*Sabrina Marquez
I. Introduction
The U.S. is following the lead of many countries in its attempt to ban the social media app, TikTok.[1] TikTok is a short-form media application which allows users to create up to sixty second videos on virtually any topic.[2] TikTok Inc., a U.S. based corporation, is owned by the Chinese tech company ByteDance, Ltd.[3] TikTok gained traction starting in 2018 after it merged with another ByteDance short-form application, Musical.ly, in 2017.[4] The application surpassed 165 million downloads in the U.S. alone and over two billion downloads worldwide in the first quarter of 2020, with increasing popularity amongst teens.[5]
II. Data Privacy Concerns Posed by TikTok
The rising popularity of the Chinese-owned application has created concern over user data security and the censorship of content in favor of the Chinese Communist Party.[6] Similar to other social media platforms, when users access TikTok, their data is automatically collected.[7] This includes a user’s location, IP address, search histories, consumer behavior, and other private information.[8] TikTok, however, differs from other social media apps such as Facebook because of its foreign ownership.[9] Aside from data privacy, another concern with the application is the inclusion of Chinese propaganda on the platform and the “shadow banning”[10] of pro-democracy videos.[11] This political filtering is particularly alarming as the presidential election cycle nears its conclusion.[12]
Due to the data capabilities of TikTok and how it allows China access to U.S. user data, the Senate voted to ban TikTok from government issued devices.[13] The U.S. is not the only country troubled by TikTok’s collection of user data.[14] India recently banned TikTok, along with fifty-eight other Chinese-owned applications, claiming they were “engaged in activities which [are] prejudicial to [the] sovereignty and integrity of India, defen[s]e of India, security of state and public order.”[15] The ban was implemented shortly after a clash on the India-China border, which resulted in the death of at least 20 Indian soldiers.[16]
ByteDance took numerous steps to address data privacy concerns by hiring an American CEO, blocking unauthorized access to user data, and setting up headquarters located outside of China.[17] The company ensures that U.S. user data is not being stored in China, but in Singapore and the U.S. instead, rendering the data inaccessible to their parent company.[18]
III. President Trump’s Executive Order to Ban the Application
Despite these safety assurances, on August 6, 2020, President Donald Trump signed Executive Order 13,942 (the Executive Order) effectively prohibiting American use of TikTok for the threat it poses to national security.[19] The Executive Order prohibited any person from engaging in a transaction with ByteDance beginning forty-five days after the issuance of the order.[20] The deadline has been extended multiple times in 2020, with additional delays anticipated.[21] The Order would deny users access to the application and block the platform from receiving software updates needed to function.[22] The executive action by President Trump placed pressure on ByteDance to sell TikTok to a U.S. based company so the application could continue operating within the U.S.[23] President Trump has expressed approval of the proposed deal where Oracle and Walmart would become minority shareholders of a new entity, TikTok Global.[24] The deal would place Oracle in charge of the collection and storage of U.S. user data to alleviate the national security threat, while ByteDance retains majority ownership in the company.[25] Although, Chinese authorities have revised the rules that govern the sale of technology to foreign buyers, the result of which may hinder the sale.[26]
President Trump derives his authority for the Executive Order from the International Emergency Economic Powers Act (IEEPA).[27] IEEPA grants the President the power to deal with any “unusual and extraordinary” threat to national security, which has its source at least in part located in the United States, by investigating, regulating, or prohibiting transactions that fit the criteria.[28] However, the powers granted to the president under the IEEPA are limited in certain respects.[29] For example, the president is not permitted to regulate or prohibit “any postal, telegraphic, telephonic, or other personal communication.”[30]
IV. TikTok’s Response to President Trump’s Executive Order
In response to the Executive Order, TikTok and ByteDance filed suit against President Trump, the Secretary of Commerce, and the Department of Commerce in the United States District Court for the Central District of California.[31] TikTok and ByteDance allege, inter alia, that President Trump exceeded the authority granted to him under IEEPA by enacting the Executive Order.[32] Additionally, TikTok and ByteDance allege they were given neither notice nor opportunity to oppose the deprivation of their property, in violation of their Fifth Amendment due process protections.[33]
