Friday, August 7, 2020

Trump Tackles TikTok; Here’s How It Might Be Legal

Yesterday, President Trump issued an Executive Order that prohibits “to the extent permitted under applicable law: any transaction by any person, or with respect to any property, subject to the jurisdiction of the United States, with ByteDance Ltd,” the Chinese company that owns TikTok or its subsidiaries and associated companies. The ban takes effect on September 20, which is 45 days from when the order was signed. A second Executive Order targeted the Chinese company Tencent and its WeChat app.

The obvious question is whether and how President Trump has the authority to unilaterally ban one of the most popular apps in the country. The answer that the president offers in his Executive Order is through the “International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code.”

The International Emergency Economic Powers Act regards the president’s ability to “investigate, regulate, or prohibit… any transactions in foreign exchange… transfers of credit or payments… [and] the importing or exporting of currency or securities” during an “unusual and extraordinary threat.” In the past, the Act has been used to block the assets of terrorist organizations.

The National Emergencies Act is a general law giving the president the power to declare emergencies. The law gives the president additional powers during an emergency but is not a blank check and imposes additional duties as well, such as notifying Congress and publishing the emergency proclamation in the Federal Register.

Similarly, Section 301 of Title 3 is a general law allowing the president to delegate authority. In this case, the Executive Order delegates authority to the Secretary of Commerce to identify prohibited transactions and take steps to implement the Order.

Whether the Executive Order is legal depends on whether courts could be persuaded that TikTok’s presence on American computers and electronic devices presents a national emergency. Courts are generally deferential to executives in an emergency but Donald Trump has shown an alarming tendency to use his emergency powers to legislate when he cannot persuade Congress to go along with his policies.

President Trump had declared at least eight national emergencies before his TikTok ban. Some were legitimate, such as the emergency regarding the pandemic declared on March 13 and the September 2018 emergency providing for automatic sanctions against foreigners who interfere in a US election. Others, such as the February 2019 emergency on the Southern Border after Congress refused to fund the wall and the May 2019 emergency that allowed a massive arms sale to Saudi Arabia against the wishes of Congress, are more questionable.

Aside from the question of legality, the other obvious question about the TikTok ban is why now? The Administration and TikTok had been in negotiations for months and Microsoft was already exploring the possibility of buying the app to break the connection with China’s communist government.

The timing of the move has not been discussed by the Administration but there is speculation that it might relate to a Trump campaign rally back in June. There was disappointing attendance at the rally and, along with the pandemic, much of the blame was assigned to TikTok users who reserved seats and then did not show up. Would the president ban an entire app because its users embarrassed him? Only Mr. Trump and his closest advisors know for sure.

Finally, there is the question of how the ban can be implemented. The Order bans “transactions” and not the use of the app. The focus seems to be on demonetizing the app and keeping it out of American app stores. The real goal may be to interfere with TikTok’s ability to make money and force a sale of the app to an American company. Mr. Trump has already said that the ban would be lifted if Microsoft or another American company bought the app.

President Trump has also suggested that the US should get a cut of any sale, telling reporters, “It’s a little bit like the landlord/tenant; without a lease the tenant has nothing, so they pay what’s called ‘key money,’ or they pay something, but the United States should be reimbursed or should be paid a substantial amount of money, because without the United States they don’t have anything, at least having to do with the 30 percent [Microsoft had been considering purchasing a 30 percent stake in the company rather than buying it outright].”

“What’s appalling is the bundling,” Dr. Nikolas Guggenberger, Executive Director of Information Society Project at Yale Law School, told Engadget. “Even if there were some sort of toll or some sort of tax that they could levy on the transaction, bundling that to a threat to ban something, then nudging a US company into buying the foreign entity, and then levying a tax… even if you found a legal basis for doing so, bundling that is beyond anything that’s even halfway legally sound.”

Guggenberger also questioned the First Amendment implications of the case, saying, “Shutting down TikTok as a medium does chill free speech in an area that is a crucial tool for young Americans to express themselves and [you could see] how impactful it is, whether you agree with what happened or not in Tulsa.”

TikTok doesn’t plan to take Trump’s ban lying down. In a statement, the company said that it was “shocked” at what it said was “no due process or adherence to the law.”

“We will pursue all remedies available to us in order to ensure that the rule of law is not discarded and that our company and our users are treated fairly – if not by the Administration, then by the US courts,” the statement said.

The controversy may impact the election. Per Omnicore, the average age of TikTok users is between 16 and 24, a demographic that already dislikes President Trump. Slightly more than half of TikTok users are male. A ban on the popular app may spur more younger voters to get to the polls.

While there is a lot of evidence that TikTok is a security risk and is in bed with the Chinese government, the precedent of a unilateral ban on a commercial app is troubling. A better course would have been to take the case for a ban to Congress, but Mr. Trump’s toxic relationship with Democrats makes that difficult.

Whether the TikTok ban is legal depends largely on how you view the threat that TikTok presents. US law does give the president authority to take economic action in a national emergency but the law does not define what constitutes a national emergency.

Congress has given presidents a lot of latitude – too much – in their ability to make unilateral decisions for the country. A second timely example is Mr. Trump’s decision to impose new tariffs on Canada despite the ink not being dry on the USMCA. The only real solution is for Congress to exert its constitutional authority and take back the power that it has delegated to the president, but with great power comes great responsibility. Until Congress acts, voters need to make sure that we elect presidents who will use that power responsibly and not another executive who will abuse his authority.

Originally published on The Resurgent

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