Trump says TikTok is a national security threat because of its owner, Beijing-based ByteDance. TikTok insists it does not share U.S. information with the Chinese government.
Either way, it would mark the first time the government has invoked international emergency powers to ban a huge consumer app like TikTok, and free-speech groups as well as TikTok’s Chinese parent company are already warning about the dangerous precedent it could set.
The exact boundaries of the ban are still being worked out, and it is likely they won’t be fully detailed until right when the order goes into effect.
“It creates 45 days of ambiguity,” said Robert Chesney, an associate dean at the University of Texas School of Law. “Maybe that’s purposeful, maybe it’s not.”
Here’s what that means for the app’s more than 100 million U.S. users, plus its 1,500 employees here.
What does the order actually say?
The order Trump signed on Aug. 6 relies on the International Emergency Economic Powers Act, which gives the president authority to regulate economic transactions in the event of a national emergency.
In this case, Trump’s TikTok order says it will prohibit “any transaction by any person, or with respect to any property, subject to the jurisdiction of the United States, with ByteDance Ltd. (a.k.a. Zìjié Tiàodòng), Beijing, China, or its subsidiaries.” That means no business or person in the United States could legally “transact” with TikTok.
The issue? The term “transaction” remains undefined. The order states that the Commerce Department must determine what is prohibited and make it clear when the order takes effect in September. But the department isn’t saying a whole lot before that. Experts say sanctions could include removing TikTok from the Apple App Store and Google Play Store, prohibiting companies from signing contracts with TikTok and even stopping employees from working for it in the United States.
However, Commerce has not yet confirmed that any of these prohibitions will happen.
“In accordance with the recently issued Executive Orders, the Commerce Department is working diligently to identify which transactions must be prohibited to safeguard the national security of the United States,” the department said in a statement. “While the Department cannot comment further on internal deliberations, it is considering relevant information from all sources, including the intelligence community, law enforcement, publicly available information, and welcomes input from private industry and other interested parties in making those determinations.”
Will I still be able to use TikTok?
If you are one of the millions of users who already have TikTok downloaded, you will probably still be able to use it, said James Lewis of the Center for Strategic and International Studies, a think tank in Washington, D.C. But some of the features might not work and it might deteriorate into a shell of its former self pretty quickly.
While it seems likely that the app would be removed from app stores, the U.S. government has no clear way to remove apps that have already been downloaded to phones. People who already have it should still be able to open the app, swipe through videos and even create their own, Lewis said. That does rely on TikTok’s servers still sending information to the app. But if TikTok has been removed from app stores, users won’t receive updates. And that might eventually break features — and make devices less secure if the app can’t get necessary security updates and patches.
“An unintended consequence of this order, which is couched in terms of protecting national security, is it might mean people can’t get security updates,” said Kurt Opsahl, deputy executive director and general counsel of the Electronic Frontier Foundation, a digital rights organization.
Some have speculated that “transaction” could broadly encompass even a user scrolling through the app or making a video. But legal experts think that expanded definition is a stretch and would be tough to enforce.
“Nobody thinks there are going to be prosecutions of teenagers for posting a TikTok or just having the app on their phones,” Chesney said.
What will happen to all the TikTok workers here?
TikTok says it has about 1,500 employees in the United States, including nearly 1,000 whom it hired this year alone. Since a transaction often means exchanging money for a service, it’s possible those employees would be barred from working from TikTok if the order goes into effect. One employee in California, Patrick Ryan, has already teamed up with lawyers and started a GoFundMe campaign to raise money to potentially file a court order to demand that TikTok still be allowed to pay its employees.
TikTok is also home to thousands of social media influencers, many of whom have built entire successful businesses on the app. TikTokers have been urging their followers to find them on other social media sites just in case, but they say they don’t want to the leave the app unless they are forced to.
“TikTok’s given me my entire life,” TikTok beatboxer Spencer Polanco told The Washington Post.
How did we get to this point, anyway?
It boils down to China’s control over companies based in the country, and the tenuous relationship between the United States and China. Trump, lawmakers and some cybersecurity experts are concerned that China could compel TikTok owner ByteDance to hand over information about its U.S. users. TikTok has vehemently insisted that it stores all U.S. customer data outside China and that it does not hand it over to the Chinese government.
National security concerns have persisted. Meanwhile, Trump has stepped up his rhetoric blaming China for the spread of the novel coronavirus. In one interview, he suggested banning TikTok could be in retaliation for the virus’s spread.
Two of Trump’s advisers got into a yelling match in the Oval Office about the best course of action to take as the president weighed whether to try to force ByteDance to divest from TikTok in the United States or to outright ban the app.
Trump then spoke with Microsoft CEO Satya Nadella, the tech giant said, and agreed to let it pursue a deal to buy TikTok. Microsoft has said it will finish acquisition talks with ByteDance by Sept. 15. But Trump also issued the executive order, which indicates the app will be banned if Microsoft’s deal talks fail.
TikTok could also try to find other U.S. investors, including potentially Twitter.
What about this second order?
Trump issued a second order concerning ByteDance on Aug. 14, this one saying that the company must divest after an acquisition of video app Musical.ly in 2017.
The Committee on Foreign Investment (CFIUS) had been investigating that merger, and its process can untangle foreign company deals in the U.S. if it finds a national security concern. Trump’s order said there is “credible evidence” that the merger “might take action that threatens to impair the national security of the United States.”
This order gives ByteDance 90 days to divest, which could indicate that the government might give Microsoft, Twitter or another American firm more time to buy TikTok. But that is not guaranteed and the 45-day ban order still stands.
The new order also requires ByteDance to give CFIUS regular updates on its plans to divest, likely giving the government more intel into possible deals.
“That means the order can compel transparency regarding the prospects for a sale that otherwise might not have been there,” Chesney said.
Microsoft still has weeks before its Sept. 15 deadline, and the fate of TikTok remains unclear. TikTok said in a blog the day after Trump issued the Aug. 6 ban order that it was “shocked” by the move.
“This Executive Order risks undermining global businesses’ trust in the United States’ commitment to the rule of law, which has served as a magnet for investment and spurred decades of American economic growth,” the company wrote. “And it sets a dangerous precedent for the concept of free expression and open markets.”
The company also indicated that it would pursue “all remedies” to ensure it was treated fairly, indicating it was open to filing a court challenge.
No one is quite sure what to expect because Trump’s type of order has never been used on an app with the magnitude of TikTok before.
“We are breaking new ground,” Lewis said.