Trump v. TikTok.

• Author: Chander, Anupam

TABLE OF CONTENTS I. INTRODUCTION 1145 II. THE TRUMP BAN 1148 III. JUDICIAL CHECKS 1156 IV. APPRAISAL 1161 A. A Threat to National Security? 1162 B. An Organ of Foreign Propaganda 1166 C. The Great Firewall of America? 1167 D. The National Security Constitution 1170 E. A Better Way Forward 1173 V. CONCLUSION 1175 I. INTRODUCTION

On July 31, 2020, with three months to go before the presidential election, thenJ?resident Donald Trump announced that the United States would ban TikTok. (1) TikTok is a social media app that relies on artificial intelligence to select videos that might be of interest to a user based on that user's prior actions on the app. (2) TikTok is the US-based version of the Chinese app Douyin, both owned by Beijing-based ByteDance. (3) Trump declared that the seemingly benign app's Chinese origins "threaten the national security, foreign policy, and economy of the United States." (4) Executive orders followed, invoking the president's powers to respond to international economic emergencies and to rebuff hostile foreign investors. While the company's founder, Zhang Yiming, portrayed TikTok's app as a "window to look into a bigger world," Republican Senator Josh Hawley decried it as a "Trojan horse." (5) The Trump administration would declare TikTok banned from US shores initially in forty-five days, then ninety days, then another few days, and so on. (6) After the November election, news services would wonder if the Trump administration had "forgotten" TikTok. (7) Despite Trump's efforts, TikTok survived, even becoming the world's most visited website in 2021 and the world's most downloaded app in the first three months of 2022. (8) TikTok reported that it a billion monthly active users in September 2021. (9) Ironically, instead of Trump successfully banning TikTok, it was TikTok that banned Trump's videos of his speeches to his supporters on January 6, 2021. (10)

How did a big tech company from China beat the president of the United States on his home turf?

The answer is that the US courts, interpreting both the Constitution and federal statutes, rebuffed the president of the United States even when he alleged a national security emergency threatening the United States. I argue here that the failed TikTok ban thus demonstrated what Harold Koh describes as the "National Security Constitution" at work--the checks and balances between the three branches of government in the context of what the president deems to be a national emergency. (11) In fact, the contemporary statutory framework for national emergencies evolved in response to congressional concerns of an executive with "dictatorial" powers. (12) I will argue that the TikTok ban reveals that such checks and balances are necessary. Trump had targeted a communications platform that had proven popular with his critics. Like the John Adams administration bringing Sedition Act claims against an unfriendly newspaper publisher, (13) Trump was targeting a social media platform that had proven a thorn in his side. (14) TikTok's survival in the face of Trump's attacks shows the vitality of legal checks on executive power.

This Article proceeds as follows. Part II sets out what happened as Trump sought to ban TikTok. This retelling contextualizes the struggle within the politics of the moment--demonstrating how Trump almost succeeded in replacing the app's Beijing-based owner with an American owner led by a political ally. Part III recounts how the struggle played out in the US federal courts. Part IV steps back to appraise the claims in the Trump TikTok ban and its implications for internet governance.

2. THE TRUMP BAN

   In May 2019, President Trump issued Executive Order 13873, "Securing the Information and Communications Technology and Services Supply Chain." (15) The order declared a national emergency relating to potential vulnerabilities in information and communications technology or services from "foreign adversaries." Trump would rely in part on this executive order to issue his executive orders related to TikTok and WeChat a year later.

   On October 23, 2019, Republican Senator Tom Cotton and then-Democratic Senate Minority Leader Chuck Schumer wrote to Joseph Maguire, the acting Director of National Intelligence, to draw attention to "potential censorship and data security concerns" posed by TikTok. (16) The following month, the Committee on Foreign Investment into the United States (CFIUS) launched a review of ByteDance's 2017 acquisition of Musical.ly, a California corporation also with roots in China, which it had folded into TikTok. (17) In May 2020, TikTok hired as its CEO an American, Kevin Mayer, after he was passed over by Disney's board of directors for Disney's top job. (18)

