This is the final article of a three-article series about the challenges the American federal government faces in its efforts to ban TikTok. The first article set up the legal and political posture of attempts to ban TikTok and addressed why they have failed. The second article discussed the ANTI-SOCIAL CCP Act and presented the legal and political challenges that the act faces, as well as the enforcement challenges that will be created by technology, such as the ability to jailbreak phones to get around preset App Store conditions. This third article purports to serve as a road map for legislative action that could survive legal challenges and the efforts to prevent end-runs around the TikTok ban.
The ANTI-SOCIAL CCP Act attempted to address the two difficulties in using the International Economic Emergency Powers Act (IEEPA), specifically that an act focusing on the importation of harms was being used for the exportation of information, and that information by itself is covered by an exception to the IEEPA that removes it as a subject matter from IEEPA powers. Senator Rubio’s act addressed these issues by creating an exception to the exceptions in 1702(b) within just this act and created an authority to ban the imports of non-physical goods, which would enable the banning of the importation of non-tangible property such as a software application.
Senator Rubio deserves credit for attempting to patch the two holes within his act, but they just create legal problems that will endanger the constitutionality of the act and likely lead to another injunction being given to ByteDance. Rather, Congress should address the issue square-on and create language that would appropriately amend the IEEPA so that it can be appropriately used to address external technological threats now and in the future.
First, the legal and political challenges exist because of the way section 1702 of IEEPA is written, so addressing that section directly, and in a literal sense universally, will be more effective than selectively re-writing it threat-by-threat. In 1702(a), Congress provided three categories of Presidential action: regulation of international financial transactions involving payments, credits, and currency; property transactions of foreign companies and nationals involving property in the United States, and powers to be exercised during times of hostilities and attacks. The most direct way to address the economic and intelligence threat from what is effectively corporate-disguised espionage is to give the President the power to review foreign technologies, specifically involving communications networks and social media companies that provide tangible and intangible technologies (from computer chips to software code) for importation into the United States that have an adversarial interest against the United States. This addition to the IEEPA squarely provides the power to the President to address the technology threat to national security in the same way the first provision enabled the President to address the financial threat to national security. This specific power to review social media companies, and other technologies, can be created as 1702(a)(4) of the IEEPA.
Second, section 1702(b) provides exceptions to 1702(a) where it, amongst other specific exceptions, states that information, informational materials, and personal communications cannot be included as subject matter for use in the IEEPA. These exceptions have blocked the usage of the IEEPA as an effective policy tool to address the threat of intangible computer code and social media networks. The amendment to 1702 should do one of two things: either state in the new 1702(a)(4) that 1702(b)(1) and (3) do not apply to the newly created technology section, or state that computer code used to transmit information about Americans shall be subject to the IEEPA if it transmits location data, user profiles, or the content of communications to a foreign government.
The more direct approach to amend the IEEPA, which is clearly the statute of choice for Congress and the executive branch, will provide a more enduring and effective approach to addressing threats that could not have been contemplated at the time of IEEPA’s creation. Moreover, because IEEPA enables nations to be added to the list, and removed from the list, given the status of the underlying problematic act, directly amending IEEPA to create blanket authority to social media and other technology threats emanating from any nation is preferable to a single act directly aimed at one country, one company, one software application. Congress cannot play a continuous game of whack-a-mole with these intelligence-gathering activities cloaked as benignly popular apps. Amending the statute directly to cover the explicitly stated threat will put any country, any company, and the major cell phone operating systems on notice as to what powers the President has to address malicious software applications targeting American citizens.
Assuming these amendments to IEEPA would be drafted, would pass, would survive judicial scrutiny, and would actually ban TikTok from the Apple Store and Google Play, there are real-world challenges to enforcement. Phones can be jailbroken. Jailbreaking a phone enables the user to get around the manufacturer’s preset restrictions and download apps that are not provided by the operating service’s respective stores. The application stores are not just convenient, they serve a gatekeeper function that enables Apple and Google to keep apps that run malware and other types of malicious code off of their user’s phones, thereby protecting the phone, their reputation, and the user. By jailbreaking a phone, the user can download apps to a phone that are not available through the stores, and at their own risk. These bootlegged apps may contain code that the user cannot detect and that may harm them. Banning TikTok from the stores will protect the country from the harms of TikTok, but it will cause some users who simply cannot live without the app to take on additional risk. It is doubtful that there will be a boom in “TikTok tourism”, where young Americans who simply must show off their dance moves to anonymous people routinely travel to Canada to download and/or update the app on their phones, but there is a concern for the problems that can be caused from jailbroken phones due to the dependency on TikTok. A technological problem will need a technological solution and preventing these bootlegged TikTok applications from being downloaded to jailbroken phones is imperative to maintain an effective ban on TikTok.
Four years into the recognition of the national security threat posed by TikTok, the United States has been unable to undertake any effective actions toward banning TikTok. The attempts to use IEEPA, to create special acts to “kinda but not really use IEEPA”, and the belated efforts to ban federal and state government employees from using the app have been overwhelmed by the volume of Americans using the app each day. If the United States is truly serious about banning the app, and they do seem to be, Congress will provide the President with the clearly defined tools to address the issue head-on, and that is to use an updated version of IEEPA to account for technological threats. But even this may be insufficient without the best efforts of technology companies to block access to the app, whether through the declarations invoking the new IEEPA or efforts at end-runs after the app has been blacklisted from the stores. As in every situation involving the government efforts to block a public harm, the efficacy will only be as strong as the people’s willingness to comply. If the youth of America must be addicted to one short video-sharing app, hopefully, the TikTok ban will encourage them to dance on an app that does not share all of their personal information with the ruling party of an adversarial foreign power.
Read Part 1: “Why can’t we just ban it?”: How the American government has bungled the TikTok ban
Read Part 2: “Why can’t we just ban it?”: Legal, Political, and Technological Difficulties with Banning TikTok
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