And how it could be held up by the courts.
And how it could be held up by the courts.
T he talks over TikTok’s future have entered a bizarre limbo, where President Trump has given his blessing to the outlines of a deal but could still decide to ban the Chinese-owned video-sharing app from the United States.
Trump has a deal on his desk that could — if TikTok sticks to its promises — create over 20,000 jobs in the United States. It would require, though, the president’s acquiescence to Beijing, which has prohibited ByteDance, TikTok’s parent company, from selling its algorithm. The Oracle bid “blessed” by the president is a bad deal from the standpoint of U.S. national security: ByteDance would retain majority control over TikTok, and although Oracle could inspect the app’s algorithm, that code would not come under U.S. ownership. It meets none of the criteria that Trump set out during the negotiations, and China hawks in the administration are lobbying him to turn it down.
Should he decide against the deal, the president has a solid way forward in Commerce Department guidelines issued last week that outline a how a ban would work.
“We have taken significant action to combat China’s malicious collection of American citizens’ personal data, while promoting our national values, democratic rules-based norms, and aggressive enforcement of U.S. laws and regulations,” Commerce secretary Wilbur Ross said in a statement last Friday, announcing the guidelines that will implement Trump’s executive orders to ban TikTok and WeChat, a Chinese messaging app beholden to Beijing’s censorship and surveillance.
Initially, the orders would have taken effect last Sunday. But after Trump approved of the deal “in concept” the administration delayed this deadline by one week, allowing time to pin down an agreement. When the order takes effect, it will prohibit downloads and updates of TikTok in the United States, gradually making the platform inoperable for U.S. users. A full ban would take place on November 12, halting Internet traffic to the app in the United States.
There’s more to it, though: Despite Trump’s tentative approval of a deal, the end is no closer than it was before his announcement. The ban could yet be held up by the courts. TikTok recently filed at federal court in Washington a request to enjoin the administration’s ban order. A hearing on Sunday morning could result in an injunction against the ban.
If the Trump administration’s experience with WeChat is any indication, such an injunction is not an entirely remote possibility. When the Commerce Department issued its TikTok guidelines, it also released stricter rules that target the Chinese messaging app. Unlike TikTok, WeChat has no plausible means of striking a deal to retain a U.S. presence. The ban guidelines issued last Friday would have also prohibited downloads and updates to the messaging app but — unlike the TikTok guidelines — would have immediately cut it off from U.S. Internet providers.
A federal judge last week blocked the executive order that forms the basis for the WeChat ban. That ruling can provide a window into the merits of TikTok’s case. WeChat argued that the government had violated four key provisions in issuing its ban: The First Amendment, the Fifth Amendment, the International Economic Emergency Powers Act, and the Administrative Procedure Act. It’s telling that of the four concerns the plaintiffs raised, the WeChat ban injunction is based solely on First Amendment concerns — in other words, the court did not find compelling reason to believe that the Trump administration violated due process, the president’s emergency economic powers, or administrative procedure in issuing the ban.
That’s good news for the administration’s WeChat ban going forward — and for any attempt to enforce the TikTok order, if the president chooses to do so. The First Amendment claim made by the WeChat plaintiffs is that a ban would restrict users from communicating with people in China. But this point misses an important fact: The only reason that there are so few alternatives to communicate with China-based individuals is that the Chinese government has banned other means of communication. To argue that the Trump administration’s WeChat ban harms the First Amendment is to ignore the Chinese government’s hand in restricting opportunities for communication. The focus should be on holding the Chinese Communist Party accountable for its censorship, not restricting the administration’s ability to act on a national-security concern.
TikTok’s case against a ban stands on still shakier ground. While the app might be a key part of Gen Z’s social-media diet, it is no bridge between the U.S. and China — and in fact, there is no TikTok in China, only a CCP-friendly version of the app. Perhaps there is a free speech argument insofar as the platform allows users to express themselves, but the platform is not unique in offering a place for posting goofy videos.
All of this is only to preview what future litigation might look like (a look back at the lawsuit TikTok filed, then withdrew before Trump approved the Oracle deal, suggests that the company would have an uphill battle). But as far as temporary injunctions are concerned, TikTok might have little trouble convincing the court that the significant blow to its business caused by a ban justifies delaying Trump’s executive order.
Whatever results from the TikTok court hearing on Sunday, though, one thing is clear: The app — which is owned by a company heavily influenced by the CCP — is no hill to die on in the furtherance of civil liberties. Far from it — despite what opponents of a potential ban argue. One writer at Reason, for instance, called moves to regulate these companies “more akin to how countries like China attempt to control how citizens can communicate.”
These actions, though, don’t resemble China’s Great Firewall in any meaningful way. They’re not intended to control the content of users’ speech, nor to restrict outside information from entering the United States. Instead, the TikTok and WeChat bans are the first steps toward a more comprehensive reckoning with the influence of Chinese technology in the United States. Given the CCP’s expanding role in nominally private enterprises, this is more similar to cracking down on the activities of foreign agents in the United States than it is to government censorship of speech.
Still, the critics are correct to argue that the Trump administration’s handling of this saga has veered into spectacle, and there’s only more chaos around the corner. The Chinese government could move to block the Oracle deal altogether, and the courts could temporarily block any attempt to ban TikTok. One way for the president to cut through the noise, though, would be to stand firm on his promises to ban the app and to defend that decision during any litigation that follows.
Editor’s note: An earlier version of this article incorrectly stated that the hearing on TikTok’s request for an injunction was scheduled for Friday. It has been amended to reflect that the hearing will take place on Sunday.