https://nyti.ms/3aQEdqe ...... 16-17
iv
Director of National Intelligence, Worldwide
Threat Assessment of the U.S. Intelligence
Community (2019), https://bit.ly/3kqIc00 ............ 14
Eric Geller & Betsy Woodruff Swan, DOJ Says
Chinese Hackers Targeted Coronavirus
Research, Politico (July 21, 2020),
https://politi.co/2ZNHwrQ ........................ 15, 16, 17
Francis Rocca & Eva Xiao, China Hacked Vatican
Ahead of Negotiations, U.S. Cybersecurity
Firm Says, The Wall Street Journal (July 29,
2020), https://on.wsj.com/3bRPfKZ ...................... 15
Freedom House, Democracy and Human Rights
Organizations Respond to Threat of
Government Sanctions (Aug. 12, 2020),
https://bit.ly/3dMkERH ....................................... 7-8
Freedom House, Out of Sight, Not Out of Reach:
The Global Scale and Scope of Transnational
Repression (Feb. 2021),
https://bit.ly/3aSbj9e ............................ 5-6, 7, 13-14
Huang Lanlan & Shan Jie, U.S. Forces Under
Guise of Religion Serve as Anti-China
Vanguard of Washington, Global Times,
(Oct. 27, 2020), https://bit.ly/37MT1Ep .......... 10-11
John D. McKinnon & Laura Saunders, Breach at
IRS Exposes Tax Returns, The Wall Street
Journal (May 26, 2015),
https://on.wsj.com/2NYXooM ............................... 17
Katie Benner & Nicole Perlroth, China-Backed
Hackers Broke Into 100 Firms and Agencies,
U.S. Says, N.Y. Times (Sept. 16, 2020),
https://nyti.ms/2O2rKGO ................................ 14-15
v
Kaveh Waddell, 5.6 Million Fingerprints Stolen
in OPM Breach, The Atlantic (Sept. 23, 2015),
https://bit.ly/3sIFc1V ........................................... .16
Michael Schmidt, U.S. Charges 8 in Plot to
Harass Chinese Dissidents, N.Y. Times,
(Oct. 28, 2020), https://nyti.ms/3qUA8XK .......... 6-7
Mindy Belz, Weapons of Mass Distraction,
WORLD Magazine (Oct. 22, 2020),
https://bit.ly/3uy7myb .......................................... 13
Nick Aspinwall, Guo Wengui is Sending Mobs
After Chinese Dissidents, Foreign Policy,
(Oct. 28, 2020), https://bit.ly/3qXyzrQ ........... 11, 14
Nicole Perlroth, Kate Conger, & Paul Mozur,
China Sharpens Hacking to Hound Its
Minorities, Far and Wide, N.Y. Times (Oct. 22,
2019), https://nyti.ms/3qQg5JT ...................... 17-18
U.S. Dep’t of Justice, Seven International Cyber
Defendants, Including “Apt41” Actors,
Charged In Connection With Computer
Intrusion Campaigns Against More Than 100
Victims Globally (Sept. 16, 2020),
https://bit.ly/3qZwv2D .......................................... 15
U.S. Dep’t of Justice, Two Chinese Hackers
Working with the Ministry of State Security
Charged with Global Computer Intrusion
Campaign Targeting Intellectual Property and
Confidential Business Information, Including
COVID-19 Research (July 21, 2020),
https://bit.ly/3aUuuiP ........................................... 15
INTRODUCTION &
STATEMENT OF INTEREST 1
China Aid Association, or, more simply, ChinaAid,
is an international nonprofit Christian human rights
organization committed to promoting religious freedom and the rule of law in China, as well as supporting
Chinese Christians and their families who have experienced persecution at the hands of their government.
ChinaAid was founded nearly 20 years ago by Bob
Fu, a student leader in the 1989 Tiananmen Square
demonstrations. In 1997, Fu and his family fled to the
United States where Fu earned his doctorate. In addition to leading ChinaAid, Fu serves as Editor-inChief of Chinese Law & Religion Monitor, a journal on
religious freedom and the rule of law in China. He has
testified before the House Foreign Affairs Committee,
the Senate Judiciary Committee, the CongressionalExecutive Commission on China, several European
parliaments, the parliament of the European Union,
and the U.N. Commission on Human Rights. He is
also a member of the Council on Foreign Relations.
ChinaAid submits this brief to lend crucial international context to this Court’s decision, which will directly affect donors to human-rights groups. Scholars
of all stripes agree that we are witnessing an unprecedented era of what they call “transnational repression”
by China. Surveillance, harassment, intimidation, abduction of family members, death threats—China uses
the entire cross-border toolkit with a skill and ferocity
1 No counsel for any party authored this brief in whole or in
part, and no person other than amicus curiae and its counsel contributed financially to preparing or submitting this
brief. All parties have consented to the filing of this brief.
2
never seen before. Many of China’s targets are dissidents. And they include Bob Fu, who recently had a
bounty placed on his head on YouTube and Twitter by
an apparent proxy of China living in the United States.
Fu’s family fled their home and dispersed, and he had
to shutter the offices of ChinaAid.
