THE BANNING OF TIKTOK, AND THE BAN OF FOREIGN SOFTWARE FOR NATIONAL SECURITY PURPOSES.

• Author: Clausius, Madison

INTRODUCTION

On August 6, 2020 President Trump issued an executive order under the International Emergency Economic Powers Act (IEEPA) prohibiting all interactions between American citizens and the Chinese-based company ByteDance Ltd, essentially banning the use of the popular app TikTok in the United States. (1) Questions surrounding the legality of this ban emerged immediately. (2) While the Biden Administration reversed Trump's order, President Biden himself has implemented his own order regarding foreign developed technology, suggesting these cybersecurity issues will continue to persist.

The US is not the first country to attempt to prohibit its citizens from using an app created and owned by an out of state developer for security reasons. China and other countries have successfully enacted laws to keep certain foreign apps out of their citizens' hands. (3) To determine the implications of executing these bans and whether they are justified, one must look at the various actions countries around the world have taken in response to perceived foreign technology threats and the costs incurred by those countries to enforce a ban on such perceived threats.

This note explores the possible consequences of President Trump's attempted TikTok ban by looking at what the effect has been when other countries have cited national security concerns to ban foreign-developed technology. First, the question of whether a US president has the power and legal justification to ban TikTok will be addressed. Many people have raised questions about the legality of the Trump administration's actions, including TikTok who took legal action against the government after the ban, claiming the administration lacked the justification to ban the app. (4) Next, this note will delve into what a ban might mean for the future of the United States by analyzing the impact of bans on foreign technology in China, India, and Germany. Finally, the possible implications of an outright ban of foreign technologies in the United States will be hypothesized based on studies of countries that have banned certain foreign technology. Draconian cybersecurity laws that keep out foreign technology can harm international cooperation, prevent the spread of ideas and information in violation of the right to expression (5) , and allow countries to collect data from their citizens that amounts to a privacy violation. (6)

1. CAN THE PRESIDENT LEGALLY BAN TIK TOK?

   President Tramp's attempt to cut off all interactions with TikTok developer ByteDance Ltd. was immediately met with backlash from TikTok and First Amendment rights advocates who questioned the legality of the ban. (7) The order "draws its legal authority from the International Emergency Economic Powers Act, which allows the president to regulate economic transactions in a national emergency. Past administrations have used it to punish foreign governments... but have never used it against a global technology company" (8) making the president's actions unprecedented behavior. The Tramp administrations rationale for banning TikTok, which is shared by politicians who support the ban and stricter laws dealing with foreign tech entities generally, (9) is that because TikTok is a Chinese owned company, they can be forced by the government to share the data of its American users with China, thus posing a national security threat. (10) However, according to James Lewis, Senior Vice President and Director of the Center for Strategic and International Studies, the data collected by TikTok is not nearly as sensitive or important to national security as the data that was leaked by previous breaches in the past, such as the Equifax data breach of 2017, (11) and it is not as easy for the Chinese government to get the information as it may seem. (12) Also, while security vulnerabilities in TikTok's software were found that could allow hackers to gain control of TikTok accounts, TikTok engineers were receptive to the criticism and TikTok and made the necessary security adjustments. (13)

   TikTok sued the Trump administration in response to the ban, claiming the administration "ignored due process" and "authorize[d] the prohibition of activities that have not been found to be 'an unusual and extraordinary threat'" to the nation's security. (14) Another legal concern raised in reaction to Trump's attempted ban is that it violates First Amendment rights. (15)

   TikTok's lawyers and First Amendment advocates have argued that a ban of the app would take away content creator's and user's freedom of expression. (16) Interestingly, TikTok has been used to critique governments across the world, including the Trump Administration. (17) Additionally, because software is considered speech, there is an argument that the ban discriminates based on the identity of the software developer, ByteDance. (18) It is unknown whether these arguments would hold up against the Trump administration's national security argument, although a district judge did find the ban to be improper under the IEEPA. (19) Also, with the Biden administration taking over, the TikTok ban has been replaced with a new order that calls for a broader review of foreign controlled applications. (20) This order is meant to "establish 'clear intelligible criteria' to evaluate national security risks posed by software applications connected to foreign governments." (21)

2. WHAT HAPPENED WHEN OTHER COUNTRIES ACTED AGAINST FOREIGN TECHNOLOGY?

   With the rise of technology and globalization, many corporations began employing modern technology to expand their services to users in multiple countries. (22) In response, most states have had to carve cybersecurity laws out of their national security laws to protect themselves against potential foreign technology threats. (23) Every decision a country makes regarding national cybersecurity has implications for that country. These decisions often have unintended and damaging results for human rights and international relations.

   1. China

      China is known for being notoriously strict regarding foreign software. (24) China's cybersecurity law, passed in 2016, gives the government expansive power in monitoring threats to the country's cybersecurity. (25) Article 1 of the Cybersecurity Law of the People's Republic of China, states that one of the law's purposes is to "safeguard cyberspace sovereignty." (26) By forcing electronic data to be stored locally--within China's borders -- the nation-state can control what its citizens have access to and make it more difficult for foreign countries to access Chinese data. (27) China's cybersecurity law also has strict regulations for network operators (28) and internet service providers (29) which include domestic and foreign social media platforms. The government exerts monitoring powers over these network providers and requires them to provide assistance to government security agencies. (30) For example, if "providers find any content prohibited by the Provisions or other laws and administrative regulations, they must immediately stop transmitting the information, delete the information, keep the relevant records, and report the matter to competent government authorities." (31) The government may also use security certification, inspection, and review to block foreign companies' access to China's market. (32) Noteworthy apps banned "from reaching the countries over 800 million internet users" include Facebook, Google, Snapchat, and Twitter. (33)

      By creating cybersecurity laws that favor domestic technology, the Chinese government can prevent cybersecurity threats while fostering local innovation. China's cybersecurity law has been met with great criticism by foreign businesses, who are subject to greater state control by the broad scope of the law. (34) They argue the law emphasizes protectionism more than security. (35) Complying with these cybersecurity regulations is costly, especially for foreign private companies who wish to conduct business within the country. (36) Smaller companies cannot afford to comply with these strict laws so only big companies with ample resources are able to operate successfully in the country and as noted above, many of these bigger companies, Facebook and Google, for example, are banned. (37) This has opened up the door for Chinese domestic companies to operate in the country. China has many of its own social media applications operated by Chinese companies. For example, "Renren" is a replacement for Facebook and "Sina Weibo" is a substitute for Twitter. (38) While this gives domestic corporations a chance to flourish, preventing foreign technology from being used in the country can lead to less innovation and less opportunity for new technologies.

      There are major concerns that China is using its restrictive cybersecurity law to infringe on citizens' privacy by controlling what their citizens have access to. (39) This could just be a difference between Western ideals and ideals of modern Chinese culture, (40) but it is likely more nuanced. Companies are required to report people to the government if they distribute illegal content, which allows the government to quickly arrest whoever distributed the illegal content and perpetuate the restricted spread of information in the country. (41) Not only do foreign and domestic developers with critical infrastructure have to store all of the data from their Chinese users within the country, but they also must pass a security review by the Chinese government. (42) The Chinese government exercises complete control over these service providers. Through their strict cybersecurity laws, China can restrict information their citizens have access to, by forcing service providers to take down information that does not align with the government's agenda. (43) For example, to do business in China, Apple must exercise strict control over what they allow Chinese citizens to download. (44) Apple has a system in place that rejects or...