   Meanwhile, in the spring and summer of 2020, TikTok users repeatedly humiliated President Trump. In April, upcoming comedienne (and former Google employee) Sarah Cooper began uploading TikTok clips lip-syncing to Trump's remarks on various topics. (19) Through her facial expressions and gestures, she used Trump's own words to ridicule him to devastating effect, drawing millions of views. In June, K-pop fans and others used TikTok to encourage users to claim tickets for a Trump rally in Tulsa and then not show up. After Trump himself boasted of a million requests for tickets, "fewer than 6,500 supporters came to cheer him on," leaving a mostly empty auditorium. (20) Where Trump relied on Twitter, YouTube, and Facebook to reach his millions of followers, TikTok was the one massively popular media platform that Trump and his supporters did not rely on.

   On July 31, 2020, Trump announced the TikTok ban to reporters on Air Force One, stating, "[a]s far as TikTok is concerned, we're banning them from the United States." (21) Undeterred, Sarah Cooper posted yet another TikTok video mocking him with his own words. (22)

   Just two days later, on Sunday, August 2, 2020, Microsoft issued a statement that it was negotiating with ByteDance about possibly purchasing TikTok. (23) Microsoft had already been contemplating a minority investment in TikTok since earlier that summer, aiming to bring TikTok over to using its Azure cloud services, "making the app one of Microsoft's biggest cloud clients." (24) A small Microsoft investment would have benefited TikTok, in turn, by providing "the endorsement of a blue-chip American company to mollify the Trump administration." (25) But the Trump ban declaration had transformed those talks about a minority investment into negotiations towards an outright acquisition. Many also noted the possible fire sale price that an acquiror might obtain. Noting that "the United States' forcing such a huge company to sell itself was 'really unprecedented,'" Steven Davidoff Solomon, a law professor at the University of California in Berkeley, observed, "[t]his is a forced sale, and ByteDance is trying to keep it from being as much of a fire sale as possible." (26) Oddly, the Microsoft announcement of acquisition negotiations began by noting a conversation between the head of the company and the US president: "Following a conversation between Microsoft CEO Satya Nadella and President Donald J. Trump, Microsoft is prepared to continue discussions to explore a purchase of TikTok in the United States." (27) This made it clear that potential acquirors, at least, believed that the imprimatur of the US president was a precondition for any acquisition. Indeed, it was Trump who placed the weekend call to Satya Nadella. (28)

   On Monday, August 3, 2020, Trump stipulated that "a very large percentage" of the sale price should be "coming to the Treasury." (29) Avery Gardiner, general counsel for the Center for Democracy and Technology, called that unprecedented government demand for a finder's fee for the deal, "protection money." (30) This Trump demand explained why Microsoft had singled out benefits for the US Treasury in its initial announcement of the TikTok negotiations, noting that Microsoft was committed to ensuring that the acquisition would "provid[e] proper economic benefits to the United States, including the United States Treasury." (31) The unusual use of the word "proper" to qualify the "economic benefits" signaled some concern over the arrangements. In his remarks on August 3, Trump said that unless Microsoft or some other "very American" company purchased TikTok, it would be shuttered by September 15. (32)

   On August 6, 2020, President Trump issued an executive order targeting TikTok, relying on his powers under the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act. (33) The order banned any transactions by any person subject to US jurisdiction with TikTok's owner, ByteDance, and any ByteDance subsidiary. (34) This meant that no company operating in the United States could provide hosting services or purchase advertising. Apple and Google would have to remove ByteDance apps from their app stores and refuse to provide any services to the company. While the order did not technically ban TikTok from operating in the United States, the fact that no other company could provide hosting, advertising, or distribution services, even for routine security updates, effectively meant that the app would become unusable in the United States. (35) The order was scheduled to go into effect in forty-five days--that is, September 20, 2020. (36)

   Also, on August 6, 2020, President Trump issued a parallel executive order taking aim at WeChat, a China-based app popular in the Chinese-American community. (37) Unlike ByteDance, which has bifurcated its Chinese and foreign apps, WeChat appears to operate as a unified app with its global operations managed from Shenzhen, China. And unlike the TikTok ban, there was no prior CFIUS investigation because there was no WeChat acquisition of a US company to trigger CFIUS jurisdiction.

   On August 14, 2020, President Trump followed up with a second order against TikTok based on a review by...