As the statutorily established Congressional-Executive Commission on China put it, China is exhibiting
‘‘a toxic blend of Mao’s ruthlessness and sophisticated
21st-century surveillance techniques—in effect, an updated religious Cultural Revolution.’’ No government,
organization, or individual is secure. Last summer,
China hacked into the Vatican. Before that, it cracked
the iPhone—and the Android system. And before that,
it stole myriad files from the Office of Personnel Management, including 5.6 million sets of fingerprints.
Which brings us to California’s blanket mandate
that charities disclose their top donors’ names and addresses to California, which uploads that information
onto the Internet. What could possibly go wrong? The
answer, alas, is all too clear on the record here.
China’s hackers inevitably will exploit the porous registry, and China will go after donors to organizations
like ChinaAid as it has gone after Bob Fu.
The Ninth Circuit acknowledged that the State exposed some 1,800 donor lists to the public by accident.
But the court drew comfort from California’s plan to
continue to trust students and temporary workers to
upload donor lists only onto the private Internet,
thanks to new “weekly” checks. Of course, that will
still leave the lists exposed for up to six days—plenty
of time for China’s hackers. But not plenty of time for
donors to bring an as-applied challenge. The mandate
should be struck down in its entirety.
3
SUMMARY OF ARGUMENT
I. California’s blanket donor-disclosure mandate
poses serious, needless risks to donors to humanrights groups that criticize nation-states like China.
China is the world’s leading transnational oppressor—
surveilling, harassing, and intimidating critics around
the world, including in the United States. China has
sent agents into the United States to coerce Chinese
exiles to come back to China to stand trial, and it has
passed laws asserting global extraterritorial jurisdiction over its critics. China especially targets religious
minorities, most recently focusing on Muslims, whom
China often coerces into silence by threatening to retaliate against their relatives still in China.
China has acted to harass, threaten, and intimidate ChinaAid, which, along with its supporters,
China has labeled “anti-China forces.” Recently,
China unleashed a proxy in the United States who repeatedly urged his hundreds of thousands of social-media followers to “kill” ChinaAid’s founder, Bob Fu,
along with another democracy activist in California.
One of China’s key means of attacking critics
abroad is by hacking into their accounts and organizational systems. Hundreds of entities have been penetrated—from technology firms, to universities, to nonprofits, to religious institutions. Another favorite target is government agencies, including, most notoriously, the U.S. Office of Personnel Management. In
past years, China employed primitive techniques, but
now shows skills exceeding those of the Federal Bureau of Investigation (“FBI”). Recently, for example,
China hacked into the iPhone, when the FBI could not.
II. It is only a matter of time, therefore, before
China’s sophisticated hackers invade California’s low-
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tech registry to find the names and addresses of donors
to organizations that China views as critics. That is
the kind of information China uses to silence people
and hobble entities like ChinaAid. Donors will likely
stop giving if they believe they or their family in the
United States may be threatened with death, as was
Bob Fu. This is not to mention donors who have family
in China, where China exerts more vicious pressure.
Though the Ninth Circuit did not intend to do so,
its decision highlights the vulnerability of California’s
registry to China’s hackers. Even under its new security protocols, California uploads the entire contents of
its donor registry—some 60,000 donor lists—to the Internet every year. That “tedious” task is left to the
same “temporary” and “student” workers who “inadvertently misclassified as public” some 1,800 donor
names and addresses. The State now checks for errors
weekly, but that still leaves donor lists exposed for up
to six days, when China’s hackers will have free rein.
For an error to be fixed immediately, a donor must ask.
If there were any doubt that California’s registry
cannot withstand China’s hackers, it was eliminated
before trial. During discovery, California was told of a
flaw that allowed one of petitioners’ experts to see all
350,000 confidential documents in the registry. The
State claimed to fix the problem, and the problem of
the 1,800 lists mislabeled as public. But the day before
trial, the expert found dozens of lists still online. The
State will be no match for China if it is no match for
petitioners’ expert, who effectively spotted the State
the time and exact nature of his attack.
III. All of this counsels for overturning California’s
mandate wholesale. Once donor information is stolen,
it will be too late to bring an as-applied challenge.
5
ARGUMENT
I. California’s mandate poses grave risks to donors to human-rights groups like ChinaAid,
which is facing extreme repression by China.
The risks posed by California’s blunderbuss mandate are felt acutely by nonprofits, like ChinaAid, that
face down powerful nation-states for human-rights violations. Increasingly, such nation-states surveil and
attack their opponents across borders—in what has
become known as “transnational repression.” Freedom House, Out of Sight, Not Out of Reach: The Global
Scale and Scope of Transnational Repression, at 1
(Feb. 2021) (Transnational Repression Report). All of
these nation-states have both the will and sophistication to exploit California’s primitive, problem-riddled
donor registry. But none compares to China, which is
in the midst of a full-throttle attack on ChinaAid in the
United States.
A. On an unprecedented scale, China is surveilling, harassing, and intimidating critics globally, including in the United States.
1. China “conducts the most sophisticated, global,
and comprehensive campaign of transnational repression in the world.” Id. at 15. “[T]he sheer breadth and
global scale of the campaign is unparalleled.” Ibid.
