The big legal questions behind Trump’s TikTok and WeChat bans

Technology

The Trump administration has escalated its threats to ban Chinese social media apps TikTok and WeChat within the US, issuing executive orders last week sanctioning them. The orders will ban “transactions” between US entities and the parent companies of TikTok and WeChat (respectively ByteDance and Tencent). They leave a lot of unanswered questions, but they’re a threatening development for the companies, thanks to presidents’ broad sanctions powers.

On August 6th, Trump declared TikTok and WeChat a “national emergency” because of real — but also politically convenient — privacy and security concerns. He invoked the International Emergency Economic Powers Act (IEEPA), which lets him ban transactions between US and foreign entities. This requires less evidence of wrongdoing than putting ByteDance on the Department of Commerce’s banned “entity list,” something the Trump administration did with Chinese telecom Huawei. And the likely outcome is similar. Apple and Google could have to stop offering TikTok and WeChat on their app stores, and other parts of Tencent’s massive tech and media empire could suffer too. Existing app users wouldn’t necessarily be forced off the network, however, the way they’d be with China’s site-blocking Great Firewall.

“The legal authority for these executive orders is incredibly broad,” says attorney Brian Fleming, a former counsel to the Assistant Attorney General for National Security. “It gives the president a lot of latitude to determine and declare national emergencies.” Trump threatened to use IEEPA powers last year when he demanded US companies leave China. (He didn’t follow through with that particular ultimatum.)

We don’t know exactly what’s getting banned now, though. The rules don’t take effect for 45 days, and the orders basically leave “transactions” as a blank check, giving the Secretary of Commerce the full 45-day period to list specific prohibitions. The results might depend on what these companies to do placate Trump.

If ByteDance sells off TikTok, Fleming says, the sanctions for ByteDance itself might be light — and the newly all-American TikTok wouldn’t face any at all. Meanwhile, Tencent’s sanctions have proven far more complicated because of its massive size. The administration told reporters it’s not banning the popular Tencent-owned game League of Legends, for example, but that’s not remotely clear in the order.

There’s at least one major wrinkle in both cases: while sanctions are nothing new, the ByteDance and Tencent orders ban Americans from accessing a piece of software and (at least in theory) the content on its network. This is unusual and could raise First Amendment questions that don’t apply in other IEEPA cases — including arguments that apps like TikTok are protected speech, or that banning them would infringe on users’ ability to engage in it.

The American Civil Liberties Union argues that speech concerns render Trump’s order unconstitutional. “This is another abuse of emergency powers under the broad guise of national security,” said ACLU national security head Hina Shamsi in a statement. “It would violate the First Amendment rights of users in the United States by subjecting them to civil and possibly criminal penalties for communicating with family members, friends, or business contacts.”

TechDirt’s Mike Masnick also notes that an IEEPA exemption bars “directly or indirectly” prohibiting any “information or informational material” from import or export. The category includes CD-ROMs, newswire services, and films. ByteDance and Tencent could claim apps count as well.

Fleming agrees that the companies could argue either of these cases, but he’s skeptical of both. He believes courts would have to weigh the First Amendment case against the evidence for a national security threat. “There’s heavy deference to executive action in this area, especially when national security is invoked,” he says.

Trump has issued several executive orders that were immediately challenged, but policies like his “Muslim ban” immigration restrictions have repeatedly crept back into court after being declared unlawful. Moreover, we aren’t sure who might file a legal case yet. TikTok said the order had “no adherence to the law,” and it’s reportedly planning to sue as early as Tuesday, arguing that it wasn’t given reasonable notice of the ban. On the other hand, if it closes a deal with an American company, there’s less reason to invite legal trouble. Tencent also has motivation to file a legal challenge — among other things, losing its relationship with Apple would deal a huge blow to both companies in the Chinese market.

If the order stands, how much would it affect American app users? Well, the ByteDance order might be ultimately symbolic. The company was already facing pressure to spin off TikTok from the Committee on Foreign Investment in the United States (CFIUS), and Microsoft seemed likely to seek a deal without this overt ban attempt. (Twitter is reportedly also interested.)

Tencent’s case could be much more important, particularly since there are no clear plans to spin off WeChat in the US. WeChat has a smaller American presence than TikTok, but many users specifically want to connect with family and friends in China, so splitting the markets would be even more difficult than cutting up TikTok. Apple and Google haven’t said whether they would remove WeChat or TikTok under these orders, but if the order bans transactions and isn’t declared unlawful, they’d theoretically have to.

The executive orders escalate a US-China trade war that’s been running through Trump’s entire tenure as president, but their future depends on what happens in November. If Vice President Joe Biden defeats Trump in the 2020 presidential election, he’s pledged to reverse orders like the immigration ban, and he could take a different stance on Chinese social media apps as well. But early signs suggest he’s not a fan of TikTok either — he recently told staff members to delete it from their phones.