Over the past two months, the national security threats posed by the TikTok app have been more exposed than the individuals posting the videos to TikTok. Yet despite those risks, Americans continue to post content to the app, seemingly either unaware or unconcerned by the app’s national security threat or the role these American content creators play in developing Chinese intelligence capabilities against the United States. For those TikTok users that earn some of their livelihood, directly or indirectly, through their presence on the app, past and pending federal actions may affect how these users “grow their influence” at the expense of American national security. A woman with a substantial social media following recently asked me a very straightforward question about TikTok: “Why can’t they (the American government) just ban it?”
Banning TikTok will be difficult. The national security powers suggested for use protect against threats emanating from outside of the United States (effectively “imports of threats”) but the national security concern involves the exportation of American data, a mismatch of both directional flow and subject matter. The bill that has been proposed to ban TikTok, the ANTI-SOCIAL CCP bill, uses the International Emergency Economic Powers Act (IEEPA) in a way that may not survive Constitutional challenge. Additionally, it may be difficult to pass the legislation politically, despite the clear reasons to support banning the app. Setting aside the political and legal obstacles, technology itself may make banning the app difficult to accomplish in practice. With so many users on TikTok, expect to see teenagers making the foolish decision to jailbreak their phones to get around the Apple Store and Google Play not allowing the apps to be downloaded through their respective operating systems.
This article is the first in a series of three posts. The first article is a procedural recap of where the fight to ban TikTok is, and how it came to this point. The second article provides an overview of the legal, political, and technological difficulties with going forward with the proposed ban. The third article presents a way forward to successfully ban TikTok and the Chinese intelligence operation running through the app.
TikTok is a social media app owned by ByteDance, a Chinese company, and the app has over 100 million American users. TikTok allows those users to create short videos to share across the platform with other users. The controversy with the app is that, under the Chinese National Intelligence Law, ByteDance shares information about users with the Chinese Communist Party (CCP). The Chinese National Intelligence Law authorizes the Chinese government to take control of any Chinese company’s communication networks, which includes all data collected through the use of TikTok. In essence, TikTok can work like a giant espionage operation for the Chinese government in that the identities, locations, thoughts, and more of American users are transmitted back to China and shared with the Chinese government. Though other considerable national security concerns exist with TikTok, the primary concern boils down to Americans voluntarily building dossiers on themselves and their friends on behalf of the Chinese government through the use of this app. Most people do not question the national security concerns that TikTok poses to America, its government, and the American people. The only question seems to be how to eliminate the threats.
The IEEPA provides peacetime authority to the President to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside of the United States, to the national security, foreign policy, or the economy of the United States, if the President declares a national emergency with respect to such threat. Hence the IEEPA provides the basis for such powers as an external threat coming into the United States.
On May 15, 2019, President Trump issued Executive Order 13873, Securing the Information and Communications Technology and Services Supply Chain. This EO pronounced that the widespread use of communications networks that could be exploited for foreign adversaries created an extraordinary threat to American national security. The foreign adversary at the heart of the EO was China because American data collected by the app could be shared with the Chinese Communist Party under Chinese law. President Trump renewed the EO in May 2020, providing a longer time in which the national emergency could be declared.
On August 6, 2020, President Trump invoked his emergency powers under IEEPA and the EO and issued Executive Order 13942. This EO specifically identified TikTok as a national security threat. He articulated the threat in that EO, which essentially states that because TikTok automatically captures the data of its users, such as location data and search history, enabling the Chinese Communist Party to build dossiers on users, track the location of federal employees, collect personal information for blackmail, and commit corporate espionage, the app could be classified as a foreign threat and banned through Executive Order. President Trump instructed the Secretary of Commerce to identify a list of prohibited transactions with ByteDance or its subsidiaries (TikTok). The Secretary of Commerce promulgated a list of five prohibited transactions, including any action by an app store (such as the Apple Store or Google Play) to host the application or make it available for download to users. This was supposed to go into effect on September 27, 2020, leading ByteDance to challenge the validity of the actions and seek a preliminary injunction against the ban going forward. The request for injunctive relief was held in the District Court for the District of Columbia by Judge Carl Nichols.
ByteDance based their lawsuit seeking injunctive relief on multiple Constitutional grounds. The company claimed the proposed ban violated the Administrative Procedure Act, the First Amendment, the due process clause of the Fifth Amendment, the takings clause of the Fifth Amendment, and that the President’s and Secretary of Commerce’s actions exceeded their authority under the IEEPA. They claimed they would be irreparably harmed without injunctive relief.
Judge Nichols determined that the Secretary’s first order, to ban the further distribution of TikTok through the app stores, likely exceeded the grant of authority under the IEEPA. His rationale was that the subject matter being regulated did not fall under the ambit of the IEEPA. Specifically, there are two exceptions to the IEEPA. First, the IEEPA does not grant the President the power to ban the importation or exportation of information or informational materials, which the court stated was the content of posted videos, being sent to TikTok servers and then the CCP constituted. Second, personal communications are also excluded, and the court found that the de minimis value of each individual video characterized the content as personal communication.
On June 9, 2021, President Biden revoked the Executive Orders issued by President Trump and replaced them with a different Executive Order. Executive Order 14032 laid out a process for the federal government to address “unacceptable risk.” President Biden’s response takes place in three parts. First, the Secretary of Commerce had 120 days to issue an interagency report with recommendations for addressing the harm of American personal data going to China through Chinese social media apps. Second, the Secretary of Commerce had 180 days to recommend additional federal executive actions toward mitigating the harm. Third, the Secretary of Commerce had a duty to perform ongoing evaluations of transactions involving these apps that pose an unacceptable risk to the United States.
To date, nothing of consequence has come from this Executive Order and at last check, there was hope some recommendations could be released in early 2023. To that end, Senator Marco Rubio has introduced the ANTI-SOCIAL CCP Act, which is the subject of the next article in this series.
Despite the government publicly magnifying the harms caused by TikTok and other Chinese social media, Americans continue to download and post content on the app. While American college students continue to expose their dance moves on TikTok, TikTok has continued to expose the impotency of the American government’s response.
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