China conducts a “[b]road[] system of surveillance,
harassment, and intimidation that leaves many overseas Chinese and exile minorities feeling that the [Chinese Communist Party] is watching them and constraining their ability to exercise basic rights even
when living in a foreign democracy. All told, these tactics affect millions of Chinese and minority populations from China in at least 36 host countries.” Ibid.
Nor is China satisfied with repressing ethnic Chinese
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and exiled minorities. “China’s attempts to intimidate
and control foreigners in response to their peaceful advocacy activities is an ominous trend.” Id. at 16 (emphasis added).
China’s “long arm of authoritarianism” extends
into the United States. Congressional-Executive Commission on China, Annual Report 1 (2020) (Congressional-Executive Commission Report). China’s efforts
here “include threatening and intimidating critics,
blocking social media content, pressuring publishers
to censor their content in China, influencing academic
institutions to the detriment of academic freedom, interfering in multilateral institutions, and pressuring
U.S. and international companies to suppress practices that do not conform to the political narratives and
demands of Chinese officials.” Ibid. And the threat is
growing. “[T]he Chinese government and Communist
Party have taken unprecedented steps in the last year
to extend their repressive policies through censorship,
intimidation, and the detention of individuals and
groups for exercising their fundamental human
rights[.]” Ibid.
In one of China’s most high-profile moves—which
it proudly dubs “Operation Fox Hunt”—China sent
agents to the United States “to conduct an aggressive
harassment campaign on behalf of China to pressure
political dissidents and fugitives in the United States
to return home to face trial[.]” Michael Schmidt, U.S.
Charges 8 in Plot to Harass Chinese Dissidents, N.Y.
Times (Oct. 28, 2020). “In 2015, top Obama officials
privately warned Chinese officials to stop using their
agents in the United States to harass expatriates.”
Ibid. But evidently the warning went unheeded.
Eight Chinese agents have now been charged with
“carrying out an elaborate pressure campaign that
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included hiring American private investigators to locate the expatriates who had taken refuge in the
United States and then stalking, surveilling and
threatening them and their family members.” Ibid.
“In one instance, the operatives arranged for threatening messages to be sent on social media to the daughter of a former Chinese official and to her friends[.]”
Ibid. “They also brought the official’s father to the
United States from China to use the unannounced
presence to threaten his son to return home.” Ibid. (internal quotation marks omitted).
To heighten the threat to its critics, China is now
increasingly asserting extraterritorial jurisdiction
over anyone, anywhere. In its so-called “National Security Law,” which ostensibly tightens China’s control
over Hong Kong, China also “criminaliz[ed] any speech
critical of the Chinese or Hong Kong government made
anywhere in the world, including speech by foreign nationals.” Transnational Repression Report 19-20 (emphasis added). “Among those who received the first
round of arrest warrants under the new law was Samuel Chu, an American citizen, who was charged for his
work to gain US government support for the cause of
freedom in Hong Kong. Chu and others like him now
must not only avoid traveling to Hong Kong, but also
to any country with an extradition treaty with Hong
Kong or China.” Ibid. Meanwhile, China also “announced plans to sanction 11 U.S. politicians and
heads of organizations that further democracy and human rights around the world, including National Endowment for Democracy president Carl Gershman,
National Democratic Institute president Derek Mitchell, International Republican Institute president Daniel Twining, and Freedom House president Michael
Abramowitz.”
Freedom House, Democracy and
8
Human Rights Organizations Respond to Threat of
Government Sanctions (Aug. 12, 2020).
2. Although no one is safe from China’s attacks,
some of its most brutal assaults have come against religious minorities. “Chinese believers and outside experts compared the current situation to the Cultural
Revolution (1966 to 1976), widely seen as the most repressive era for religions in [People’s Republic of
China] history.” Congressional-Executive Commission Report 11. “[O]ne expert describe[es] the present
situation as ‘a toxic blend of Mao’s ruthlessness and
sophisticated 21st-century surveillance techniques—
in effect, an updated religious Cultural Revolution.’’’
Ibid. As a Chinese Catholic priest explained, ‘‘[i]n
practice, your religion no longer matters, [whether]
you are Buddhist, or Taoist, or Muslim or Christian:
the only religion allowed is faith in the Chinese Communist Party.’’ Id. at 112.
In the United States, China’s campaign against religious dissidents has recently focused on Muslims.
“Identified agents of the Chinese government” have
“intimidated and harassed members of China’s Turkic
Muslim minorities residing in the United States, particularly those from the Uyghur community. In many
cases, this harassment included threats to family
members still in China * * * *. Uyghurs inside the
United States who chose to speak out about worsening
persecution of their community by the Chinese government reported retaliation against family members and
acquaintances still in China.” Congressional-Executive Commission Report 14. “This intimidation and
harassment has taken place alongside the mass persecution of Uyghurs within China, backed by pervasive
electronic and physical surveillance and widespread
reported incidents of arbitrary detention and torture.”
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Id. at 154. Indeed, the repression in the United States
conspicuously accelerated in 2017, “when the Chinese
government began constructing a network of mass internment camps * * * that have held up to 1.8 million
individuals from predominantly Muslim ethnic minority groups, including Uyghurs, Kazakhs, Kyrgyz, Hui,
and others.” Ibid.