TikTok argues the Executive Order failed to identify how their application poses an unusual and extraordinary threat to national security.[34] They contend that President Trump uses ambiguous language to describe data privacy issues and does not substantiate a specific threat to the U.S.[35] TikTok further alleges the President issued the Executive Order for political gain and to establish dominance over China, rather than the reasons outlined in the IEEPA.[36] Furthermore, TikTok claims the executive action implemented by the President falls under the exception of § 1702(b)(1) because the application transmits personal communication between its users and their devices.[37] Therefore, if the prohibition falls under the § 1702(b)(1) exception, President Trump lacked the authority under the IEEPA to implement a ban on the application and he will need to find a different avenue to restrict TikTok’s presence in the U.S.[38]
In addition to the ongoing litigation, TikTok and ByteDance have filed suit in the District Court for the District of Columbia seeking a preliminary injunction against the Executive Order.[39] TikTok requested an emergency hearing before the Executive Order’s implementation on September 27, 2020, arguing the company has attempted to comply with the administration’s everchanging demands.[40] The federal judge granted the preliminary injunction, pausing the Executive Order insofar as it removes the application from U.S. app stores.[41] Thus, consumers can continue downloading TikTok in the U.S.[42] The judge made no further findings as to the validity of the Executive Order.[43] This ruling demonstrates a pattern in favor of foreign-owned companies, as another Chinese-owned application, WeChat, successfully sought an injunction against an executive order banning the platform, similar to the order affecting TikTok.[44] The Justice Department has filed an appeal in the United States Court of Appeals for the District of Columbia Circuit, seeking to lift the preliminary junction that prevented the Executive Order from going into effect.[45]
If the Executive Order is upheld and TikTok is banned from the U.S., the impact may be detrimental to American owned businesses.[46] The banning of foreign-owned companies in the U.S. is likely to create distrust on a global scale.[47] This may result in retaliation from other countries, leading to a trend of “De-Americanization” in the global market.[48] As tensions rise between the U.S. and China, it will be interesting to see if ByteDance moves forward with the sale of TikTok to American-owned businesses amidst pressure from both countries.[49] If TikTok refuses to sell the application and litigation continues, the outcome will provide insight on presidential authority to regulate applications owned by foreign entities and may further aggravate U.S. relations with China.
*Sabrina Marquez is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Sabrina is a teaching assistant for Professor William Hubbard’s introduction to lawyering skills course, president of the Latin American Law Students Association, and community service director for the Student Bar Association. This summer, Sabrina interned for the Hon. Douglas R. M. Nazarian in the Maryland Court of Special Appeals. Sabrina is a recipient of the 2021 Baker Donelson Diversity Scholarship. This upcoming year, Sabrina will be a summer associate for Baker, Donelson, Bearman, Caldwell & Berkowitz P.C.
[1] Jennifer Hassan & Ruby Mellen, It’s Not Just the United States: These Governments Also See TikTok as a Problem, Wash. Post World (Sept. 18, 2020, 12:17 PM), https://www.washingtonpost.com/world/2020/08/03/its-not-just-united-states-these-governments-see-tiktok-growing-problem/; Exec. Order No. 13,942, 85 Fed. Reg. 48,637 (Aug. 11, 2020).
[2] See Andrew Meola, Analyzing TikTok User Growth and Usage Patterns in 2020, Bus. Insider (Feb. 12, 2020, 5:32 PM), https://www.businessinsider.com/tiktok-marketing-trends-predictions-2020.
[3] See Paige Leskin, Inside the Rise of TikTok, the Viral Video-Sharing App Wildly Popular with Teens and Loathed by the Trump Administration, Bus. Insider (Aug. 7, 2020, 5:20 PM), https://www.businessinsider.com/tiktok-app-online-website-video-sharing-2019-7.
[4] Id.
[5] See Taylor Walshe & Shining Tan, TikTok on the Clock: A Summary of CFIUS’s Investigation into ByteDance, Ctr. for Strategic & Int’l Stud.: Blogs (May 13, 2020), https://www.csis.org/blogs/trustee-china-hand/tiktok-clock-summary-cfiuss-investigation-bytedance.
[6] See id; Exec. Order No. 13, 942, supra note 1 at 48,637.
[7] Walshe & Tan, supra note 5.
[8] Id.
[9] See id.
[10] Content is shadow banned when the application’s algorithm limits the circulation of the video, reducing the number of viewers and overall interaction with the content. See Hubert Davis, TikTok Shadowbanned: What It Is, Examples, & How to Get Unshadowbanned, Screen Rant (July 13, 2020), https://screenrant.com/tiktok-shadowban-explanation-solution-zero-views/.
[11] Walshe & Tan, supra note 5 (explaining the app “scrubbed” the platform of videos referencing Hong Kong protests in 2019).
[12] Id.
[13] Nandita Bose, U.S. Senate Votes to Ban TikTok App on Government Devices, Reuters, https://www.reuters.com/article/us-usa-tiktok-senate/u-s-senate-votes-to-ban-tiktok-app-on-government-devices-idUSKCN2522ON (last updated Aug. 6, 2020, 1:40 PM)
[14] See Shubham Agarwal, India Bans TikTok and 58 Other Chinese Apps Over Privacy Concerns, Digit. Trends (June 30, 2020), https://www.digitaltrends.com/mobile/india-tiktok-wechat-ban/.
