How will the Trump administration ban TikTok, and are there any limitations on the use of these mechanisms against other companies?

Question

Background context

The Trump administration recently announced plans to ban the social media app TikTok. The administration claims this is for national security reasons, alleging that TikTok is an agent of the Chinese Communist Party. TikTok denies these claims and has provided statistics about American ownership and employment. As a result, TikTok is currently for sale in the financial markets, with potential buyers including Microsoft and other tech giants.

Question about this

• What specific legal mechanisms will the Trump administration use to enforce the TikTok ban?

• What conditions must be met for the executive branch of the government to use these mechanisms to ban TikTok, and can these mechanisms be used arbitrarily by the President or future Presidents? Do the same laws apply to domestic companies?

• Is it possible that these mechanisms could be used in the future to select winners and losers in the tech industry at the President's personal discretion?

Answer 1

The authority for the ban is laid out here: all that is required is putting the company on the Commerce Department's entity list. More specifically, under 50 USC 1701 there must be an

unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat

If that condition is satisfied (and it has been: we have the emergency), then 50 USC 1702 grants POTUS broad economic powers, including prohibiting transactions in foreign exchange, or any kind of transaction involving any right regarding any property. Under that order, one implementational step for putting a company on the list is an executive review involving the

Secretary of Commerce (Secretary), in consultation with the Secretary of the Treasury, the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the United States Trade Representative, the Director of National Intelligence, the Administrator of General Services, the Chairman of the Federal Communications Commission, and, as appropriate, the heads of other executive departments and agencies

There must be a determination that

the transaction involves information and communications technology or services designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary

and that the transaction "is a threat". This last requirement is the tallest hurdle that a Twitter-ban would face, namely establishing that Twitter is controlled by a foreign adversary.