This ongoing “harassment and intimidation” in the
United States has “had a chilling effect on Uyghurs in
the United States who wish to speak about repression
in [China] and violates their right to freedom of expression and association.” Ibid. That chill is intensified when, as often happens, China attacks Uyghurs
by threatening their family members.
“The Chinese government often harasses Uyghurs
in the United States by forcing [them] to convey sensitive personal and financial information” to “close family members” in China. Ibid. “In one mid-2018 case,”
for example, “a Uyghur woman living in the United
States was contacted by her mother and asked to provide—in addition to her U.S. phone number—her U.S.
bank account number and the license plate number of
her car.” Ibid. “In another similar 2018 incident, Chinese authorities detained the mother of Uyghur-American Ferkat Jawdat in a [Chinese] mass internment
camp, prompting Jawdat to speak out about her plight.
He would not hear from his mother again until more
than a year later, in a May 2019 phone call, when she
said she had been released from the camp[] and asked
him to cease his advocacy.” Ibid.
3. In a letter to the Biden Administration, 24 human rights organizations—including Human Rights
Watch and ChinaAid—summarized the situation well:
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The scope and scale of human rights violations committed by the Chinese government
inside and outside the country require a fundamental shift; many of the tools previously
employed are no longer relevant or sufficiently robust. We welcome senior officials’
statements that the US government will
hold the Chinese government “accountable
for its abuses of the international system,”
and the suggestion that the US will impose
consequences for serious violations.
A Human Rights Approach to U.S.-China Policy: A
Joint NGO Letter to the Biden Administration (Feb.
17, 2021) (emphasis added).
B. China has acted to harass and intimidate
ChinaAid and its supporters, even using
proxies to make public death threats
against ChinaAid’s president.
China’s transnational repression is anything but
hypothetical to ChinaAid. Thanks to its long record of
calling attention to China’s persecution of Christians,
ChinaAid has been labeled by the Chinese Communist
Party—via one of its newspapers—as “anti-China.”
Huang Lanlan & Shan Jie, U.S. Forces Under Guise of
Religion Serve as Anti-China Vanguard of Washington, Global Times (Oct. 27, 2020). According to the paper, China Aid works with other “anti-China forces”—
which it says include certain former members of the
U.S. House of Representatives, a leading academic at
the University of Texas at Austin, and multiple prohuman rights organizations, including the National
Endowment for Democracy and the Lantos Foundation. Ibid. All of these supposedly nefarious actors,
says the paper, are guilty of forming a “conspiracy of
11
politicizing religious matters in China” and, in so doing, “break[ing] local order and values.” Ibid.
But of the forces it labeled “anti-China,” China has
reserved its strongest ire for the founder of ChinaAid,
Bob Fu, who has been publicly threatened with death
by a proxy of China who lives in the United States. In
September 2020, an exiled businessman from China
named Guo Wengui posted a video online urging viewers to “eliminate” Fu and another prominent critic of
the Chinese Communist Party, Wu Jianmin, who lives
in Southern California: “Let’s eliminate traitors in the
world. * * * Let’s get started, let’s finish with these
traitors first.” Nick Aspinwall, Guo Wengui is Sending
Mobs After Chinese Dissidents, Foreign Policy (Oct. 28,
2020). When protesters began appearing by the dozens outside Fu’s house in Midland, Texas, law enforcement officials advised Fu family members to evacuate
and disperse to separate locations, which they did. No.
7:20-cv-00257, Fu v. Wengui, Doc. 1, at ¶ 16 (W.D. Tex.
Nov. 12, 2020) (complaint).
Fu also filed a federal suit against Wengui documenting his multiple public death threats, which now
include a price on Fu’s head. Id. ¶ 16. Posted on Wengui’s YouTube and Twitter accounts, as well as on
Wengui’s own live broadcasting service and personal
website, the threats have been explicit and repeated:
Labeling Fu a “threat to all human beings,”
in September 2020, Wengui called for his followers to “kill” Fu, as part of a larger, international “Kill Cheaters” campaign.
The next day, when protesters appeared at
Fu’s house and he called the police, Wengui
posted a new video: “We will send at least
100 to 200 comrades to your house tomorrow.
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We will see how much power you have in the
U.S.”
The same day, Wengui posted another video
naming Fu on his “Kill Cheaters” campaign
hit list, which also included the California
pro-democracy activist Wu Jianmin.
Still on that same day, Wengui intensified
his demand: “If you didn’t participate in the
global kill cheaters [sic] campaign, there’s
something wrong with you. You need to take
actions [sic]. None of those cheaters should
be missed. We need to see the result.”
Id. ¶¶ 42, 45.
Responding to these demands, one of Wengui’s followers went to Jianmin’s house in California and
filmed himself shouting at Jianmin from the driveway:
Scumbag Jianmin! And that Bob Fu! Bob Fu
* * * [w]ait for me to kill Jianmin Wu first and
you’ll be the next * * * * You dirtbags milk the
First Amendment in U.S. for your freedom of
speech * * * * I am not afraid of death * * * * I
will go [sic] your houses one after another. Get
your guns ready and have your bullets loaded.
