How the Trump administration could ‘ban’ TikTok

The Trump administration is apparently considering a ban on Chinese social media apps, including the popular video app TikTok. Secretary of State Mike Pompeo mentioned the possibility on Tuesday, saying it had been “something we’re looking at” in a Fox News interview with Laura Ingraham.

Pompeo offered few specifics, and the comment could easily have already been bluster. But he also compared TikTok to Huawei and ZTE, two businesses that have suffered very real consequences after drawing US government ire. With tension rising between the US and China, Trump attempting to ban TikTok isn’t out of the question — and while it’s not not quite as simple as Pompeo and Ingraham make it sound, it could still cause trouble for the company and its users.

The most intense app bans happen at the network level, blocking any communication between the targeted servers and users in the country. That’s the approach taken by China’s Great Firewall, and it’s how India enforces its recently implemented TikTok ban. (Australia, which is considering a similar ban, would likely just take the same approach.) But American law doesn’t have any precedent for blocking computer software in that way, therefore it seems unlikely that the White House would be able to follow-through on that kind of heavy-handed network censorship.

Pompeo compared the administration’s TikTok plans to its crackdown on Huawei and ZTE, which included locking them out of government contracts. It’s true that TikTok has been barred from many government employees’ work phones, including members of the US military, and some lawmakers are pushing for a level broader restriction. But Huawei and ZTE sold components to telecom operators who, in turn, caused government agencies. TikTok is just a consumer app, so that’s a notably less serious punishment. “Huawei and ZTE are used by enterprises,” says Samm Sacks, a senior fellow at Yale Law School’s Paul Tsai China Center. “TikTok is used by so many people in the US.”

A much more likely target is the Committee on Foreign Investment in the United States (CFIUS), which oversees mergers and investments involving non-US businesses. CFIUS opened a national security investigation into TikTok last year, citing similar concerns to Pompeo, and there’s enough evidence against the company to create a plausible case.

TikTok is just a subsidiary of Beijing-based company ByteDance, and critics have raised a few issues around both its overall privacy practices and its particular potential ties to the Chinese government. Leaked moderation guidelines discouraged criticism of events like the Tiananmen Square protests. Although TikTok says it stores American user data in the US, there’s a persistent concern that it could pass information to Chinese state agencies. (TikTok has repeatedly denied that it shares information this way, also it says the moderation instructions are no further used.) “The Chinese government has a history of gaining control over nodes in the information system,” Freedom House analyst Sarah Cook told The Verge within an interview a year ago.

If CFIUS decides Chinese ownership is a problem, the council could result in a lot of trouble for TikTok. In modern times, CFIUS has rejected some high-profile merger and acquisition plans — including a Chinese company’s purchase of gay hookup app Grindr, which it nixed on national security grounds. The council could make TikTok restructure in a way that further separates its US presence from its Chinese one, or even make ByteDance sell off, the American app it acquired to help cement its presence in the US. It’s still maybe not precisely a “ban,” though — also it certainly doesn’t generalize to any or all Chinese social media marketing apps.

To really take TikTok off Americans’ phones, the government will have to do something like make Apple and Google sever their ties with ByteDance (along with any Chinese app makers). Getting removed from the iOS App Store and Google Play Store would vastly reduce TikTok’s appeal, even if you could still get access to it through a sideloaded app or website. Apple, in particular, keeps tight get a handle on over iOS devices; its App Store policy is indeed restrictive that it’s spurred antitrust lawsuits. The government would essentially be ordering companies to deplatform TikTok — and deplatforming can be hugely powerful.

To do that, the Trump administration could repeat a tactic it used with Huawei: have the Commerce Department put TikTok on the “entity list” that limits its commercial ties to US companies. The administration doesn’t need congressional approval to get this done, and it can cite any US company that does business using them (barring special exemptions) for violating sanctions. The entity list has stopped Google from working with Huawei on Android phones, and if TikTok were successfully added to the list, Apple and Google would have difficulty keeping them in the App Store.

James Lewis, director of technology policy at the Center for Strategic and International Studies, says putting TikTok on the list could be extreme, unusual, and legally dubious. “They could sanction them, but usually the sanction is tied to trade violations or espionage or proliferation or intellectual property theft. You can’t just do it because you’re mad at a company,” says Lewis. Unlike TikTok, Huawei is facing actual US criminal charges for racketeering and trade secret theft. The claims about TikTok are still suspicions, not legal complaints. Even an unrelated lawsuit for unlawfully collecting children’s data was settled almost instantly.

Trump often isn’t overly worried about whether his orders are lawful. If he problems an executive order that purports to “ban” TikTok or other Chinese apps, it will probably get challenged immediately in court, however it will still create uncertainty and reputational damage. The White House is already attempting to warn investors away from Chinese businesses, and even intermittent app store problems would slow its user growth and hurt advertising revenue. And many users may not realize Trump can’t legally shut down TikTok — so they really could abandon it before anything even happens.

None of those options would constitute a literal banning of TikTok — that’s, a block that cuts US users off from TikTok’s network. Similar to President Trump’s threats of shutting down Facebook and Twitter, Pompeo’s discussion of banning TikTok obscures the real limits people government power. Even so, it could foreshadow genuinely troubling attempts to limit how Americans can use the internet.

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