This article is the second article in a three-part series. The first article detailed the procedural posture of the failed executive actions to create a TikTok ban. This article discusses the current Congressional attempt to ban TikTok, the ANTI-SOCIAL CCP Act. The article then discusses the legal and political difficulties this bill might face, and then briefly discusses the technological difficulties that any action to ban TikTok may face, mainly the jailbreaking of mobile phones that will allow users to download TikTok from outside of the application stores, while rendering those phones far less secure from malware in the process.
On December 13, 2022, Senator Marco Rubio introduced ANTI-SOCIAL CCP Act. This act has one of the more creative Washington acronyms and was drafted with the right goals in mind, but the bill’s approach to banning TikTok likely will not survive judicial scrutiny. Senator Rubio’s bill authorizes the President to use his powers under the International Emergency Economic Powers Act (IEEPA) to block transactions involving Chinese social media companies in the United States. The IEEPA, however, has already proven to be a problematic vehicle through which to drive these actions. In the fall of 2020, the District Court for the District of Columbia placed an injunction against steps taken by the Secretary of Commerce, through the invocation of the IEEPA, to ban TikTok from the Apple Store. The court held the Chinese company ByteDance was likely to prevail on the merits of its lawsuit which stated the actions taken by the President and Secretary were outside of the scope of the powers granted to them by the IEEPA.
Senator Rubio’s bill must overcome those articulated IEEPA concerns, which were found in the carve-outs to the IEEPA, to be effective. The IEEPA created carveouts for “information and informational materials” and “personal communications” as subject matter for transactions covered under the IEEPA. (See 50 U.S.C. 1702(b)). That is to say that attempting to use the IEEPA, an act mainly focused on the national security threats from harm imported into the United States, cannot be used to protect the exportation of communications, video content, and even geolocational data. Senator Rubio’s bill attempts to resolve that import-export dichotomy by stating that the act does not apply to the importation of goods, and then defines goods in a tangible sense, thereby leaving the IEEPA open for the use to ban the importation of non-tangible goods, such as social media apps from “countries of concern” like China.
The ANTI-SOCIAL CCP Act also attempts to address the basis for Judge Nichols’s opinion in awarding the injunction to ByteDance, specifically the 1702(b) exceptions. The ANTI-SOCIAL CCP Act states in Section 2(d)(3) that the exceptions in 1702(b) do not apply to this bill. This effectively creates a carveout within the carveout. This special exception to the exceptions subjects the bill to challenging scrutiny by setting different rules for different applications from different nations at different periods of time. As written, a social media app created in the United Kingdom could share information with GCHQ (the British signals intelligence service), but the same app emanating from China would not be entitled to the exceptions and would be banned. Arguably it would be better to ban both the British and Chinese apps in this scenario, but the permissibility of the British app creates legal hurdles to enforce the bill against the Chinese app.
The special carveout to the carveouts will likely be challenged as an unconstitutional bill of attainder as written in Article One of the Constitution, sections 9 and 10. ByteDance had been afforded protection by these exceptions under the previous carve-outs of IEEPA and has had these rights explicitly reinforced by Judge Nichols’s injunctive ruling. ByteDance would have a strong argument that they had been singled out under an unconstitutional bill of attainder.
This provision may cause further concerns as the IEEPA contains an evolving list of countries that are added and then removed as emergencies change. Furthermore, this opens the door to a sidestep that the app could sell itself to a country that is not of concern and yet share all of the data with ByteDance, and thereby the CCP, after all.
Senator Rubio has attempted to put forward a bill to accomplish an important national security goal and has attempted to do so within the narrow opening given by the 2020 injunctive ruling, but this bill may not be the proper way to go legislatively. So long as the focus of the bills is on what is leaving, the information, rather than what is coming in, an intelligence operation, the attempts to ban TikTok legislatively or through executive action are likely to fail. Congress should consider other legislative changes that could accomplish the same goal, banning TikTok, while also surviving judicial scrutiny.
In addition to legislative difficulties with banning TikTok, political difficulties will make it challenging to pass effective legislation. First, there are over 100 million TikTok users in the United States, a number that surely counts both private citizens and corporate accounts. Amazingly the Biden White House used TikTok inside the West Wing to create videos. The app may have as many as 30 million active users per day. The app drives business through Apple and Google with downloads, of which there have been over 200 million. The app is popular with younger people, who will blame the government for taking away their fun. The adage that “what’s right isn’t always popular and what’s popular isn’t always right” comes to mind when discussing the importance of banning TikTok compared to how well the ban will be received by the Americans affected. In order to convince a bipartisan group of representatives to vote for banning a very popular app, the constitutionality of the act will have to be tightened significantly to ensure representatives haven’t risked political blowback to pass an unenforceable act.
Laws are only as effective as their enforcement, and when technology is the subject of the law, effective enforcement includes additional challenges. The TikTok ban will be no exception. President Trump’s Secretary of Commerce was correct to prioritize banning the new downloading of TikTok through the Apple Store and Google Play store as the first action to be taken. And that action would be the most effective for reducing the number of people who use the app. But even that ban has end-arounds. Jailbreaking an iPhone, or rooting an Android, is the technical practice of changing the manufacturer’s phone settings to get around the preset restrictions on the phone. When an iPhone user jailbreaks his or her phone, the user does this expressly to download applications that are not available for download in the App Store.
This action actually causes greater security risks for Americans. Not only will a jailbroken iPhone allow the user to obtain the TikTok app from outside of the Apple Store, but it also opens the phone to other cyber threats. The Apple Store provides safe applications for users to use, generally free of malware and other risks. Once a user goes outside of the App Store, the user assumes all risks of downloading the code onto his or her phone. That means malware can be downloaded onto the phone or even more invasive tracking or privacy-destroying code. Not only does jailbreaking defeat the efficacy of the ban by allowing users to obtain the TikTok app, but the technique also introduces even greater threats that Apple largely is able to keep away from users.
The federal government needs a better legislative solution to ban TikTok. This solution must capture the directional flow of the harm and the subject matter causing the harm by banning the importation of harmful code and applications rather than the export of excepted information. An effective ban will also contemplate a response to iPhone users jailbreaking their phones for the sole purpose of using the TikTok app. The third article in this series proposes a more effective solution to America’s national security goals.
Stay tuned for the final part of this 3-part series…
Read Part 1: “Why can’t we just ban it?”: How the American government has bungled the TikTok ban
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