You’d better shoot me or you just wait and see.
Id. ¶ 46. Wengui posted this video online. Ibid.
Wengui then raised the stakes by offering a reward
for “comrades” who would “find Bob Fu and kill him”:
I’m appealing again to all the comrades * * *
Connect and converge to Midland[,] Texas to
find Bob Fu and kill him. This is the time to test
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your loyalty and ability. I will reward you with
stocks according to your action. * * * Whether
you are a true comrade or not, we will figure it
out from your action.
Id. ¶ 47. The next day, Wengui republished his hit list
and declared: “They deserve to die”; “the revolution exposed all these bastards.” Id. ¶ 49. Wengui’s online
attacks continued through October 2020 and were
viewed by hundreds of thousands of people, prompting
protesters to threaten Fu online with death and, in one
case, to appear at Fu’s house to threaten him in person. Id. ¶¶ 50-79.
The threats forced Fu to close ChinaAid’s offices.
Mindy Belz, Weapons of Mass Distraction, WORLD
Magazine (Oct. 22, 2020). They have also traumatized
his family. As he explained to one reporter, “[t]he children are realizing there is a price to pay for religious
advocacy, even on U.S. soil.” Ibid.
What is going on here? In his threatening videos,
Wengui does not announce himself as an agent of
China; to the contrary, he proclaims himself an anticommunist. Fu v. Wengui, Doc. 1, at ¶ 20. But in 2017,
after he came to the United States, Wengui “appeared
in a television interview on Mirror TV, a Chinese language news organization based in New York. In the
interview, [he] pledged ‘to serve under President Xi’
and ‘to contribute to President Xi’s China dream.’”
Ibid. And it is common for China to work through
proxies. In fact, China maintains “a network of proxy
entities” and “activists” who “have been involved in
harassment and even physical attacks against party
critics and religious or ethnic minority members. The
greater distance from official Chinese government
agencies offers the regime plausible deniability on the
14
one hand, while accomplishing the goal of sowing fear
and encouraging self-censorship far from China’s
shores, on the other.” Transnational Repression Report 17. That is exactly what happened to Bob Fu.
If Wengui were not a proxy of China, moreover, one
wonders why he included China critic Wu Jianmin on
his hit list. Like Fu, Jianmin “had no prior connections
to [Wengui] before the billionaire and his followers began their pressure campaigns, but he believes Chinese
authorities are ‘very aggravated’ by his popular antiCCP [i.e., Chinese Communist Party] YouTube channel. ‘Only the CCP and its agents would desire [the]
silencing of my voice,’ he said.” Aspinwall, supra.
C. One of China’s primary means of attacking
critics outside of China is highly sophisticated hacking, including into federal agencies.
Though China is bold enough to threaten dissidents in the United States directly, it is also savvy
enough to rely on skilled hackers to breach U.S. computer systems. The U.S. Director of National Intelligence has ranked the number one worldwide threat to
the United States as cyberattacks from China. Director of National Intelligence, Worldwide Threat Assessment of the U.S. Intelligence Community 5 (2019).
These attacks extend far beyond traditional national
security interests; they range into sensitive U.S. human rights and humanitarian information housed in
nonprofit and government systems alike.
Most recently, “a group of hackers associated with
China’s main intelligence service * * * infiltrated more
than 100 companies and organizations around the
world to steal intelligence, hijack their networks and
extort their victims.” Katie Benner & Nicole Perlroth,
15
China-Backed Hackers Broke Into 100 Firms and
Agencies, U.S. Says, N.Y. Times (Sept. 16, 2020). The
hackers not only “targeted social media and other technology companies,” but “universities, government
agencies and nonprofits.” Ibid. According to the U.S.
Department of Justice, “the scope and sophistication of
the crimes in these unsealed indictments is unprecedented.” U.S. Dep’t of Justice, Seven International
Cyber Defendants, Including “Apt41” Actors, Charged
In Connection With Computer Intrusion Campaigns
Against More Than 100 Victims Globally (Sept. 16,
2020). Particularly alarming was China’s use of mercenary hackers, who “believed their association with
the PRC provided them free license to hack and steal
across the globe.” Ibid. Other Chinese “state-sponsored hackers broke into the networks of the Vatican
to conduct espionage in the lead-up to negotiations
about control over the appointment of bishops and the
status of churches in China.” Center for Strategic &
International Studies, Significant Cyber Incidents
2020-21; Francis Rocca & Eva Xiao, China Hacked
Vatican Ahead of Negotiations, U.S. Cybersecurity
Firm Says, The Wall Street Journal (July 29, 2020).
