KJK Attorney Mark Rasch Speaks With Business Insider Regarding President Trump’s Intentions to Ban TikTok
No, Donald Trump can’t ‘ban’ TikTok
By Paige Leskin
The continuing geopolitical dogfight over TikTok has seen President Donald Trump saying he may “ban” TikTok. But the reality, multiple experts say, is that any ban would take extraordinary legal steps — and still not actually keep Americans from using the app.
A nationwide ban on an app would be unprecedented, but that hasn’t stopped Trump from repeatedly saying he would take action against viral video-sharing app TikTok, most recently insisting to reporters aboard Air Force One he has the “authority” to do so “with an executive order or that.”
Because TikTok’s parent company, ByteDance, is based in China, questions have circulated around how much access and influence the Chinese government is afforded over the app’s user data and content moderation. The Trump administration escalated those concerns in early July when officials, including the president, expressed a desire to ban TikTok in the US, citing national-security risks.
Several experts who spoke with Business Insider said there’s no simple way to impose an outright ban, but there are workarounds the administration can pursue to get to a similar outcome. Still, those routes are fraught with concerns about violating First Amendment rights and questions of how effective they would actually be in blocking TikTok.
“He can’t outright ‘ban’ TikTok itself,” Kyle Langvardt, a law professor at the University of Detroit, told Business Insider. “But he can interfere so heavily with TikTok’s business that an American TikTok clone will replace it.”
Even on a technical level, a ban is daunting. Removing TikTok from the Apple and Google smartphone app stores would prevent new downloads, but it wouldn’t affect the millions of users using TikTok in the US. One alternative would be to block communication between TikTok servers and US users at the “network level,” as The Verge’s Adi Robertson reports — the same method the Chinese government uses to block popular platforms, like Facebook and Google, behind its “Great Firewall” of internet censorship — but that’s an unprecedented legal move in the US.
So, what can the Trump administration do?
Mark Rasch, a cybersecurity lawyer and former Justice Department prosecutor, said TikTok’s status as an app and “not a ‘product’ or a ‘company’ in the traditional sense” raises “significant practical concerns” about what the Trump administration can achieve using executive orders and existing national-security policy.
The US government has never before taken such definitive action against a smartphone application. Three law professors who spoke with Business Insider argued that because TikTok is classified as “software,” the platform could be covered by the First Amendment. This classification would make a TikTok ban an “unconstitutional restriction of speech,” according to Eric Goldman, a law professor at Santa Clara University.
That leaves only a few options for how Trump’s threat of a ban could actually be put into practice. Originally, reports suggested the administration was considering an executive order that would instruct ByteDance to “divest” TikTok’s operations in the US. That could only be carried out at the conclusion of the ongoing federal review of TikTok’s national-security risks, which the Committee on Foreign Investment in the United States (CFIUS) has been conducting since late 2019.
The CFIUS review focuses on ByteDance’s 2017 acquisition of Musical.ly, a popular social network that was later merged into TikTok in the US. A 1988 law allows the president to cite CFIUS findings on national-security risks as a reason to shut down foreign business transactions involving companies conducting interstate commerce in the US.
Trump has twice used this authority to block deals in which tech corporations from China and Singapore were poised to take over US-based companies. And last year, CFIUS ordered the Chinese parent company of the gay dating app Grindr to sell the platform because the deal had not been submitted to CFIUS for review when it happened — the same justification for allowing CFIUS to review of the ByteDance and Musical.ly deal.
CFIUS has yet to release its findings on TikTok, but an executive order based on those findings wouldn’t be the same as a US-wide ban.
Experts say there are two other options Trump could pursue to achieve an outcome similar to a ban. One would involve adding TikTok and ByteDance to the US Commerce Department’s Entity List, the blacklist of foreign companies — which includes other major Chinese tech companies — banned from doing business with US entities.
Chinese smartphone makers Huawei and ZTE are already on the list after the US government accused both of plotting to spy on the US via their products. But without other smartphone apps on the list to set precedent for what could happen with TikTok, experts say enforcing any restrictions could be difficult.
“It’s unclear if simply adding TikTok to that list would be enough,” says Jen Golbeck, an information studies professor at the University of Maryland. “The concerns about national security are theoretical, but there’s no evidence that those concerns have played out. Singling out TikTok and banning it would almost certainly be arbitrary and capricious.”
The president could also deploy the International Emergency Economic Powers Act. The IEEPA gives Trump the authority to declare a national emergency, during which he has “broad authority” to regulate foreign economic transactions. In an executive order implemented last year, Trump used the IEEPA to give the administration the ability to interfere in any business transaction involving “information and communications technology or services” that “otherwise pose an unacceptable risk to the national security of the United States or the security and safety of United States persons.”
That could apply to TikTok. However, Langvardt, the University of Detroit law professor points to part of the IEEPA where it specifically says the president cannot regulate “information or informational materials” exchanged between Americans and foreign companies.
ByteDance faces an uncertain future, but American TikTok users don’t
Even if a ban would be technically and legally difficult, the growing uncertainty in TikTok’s future has led ByteDance to explore alternatives to pursue to order to avoid a ban in the US, where the app has at least 80 million monthly users. TikTok was most recently valued between an estimated $30 billion and $50 billion, according to news reports.
A group of ByteDance’s US investors, including Sequoia Capital and General Atlantic, expressed early interest in buying a majority stake in TikTok, The Information reported last month. But The Information later reported that those talks had failed because of concerns that such a takeover “wouldn’t pass muster with the Trump administration.”
In its wake, Microsoft has quickly emerged as a serious buyer of TikTok’s US operations. Microsoft confirmed Sunday it was in “discussions” with ByteDance regarding a potential acquisition.
Trump has set a deadline of September 15 for ByteDance to hash out a deal with a US buyer. Afterward, Trump insists his administration will then take steps to ban the app in the US — but he’s yet to clearly explain exactly how that ban would work.
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