[15] Press Release, Press Info. Bureau Gov’t India, Government Bans 59 Mobile Apps Which Are Prejudicial to Sovereignty and Integrity of India, Defence of India, Security of State and Public Order (June 29, 2020), https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206.
[16] Agarwal, supra note 14.
[17] See Why We Are Suing the Administration, TikTok (Aug. 24, 2020), https://newsroom.tiktok.com/en-us/tiktok-files-lawsuit.
[18] Id.
[19] See Exec. Order No. 13, 942, supra note 1, at 48,637–38.
[20] Id.
[21] See Charles Riley & Julia Horowitz, Trump Approves TikTok Deal. But Big Questions Remain, CNN Bus., https://www.cnn.com/2020/09/21/tech/tiktok-oracle-walmart-explained/index.html (Sept. 21, 2020, 5:25 PM).
[22] See Zak Doffman, TikTok Users —Here’s How Trump’s New Ban Affects You, Forbes (Aug. 7, 2020, 12:15 AM), https://www.forbes.com/sites/zakdoffman/2020/08/07/trump-tiktok-ban-microsoft-tencent-wechat-45days/#46b12ae413ab.
[23] See Nikki Carvajal & Caroline Kelly, Trump Issues Orders Banning TikTok and WeChat from Operating in 45 Days If They Are Not Sold by Chinese Parent Companies, CNN, https://www.cnn.com/2020/08/06/politics/trump-executive-order-tiktok/index.html (Aug. 7, 2020, 7:26 AM).
[24] See Mike Isaac, TikTok Files for Injunction to Stop Ban of App, N.Y. Times Tech. (Sept. 23, 2020), https://www.nytimes.com/2020/09/23/technology/tiktok-injunction-ban-app.html.
[25] See Riley & Horowitz, supra note 21.
[26] See Sherisse Pham et al., New Chinese Rules Could Complicate a Sale of TikTok’s US Business, CNN Bus., https://www.cnn.com/2020/08/31/tech/tiktok-bytedance-china-us-hnk-intl/index.html (last updated Aug. 31, 2020, 8:50 AM) (“[T]he rule change would likely require ByteDance to obtain government permission before it could sell TikTok to a foreign company.”).
[27] 50 U.S.C. §§ 1701-1708; seeExec. Order No. 13, 942, supra note 1, at 48,637.
[28] 50 U.S.C. §§ 1701, 1702(a)(1).
[29] § 1702(b).
[30] § 1702(b)(1).
[31] See generally Complaint for Injunctive & Declaratory Relief, TikTok, Inc. v. Trump, No. 20-cv-7672 (C.D. Cal. Aug. 24, 2020), 2020 WL 4937435.
[32] Id. at 3.
[33] Id. at 28.
[34] Id. at 16.
[35] Id. at 33–34; see Exec. Order No. 13, 942, supra note 1, at 48,637 (claiming TikTok’s data capabilities “may also be used for disinformation campaigns” and are “potentially allowing China to track the locations of Federal employees[.]”) (emphasis added).
[36] See Complaint for Injunctive & Declaratory Relief, supra note 31,at 65–69.
[37] Id. at 32–33.
[38] See id.
[39] See Isaac, supra note 24.
[40] See id.
[41] See Mike Isaac & David McCabe, TikTok Wins Reprieve from U.S. Ban, N.Y. Times (Sept. 27, 2020), https://www.nytimes.com/2020/09/27/technology/tiktok-ban-ruling-app.html.
[42] See id.
[43] See id.
[44] See Danny Chrichton, TikTok Files for Injunction Against Pending Trump App Ban, TechCrunch (Sept. 23, 2020, 4:38 PM), https://techcrunch.com/2020/09/23/tiktok-files-for-injunction-against-pending-trump-app-ban/.
[45] Mike Isaac, U.S. Appeals Injunction Against TikTok Ban, N.Y. Times (Oct. 8, 2020, 4:34 PM), https://www.nytimes.com/2020/10/08/technology/us-appeals-injunction-against-tiktok-ban.html.
[46] See Keman Huang & Stuart Madnick, The TikTok Ban Should Worry Every Company, Harv. Bus. Rev. (Aug. 28, 2020), https://hbr.org/2020/08/the-tiktok-ban-should-worry-every-company.
[47] Id.
[48] Id.
[49] See Pham et al., supra note 26.
University of Baltimore Law Review 