Of course, many Chinese hackers also work directly
for the Chinese government—such as those who explored “security vulnerabilities in the networks of biotech firms in Maryland, Massachusetts[,] and California that were studying coronavirus vaccines and treatments,” along with “a California firm producing coronavirus testing kits.” Eric Geller & Betsy Woodruff
Swan, DOJ Says Chinese Hackers Targeted Coronavirus Research, Politico (July 21, 2020). The coronavirus piece of the operation formed only a small part of
the attack. For years, the hackers invaded the systems
of “hundreds of victim companies, governments, non-
16
governmental organizations, and individual dissidents, clergy, and democratic and human rights activists in the United States and abroad.” U.S. Dep’t of
Justice, Two Chinese Hackers Working with the Ministry of State Security Charged with Global Computer
Intrusion Campaign Targeting Intellectual Property
and Confidential Business Information, Including
COVID-19 Research (July 21, 2020). Ominously for
ChinaAid—given that Bob Fu helped to organize the
Tiananmen Square protests—the hackers “provided
their Chinese government contact with the passwords
of human rights activists, including a community organizer in Hong Kong and a former Tiananmen
Square protester.” Geller & Swan, supra.
China’s hackers have also enjoyed great success
penetrating U.S. government agencies. For example,
in a highly publicized incursion lasting over a year,
“Chinese intruders” gained “administrator privileges”
in “the computer networks at the Office of Personnel
Management [OPM], mimicking the credentials of people who run the agency’s systems.” David E. Sanger,
Nicole Perlroth, & Michael D. Shear, Attack Gave Chinese Hackers Privileged Access to U.S. Systems, N.Y.
Times (June 20, 2015). With those credentials in
hand, “[t]he hackers began siphoning out a rush of
data”—including 5.6 million sets of fingerprints—“after constructing what amounted to an electronic pipeline that led back to China[.]” Ibid.; Kaveh Waddell,
5.6 Million Fingerprints Stolen in OPM Breach, The
Atlantic (Sept. 23, 2015).
The successful attack at OPM should have been no
surprise. Just the year before, auditors had “harshly
criticized lax security at the Internal Revenue Service,
the Nuclear Regulatory Commission, the Energy Department, the Securities and Exchange Commission—
17
and the Department of Homeland Security, which has
responsibility for securing the nation’s critical networks.” Sanger, Perlroth, & Shear, supra. “At the Nuclear Regulatory Commission * * * information about
crucial components was left on unsecured network
drives, and the agency lost track of laptops with critical data.” Ibid. “Computers at the I.R.S. allowed employees to use weak passwords like ‘password’”; and
“[o]ne report [on the IRS] detailed 7,329 ‘potential vulnerabilities’ because software patches had not been installed.” Ibid. The same year that OPM was hacked,
the IRS was too. “[I]dentity thieves used one of its
online services to obtain prior-year tax return information for about 100,000 U.S. households.” John D.
McKinnon & Laura Saunders, Breach at IRS Exposes
Tax Returns, The Wall Street Journal (May 26, 2015).
D. China’s hackers are among the world’s
most elite; they have hacked the “Holy
Grail of cyberespionage”: the iPhone.
Like all hackers, China’s hackers “exploit[] publicly
disclosed vulnerabilities in widely used software[.]”
Geller & Swan, supra. Indeed, the two Chinese hackers discussed above, who were indicted for breaking
into hundreds of companies and nongovernmental organizations, “took advantage of newly announced vulnerabilities before companies had had time to patch
them.” Ibid. But China does not need known vulnerabilities. For example, China’s government allegedly
gave one of the hackers a “zero-day exploit,” which is
“a highly valuable piece of code designed to compromise a previously unknown flaw.” Ibid.
So capable has China become at finding flaws, in
fact, that Google has discovered—and Apple has admitted—that China has hacked into the iPhone.
18
Nicole Perlroth, Kate Conger, & Paul Mozur, China
Sharpens Hacking to Hound Its Minorities, Far and
Wide, N.Y. Times (Oct. 22, 2019). At least for a time,
even the FBI could not do this. In 2016, the FBI obtained multiple court orders requiring Apple to help
the FBI break into an iPhone to investigate “a gunman
involved in the killing of 14 people” in California. Ibid.
When Apple refused to comply, the FBI “paid more
than $1 million to an anonymous third party to hack”
into the iPhone. Ibid.
But more recently, “Google researchers said they
had discovered that iPhone vulnerabilities were being
exploited to infect visitors to a set of websites. Although Google did not release the names of the targets,
Apple said they had been found on about a dozen websites focused on [Uyghurs].” Perlroth, Conger, & Mozur, supra.
Once an iPhone is breached, its user can be monitored. That is why “[b]reaking into iPhones has long
been considered the Holy Grail of cyberespionage. ‘If
you can get inside an iPhone, you have yourself a spy
phone,’” according to John Hultquist, director of intelligence analysis at a cybersecurity firm. Ibid. Alas,
Google’s Android phones fared no better; Chinese
hackers compromised those phones, too. Ibid.
II. China’s sophisticated hackers will inevitably
exploit California’s porous registry to find donors to organizations that China views as
critics.
California’s primitive donor-disclosure registry is
no match for the skill and ferocity of China’s hackers.
As the Ninth Circuit conceded, the registry revealed
its entire contents—350,000 documents—to the public,
and affirmatively mislabeled as public some 1,800
19
donor lists. AFPF Pet. 36a; TMLC Pet. 39-40a. The
court drew comfort from the State’s promises that its
security problems were solved. TMLC Pet. 40-41a;
AFPF Pet. 36-37a. But at every turn, the court’s analysis unwittingly highlights the ongoing flaws in the
registry, which China will inevitably exploit.
