President Donald Trump issued an executive order (EO) on Thursday which declares that he is “Addressing the Threat Posed by TikTok.” The order began with a lengthy preamble describing the various risks the administration has deemed are associated with TikTok, a Chinese-owned video-sharing social media app.
According to President Trump’s warning, users of ByteDance Ltd.’s TikTok risk having their personal information captured:
TikTok … has reportedly been downloaded over 175 million times in the United States and over one billion times globally. TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.
Furthermore, Trump warned, TikTok manipulates content in alarming and dangerous ways:
TikTok also reportedly censors content that the Chinese Communist Party deems politically sensitive, such as content concerning protests in Hong Kong and China’s treatment of Uyghurs and other Muslim minorities. This mobile application may also be used for disinformation campaigns that benefit the Chinese Communist Party, such as when TikTok videos spread debunked conspiracy theories about the origins of the 2019 Novel Coronavirus.
Therefore, the president explained, aggressive executive action is necessary to protect Americans:
These risks are real. The Department of Homeland Security, Transportation Security Administration, and the United States Armed Forces have already banned the use of TikTok on Federal Government phones… American companies and organizations have begun banning TikTok on their devices. The United States must take aggressive action against the owners of TikTok to protect our national security.
Before analyzing this particular EO, it’s important to remember what EOs are, generally. As I discussed recently, EOs are a type of written instruction that a president can use to exercise power that the president already has. Presidents have some powers specifically granted by the Constitution, and others delegated via acts of Congress. Presidents often use EOs as formal directives to administrative agencies (which, like the president himself, are part of the executive branch). Presidents cannot create new laws via executive order (legislating is Congress’s turf). EOs must stay squarely within the parameters of enforcing existing law or risk running afoul of Constitutional separation of powers guarantees.
With those basic limitations in mind, let’s move on to looking at the TikTok order.
Under the executive order, that “aggressive action” is a prohibition, defined in Section 1, Subsection (a), as follows:
“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, in which any such company has any interest, as identified by the Secretary of Commerce (Secretary) under section 1(c) of this order.”
This obviously raises the question: what is a transaction for purposes of TikTok or anything else owned by ByteDance Ltd.? Is downloading the app a “transaction”? What about using a previously downloaded app? Or sharing a TikTok video that someone sent you via text message? Or using TikTok to sabotage a political rally?
Per the language of the EO, we’ll all need to wait a bit to hear what, exactly, will be prohibited as a “transaction.” Under Section 1, Subsection (c), the order clarifies that the Secretary of Commerce will define that which constitutes a “transaction” at a later time:
(c) 45 days after the date of this order, the Secretary shall identify the transactions subject to subsection (a) of this section.
The executive order also includes a somewhat confusing statement on the scope of this later-to-be-defined conduct that will be one day prohibited:
The prohibition in subsection (a) of this section applies except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted before the date of this order.
Taking that portion phrase by phrase, it appears to limit the EO’s applicability by creating an exception: “[t]he prohibition . . . applies except to the extent provided by statutes” (emphasis ours).
Here, it appears that Trump is acknowledging that there may be some existing statutes that limit his authority to ban all use of TikTok. One such statute may well be 50 U.S.C. § 1702. That federal law contains explicit exceptions to presidential authority — and it’s a law Trump cites at the top of his own executive order on TikTok. One such exception is as follows:
(b) Exceptions to grant of authority The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly—
(1) any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value;
A Congressional ban on presidential authority to regulate “personal communication which does not involve a transfer of anything of value” would arguably apply to an attempt to regulate social media usage, such as TikTok.
The list of exceptions under 50 U.S.C. § 1702 continues to clarify that the president has no authority to regulate:
(3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. [emphasis ours]
Subsection 3 goes on to include an exception to the exception, clarifying that it does not intend to limit antiterrorism policies and does not except foreign communications “otherwise controlled for export under section 4604  of this title, or under section 4605  of this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of title 18.”
It appears under this language that the “transactions” the Secretary of Commerce will to prohibit must not include the kind of information described above, unless perhaps those transactions could be deemed proliferation or antiterrorism efforts.
There are, of course, other statutes that also limit the president’s power to prohibit transactions with TikTok. The First Amendment is a big one that comes to mind. Hours after Trump released his EO on Thursday, TikTok issued a statement of its own which slammed the Trump administration for “undermining global businesses’ trust in the United States’ commitment to the rule of law” and setting “a dangerous precedent for the concept of free expression and open markets.” TikTok vowed to “pursue all remedies available to us in order to ensure that the rule of law is not discarded and that our company and our users are treated fairly – if not by the Administration, then by the US courts.”
Again, though, the language of the EO does seem to acknowledge the existence of statutory authority that would limit the scope of what it may legally prohibit.
In addition to mentioning limitations set by existing statutes, the EO also appears to anticipate future “regulations, orders, directives, or licenses that may be issued pursuant to this order.” That’s a rather odd choice of language in a presidential directive. Essentially, a reading of this language using traditional principles of statutory interpretation would lead to the following paraphrase: “I’m going to ban something, and I’ll tell you later what that something is. I know I’m not allowed to ban everything, and I expect soon, there will be new limits to my power to ban things. But once I figure out what I’m allowed to do, I’ll ban what I feel like banning.”
The final phrase in the Section 1, Subsection (b) of the EO is even more of a head-scratcher. It ends by clarifying that the prohibition is potentially limited by various statutes and regulations, “and notwithstanding any contract entered into or any license or permit granted before the date of this order.”
If you’re having a bit of trouble following along, you’re not alone. Let’s reprint the entire paragraph here, as the wording is a bit cumbersome:
(b) The prohibition in subsection (a) of this section applies except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted before the date of this order.
As written above, the grammar and punctuation create some ambiguity. Our best guess is that it means to limit the impending prohibition (based on statutes that already exist or some that might exist soon), but to extend that prohibition retroactively – to contracts, licenses, or permits that predate the EO. Given that we don’t yet know which “transactions” are to be banned by this EO, it’s premature to guess which TikTok uses would be forbidden retroactively. Ex post facto? Who knows.
[image via Aude Guerrucci-Pool/Getty Images]
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