By: Emily Ariz
In early August, the Trump Administration issued an executive order that would ban two Chinese-owned apps, TikTok and WeChat, from the U.S. market.[1] The executive order characterizes TikTok’s popularity in the U.S. as a “national emergency” arguing that “the spread . . . of mobile applications developed and owned by companies in [China] continues to threaten the national security, foreign policy, and economy of the United States.”[2]
TikTok is a video-sharing, smartphone application owned by ByteDance Ltd., a Chinese company.[3] The app has been downloaded 175 million times in the U.S. alone, and over one billion times internationally.[4] The administrations cites the International Emergency Economic Powers Act, the National Emergencies Act, and section 301 of title 3, United States Code as its authority for issuing the order.[5] The administration makes several allegations in the order stating that TikTok “automatically captures . . . information from its users . . . such as location data and browsing and search histories,” which “threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.”[6] The administration further alleges that the Chinese Communist Party actively censors TikTok’s content and uses it for misinformation campaigns.[7] The order effectively bans TikTok by prohibiting any transaction by “any person . . . subject to the jurisdiction of the United States, with ByteDance Ltd. . . . or its subsidiaries.”[8]
TikTok is now challenging the order as unconstitutional through a federal lawsuit filed on August 24, 2020. The complaint states that the administration’s actions were taken without giving the company a chance to be heard, thus violating its due process.[9] The company also asserts that it takes extraordinary measures to protect the data of its users by storing data outside of China and ensuring that its data remains separate from that of ByteDance.[10]
A separate suit filed by TikTok employee Patrick Ryan alleges that the order’s use of the word “transaction” is too vague, potentially threatening the wages and salaries of American employees of TikTok.[11] The complaint states that this ambiguity is an unconstitutional violation of due process.[12]
While the constitutionality of the order is certainly questionable, the more concerning matter is the administration’s motive for issuing the order. As previously mentioned, the order characterizes the Chinese ownership of TikTok as a grave threat to national security but does not provide concrete proof of this. The speculative nature of this national security threat may not be enough for the order to stand in court. The administration provides no evidence in its order that TikTok and ByteDance are feeding the data of private American citizens to the Chinese government. This lack of proof shows that the order is most likely part of Trump’s anti-China political campaign as alleged in TikTok’s complaint.[13]
Even more indicative of an ulterior motive, President Trump recently stated that he would “approve a purchase of the U.S. operations of . . . TikTok, but only if the government receives ‘a lot of money’ in exchange.”[14] Trump’s statement comes as Microsoft revealed that it hopes to acquire TikTok’s business in the U.S., essentially making the administration’s ban moot.[15] Stating that the government should get a cut of the deal for initiating the sale of TikTok to an American company shows an unprecedented level of corruption.
For now, TikTok’s future in the U.S. is uncertain. Although the executive order puts a deadline of September 15, 2020, “after which TikTok would be banned in the U.S.,” these lawsuits may stall the ban indefinitely.[16]
[1] Geoffrey Gertz, Why is the Trump administration banning TikTok and WeChat?, Brookings (Aug. 7, 2020), https://www.brookings.edu/blog/up-front/2020/08/07/why-is-the-trump-administration-banning-tiktok-and-wechat/.
[2] Exec. Order on Addressing the Threat Posed by TikTok (Aug. 6, 2020), https://www.whitehouse.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Bobby Allyn, TikTok Sues Trump To Block U.S. Ban, Nat’l Pub. Radio (Aug. 24, 2020), https://www.npr.org/2020/08/24/901776584/tiktok-sues-trump-to-block-u-s-ban.
[10] Id.
[11] Brian Fung, TikTok employee sues Trump administration over ‘unconstitutional’ executive order, CNN Bus. (Aug. 24, 2020), https://www.cnn.com/2020/08/24/tech/tiktok-employee-lawsuit-trump/index.html.
[12] Id.
[13] Id.
[14] Bob Davis, et al., Trump Says U.S. Should Get Slice of TikTok Sale Price, The Wall Street J. (Aug. 3, 2020), https://www.wsj.com/articles/trump-says-u-s-should-get-slice-of-tiktok-sale-price-11596479818.
[15] Id.
[16] Id.