A. The decision below inadvertently highlights the ruinous defects in California’s
registry.
1. California still uploads the entire contents of its registry—60,000 donor
lists—to the Internet every year.
According to the Ninth Circuit, “much of” California’s error in labeling some 1,800 lists public “can be
traced to the large amount of paper the Registry Unit
processes around the same time each year. The Registry Unit receives over 60,000 registration renewals
annually, and 90 percent are filed in hard copy.” AFPF
Pet. 36a; TMLC Pet. 40a. One might view this as a red
flag suggesting that the State is running needless
risks by uploading voluminous renewals onto the Internet in the first place. After all, almost two decades
before the Internet existed, this Court warned of “the
threat to privacy implicit in the accumulation of vast
amounts of personal information in computerized data
banks or other massive government files.” Whalen v.
Roe, 429 U.S. 589, 605 (1977). Ignoring this well-established risk, the State insists on “uploading” the donor lists. AFPF Pet. 36a; TMLC Pet. 40a.
20
2. The “tedious” task of uploading 60,000
donor lists is still left to “temporary”
and “student” workers, whose errors
the State does not count as public disclosures.
Compounding the risk of disclosure, the State continues to entrust the sensitive task of uploading donor
lists to “temporary workers and student workers.”
AFPF Pet. 36a; TMLC Pet. 40a. Unsurprisingly, given
the “volume and tediousness of the work,” the students
and temporary workers “occasionally mismark[] [the
lists] as public and then upload[] them to the publicfacing site.” Ibid. But here again, rather than declining to upload the lists, or hiring skilled workers, the
State has decided only to “implement[] stronger protocols,” including “procedural quality checks[.]” AFPF
Pet. 36a-37a; TMLC Pet. 40a.
One must question California’s will to enforce its
new protocols however, given that it does not view inadvertent disclosures as breaches. Indeed, according
to the head of the State’s donor registry, “if every confidential [donor list] ever obtained by the registry were
inadvertently uploaded for public access via links and
publicly downloaded, there would [be] no breach of the
confidentiality policy[.]” AFPF JA 423. Similarly, the
former registry head testified that she did not consider
confidential material appearing online to be “public
disclosures” at all if, “as far as we know, nobody had
viewed the documents.” ER 768 (emphasis added). 2
Not surprisingly, then, the State does not penalize
2 “ER” refers to the excerpts of record filed with the Ninth
Circuit in Nos. 16-55727 & 16-55786 at Dkt. 9.
21
inadvertent disclosures; indeed, it does not even penalize intentional disclosures. TMLC JA 285-86.
In short, the State has adopted stronger protocols
to avoid what it maintains are non-breaches triggering
no consequences. That does not inspire confidence.
3. Donor lists are still “inadvertently misclassified as public” and left public on
the Internet for up to six days.
Even the Ninth Circuit conceded that the new protocols will falter and documents still be “misclassified
as public.” AFPF Pet. 37a; TMLC Pet. 41a. But once
again, instead of abandoning its effort to upload 60,000
lists to the Internet, the State has chosen to implement
another “system”—this one automated—that involves
running a “weekly script to identify and remove any
documents that it had inadvertently misclassified.”
AFPF Pet. 37a; TMLC Pet. 40a-41a. Left unstated, of
course, is that removing confidential documents
“weekly” leaves them online for up to six days. That is
plenty of time for even sluggish hackers to find them.
4. The State still relies on charities themselves to catch its errors and demand
they be fixed “immediately.”
California will remove publicized donor lists “immediately” only if someone discovers the problem before hackers do and flags it for the State. AFPF Pet.
37a; TMLC Pet. 41a. In other words, California demands that the final protection for the 60,000 donor
lists that it insists that charities submit, and that it
insists on uploading to the Internet using students and
temporary workers, and that it insists on doublechecking only weekly, is the 60,000 charities themselves. In a footrace between China’s hackers and the
22
staff of American charities, who have been assured
their lists are secure, there is little doubt who will win.
5. It is no answer to say, as does the decision below, that “nothing is perfectly secure on the [I]nternet,” especially as the
State stores hard copies of donor lists
with unmonitored outside vendors.
Not to worry, says the Ninth Circuit: “Nothing is
perfectly secure on the [I]nternet in 2018, and the Attorney General’s data are no exception, but this factor
alone does not establish a significant risk of public disclosure. * * * [A]ny regulation * * * comes with some
risk of abuse.” AFPF Pet. 37a; TMLC Pet. 41a.
This statement is mistaken three times over. One,
it assumes that donor lists must be placed on the Internet at all. Two, it assumes the donor lists are “the
Attorney General’s data.” Three, it assumes that the
“significant risk of exposure” is caused by placing the
donor lists on the Internet “alone.” None of these assumptions is valid. The donor lists do not need to be
placed on the Internet (indeed, they largely do not
need to be collected at all; see AFPF Br. 31-39; TMLC
Br. 35-38, 40-43). The lists are the data of the charities
that disclosed them. And the lists’ risk of public exposure, though dramatically heightened by needlessly
placing them on the Internet, is raised further still by
the State’s decision to use unskilled workers to upload
the lists and check for mistakes only once a week.
The risk of exposure is heightened yet again by California’s decision to store hard copies of donor lists
with an unmonitored outside vendor called “Pacific
Storage.” AFPF JA 372. The State has never confirmed with Pacific Storage that it follows any of the
State’s confidentiality policies; nor does the State
23
know “anything” about Pacific Storage’s “methods and
procedures” to “maintain confidentiality.” Id. at 37677. The State also has “no idea” of “how many people
at Pacific Storage may have access to [donor lists].” Id.
at 377. In fact, the State does not know “anything
about the extent to which members of the public can
go to Pacific Storage and access archives.” Ibid.
Hard copies aside, California’s electronic registry is
an “open door for hackers.” AFPF Pet. 92a; TMLC Pet.
123a. And that is not the result of parties supposedly
complaining about “any regulation at all.” AFPF Pet.
37a; TMLC Pet. 41a. It is the result of deliberate
choices made by the State of California.
B. California will not be able to stop China if
it could not stop petitioner’s expert after
he notified the State of a major flaw in the
registry.
Finally, a natural experiment has already been
run on California’s ability to secure its donor registry
against a known attack, at a known time, against a
known weakness. The registry failed.
Before trial, petitioner’s expert “probed the Registry’s servers for flaws” and found “approximately 1800
confidential [donor lists] that had been misclassified
as public over several years.” AFPF Pet. 35a-36a;
TMLC Pet. 39a-40a. According to the Ninth Circuit,
“the Attorney General promptly removed them from
public access.” AFPF Pet. 36a; TMLC Pet. 40a. But
even after this massive error was exposed, the State
failed to secure the donor lists. As the district court
found, “the day before * * * trial,” the expert found “38
more” confidential donor lists on the public website.
AFPF Pet. 52a.
24
In light of this, one must ask: If California cannot
secure donor lists when it knows exactly how those
lists were compromised, by whom they were compromised, and when that same person will likely try to access them again, what assurance can anyone have that
the State will have any luck protecting lists from
China’s experts who can hack the iPhone?
III. Given the speed and ferocity of China’s extraterritorial repression, an as-applied challenge would be useless to groups like ChinaAid.
As petitioners have shown, California’s mandate
should be struck down facially because it is anything
but narrowly tailored. AFPF Br. 30-45; TMLC 33-38.
After all, “[w]e are in an area where * * * any regulation must be highly selective in order to survive challenge under the First Amendment.” La. ex rel. Gremillion v. NAACP, 366 U.S. 293, 295-97 (1961). And the
mandate is the opposite of “highly selective.” Ibid. But
the mandate should be struck down facially for another reason. It cannot be attacked meaningfully in
as-applied challenges by groups like ChinaAid, who
will not know that their donor lists have been stolen
before it is too late. At that point, the cat will be out
of the bag. The thieving nation-state will have the
names and addresses it needs to launch its campaign
of repression against donors across the United States.
The only solution to this problem is to prevent it.
And the only way to prevent it here, particularly given
California’s implacable determination to post 60,000
donor lists on the Internet every year, is to strike down
the mandate wholesale.
Just as “[t]he First Amendment does not permit
laws that force speakers to retain a campaign finance
25
attorney * * * or seek declaratory rulings before discussing the most salient political issues of our day”
(Citizens United v. FEC, 558 U.S. 310, 324 (2010)), it
does not require human rights organizations to retain
counsel to seek injunctions protecting information that
has already been stolen. That would only “prolong the
substantial, nationwide chilling effect” (id. at 333) created by California’s blanket mandate, but to no use.
And that would make no sense. This Court has been
willing to forgo “case-by-case determinations” if “archetypical” First Amendment rights “would be chilled
in the meantime.” Id. at 329. That is the case here.
Indeed, the Court should be all the more willing to
forgo case-by-case rulings here, where the “chill”
comes from powerful nation-states with track records
of using the Internet to steal with impunity and make
good on their threats. Given the adversaries in question, the Court should not “endorse a view of the First
Amendment that subjects citizens of this Nation to
death threats * * * as the price” for engaging in the
“freedom of association” protected by the First Amendment. Id. at 485 (Thomas, J., dissenting); NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).
***
In the age of the Internet, the speed of extraterritorial repression is the speed of light. As a result,
groups like ChinaAid, and courageous dissidents like
Bob Fu, cannot afford to wait to bring an as-applied
challenge to the inevitable theft of their donor lists by
China. By then it will be too late. The Court should
strike down California’s mandate in its entirety.
CONCLUSION
For the foregoing reasons, the judgment below
should be reversed.
26
Respectfully submitted,
SEAN P. GATES
Charis Lex P.C.
301 N. Lake Ave.
Ste. 1100
Pasadena, CA 91101
(626) 508-1715
sgates@charislex.com
ANDREW C. NICHOLS
Counsel of Record
Charis Lex P.C.
4250 N. Fairfax Dr.
Ste. 600
Arlington, VA 22203
(571) 549-2645
anichols@charislex.com
Counsel for Amicus Curiae
MARCH 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.