7

President Trump issued several executive orders, banning certain Chinese-owned apps in 45 days if they are still owned by their original companies (as I understand it):

  • EO 13942 (August 6, 2020) - TikTok
  • EO 13943 (August 6, 2020) - WeChat
  • EO 13971 (January 5, 2021) - Alipay, CamScanner, QQ Wallet, SHAREit, Tencent QQ, VMate, WeChat Pay, and WPS Office

These executive orders were revoked by EO 14034.

The Commerce Department published regulations on the bans:

Both of these regulations were rescinded.

Hypothetically, if one of these bans had gone into effect, what would have been the actual effect on an app user?

  1. Would app stores be required to remove the apps from the app store for users in the US?
  2. Would app stores run by US companies (e.g. Apple iOS app store, Google Play for Android) be required to remove the apps from the app store for users outside the US?
  3. Would it be illegal for a user in the US to download the app somehow from outside the app store?
  4. Would it be illegal for a user in the US to use the app if they have already downloaded it?
  5. Would it be illegal (under US law) for a US citizen outside the US to download and/or use the app?
  6. Would ISPs in the US be required to try to block network traffic of the app?
1
  • If you haven't seen it, there's a more detailed, but readable, article on Lawfare. It agrees we don't know the answers yet. It also points out: 1) Since TikTok will likely be sold to MS, it's probably not going to be an issue; and, 2) TenCent, WeChat's parent, is a huge problem. It owns a lot of stuff in the US, including chunks of Tesla, Spotify, Reddit, and "Call of Duty*! And unlike TitTok, there's no easy offramp for WeChat. lawfareblog.com/banning-tiktok-and-wechat-another-primer
    – Just a guy
    Aug 7 '20 at 22:00
3

I will try to answer some of my questions based on recent developments and other information I've seen.

  1. Yes. 2. No.

On page 23 of this Commerce Dept. memo on TikTok, it describes:

This prohibition would remove the TikTok app from U.S.-based mobile app stores, preventing mobile users from being able to download the app to their devices or receive updates. As scoped, this prohibition would only apply to app stores accessible in the United States, thus users would still be able to download the app while outside the United States.

On page 15 of this Commerce Dept. memo on WeChat, it describes:

This prohibition would remove the WeChat app from U.S.-based mobile app stores, preventing mobile users from being able to download the app to their devices or receive updates. As scoped, this prohibition would only apply to app stores accessible in the United States, thus users would still be able to download the app while outside the United States.

3,4,5. No for WeChat. In letters sent to the opposite party in a lawsuit and filed with the court, the US government has provided assurances that WeChat users will not have any civil or criminal liability for downloading or using the app for personal or business communication.

we can provide assurances that the Secretary does not intend to take actions that would target persons or groups whose only connection with WeChat is their use or downloading of the app to convey personal or business information between users, or otherwise define the relevant transactions in such a way that would impose criminal or civil liability on such users. In other words, while use of the app for such communications could be directly or indirectly impaired through measures targeted at other transactions, use and downloading of the app for this limited purpose will not be a defined transaction, and such users will not be targeted or subject to penalties.

I'm not entirely sure for TikTok, but the same may be true for TikTok since the prohibited transactions for both are essentially the same.

  1. No. The regulations on prohibited transactions do not require the blocking of traffic from the apps. Simply carrying the traffic of the app is not one of the prohibited transactions, as long as the company does not have a contract for internet transit or peering with ByteDance/Tencent, nor are providing hosting or content delivery services to ByteDance/Tencent.

    On page 23 of the Commerce Dept. memo on TikTok linked above, it says:

User data could still be served by data centers, [redacted] operating outside of the United States.

On page 7 of this declaration by a Commerce Dept. official further explains that WeChat traffic will still flow through the US:

Moreover, this prohibition would not affect Internet transit or peering services in the United States that are not “directly contracted or arranged” by Tencent, and thus would leave the overwhelming majority of Internet traffic, including WeChat data, untouched.

1

It is currently unknown exactly how this will play out. The law allows POTUS to prohibit transactions with Bytedance and subsidiaries, including Bytedance property (such as, their app). Evading the order, or conspiring to evade, is prohibited. The Secretary of Commerce can promulgate regulations to implement the order.

The restrictions would apply to all US humans (citizens and otherwise) and US companies (Google, Apple). Being outside the US is not relevant, but being completely unconnected to the US is (i.e. Kazakhstani company and Kazakhstani citizen). Enforcement would be strictly at the hands of the federal government (assuming that states don't implement such a ban on their own). Although we can't know what the regulations will be, the likely answer to your questions is "yes", though "required to block network traffic" might be most vulnerable to legal attack. The law allows "blocking transactions"; what you describe is reasonably related to "blocking transactions", and seems clearly within the scope of what Congress has allowed.

The rule as of Sept. 18 immediately (i.e. "when officially published", in 4+ days) prohibits

Any transaction by any person, or with respect to any property...with ByteDance... in which any such company has any interest, involving:

Any provision of services to distribute or maintain the TikTok mobile application... through an online mobile application store

A second phase starts Nov 12 which prohibits

provision of internet hosting services enabling the functioning or optimization of the TikTok mobile application

...

directly contracted or arranged internet transit or peering services enabling the functioning or optimization

...

content delivery network services enabling the functioning or optimization

...

utilization of the TikTok mobile application’s constituent code, functions, or services in the functioning of software or services

or any other transaction with the company. In other words, my phone company (I guess) has to filter out TikTok traffic. Also note that

The identified prohibitions herein only apply to the parties to business-to-business transactions

and specifically it does not forbid paying employees and contractors, and does not forbid

The exchange between or among TikTok mobile application users of personal or business information using the TikTok mobile application;

or

storing of TikTok mobile application user data in the United States

and it only applies in the US.

1
  • I have updated the question with links to the Commerce Department regulations. Can you update your answer given that information?
    – user102008
    Sep 18 '20 at 16:18
0

It depends on how the government try to enact this executive order.

(Further interesting article on IEEPA and the EO here from a Harvard Lecturer)

Article Two of the United States Constitution gives the president broad executive and enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive branch. The ability to make such orders is also based on express or implied Acts of Congress that delegate to the President some degree of discretionary power (delegated legislation). (here)

Executive orders (EO's) may be enforced by all levels of state government. For example, state attorneys general offices can act through their own authority, seek assistance from state law enforcement, utilize the courts and judicial system, and work with state agencies that have particular policy concerns or interests. Also, county governments can enforce these orders by acting through their officials and agencies, such as county health departments and county sheriffs. See here.

Specific issues in law, are often tested as and when they present themselves. With specific reference to the EO related to 'TikTok' (here).

Section one has stated:

The following actions shall be prohibited beginning 45 days after the date of this order, to the extent permitted under applicable law: 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.

So - pending section 1(c) - which would see the Secretary of Commence identify which 'transactions' that were considered relevant to this EO.

45 days after the date of this order, the Secretary shall identify the transactions subject to subsection (a) of this section.

Then specifically, it authorises the S. for Commence to take actions to implement the EO, we can see Sec. 4:

The Secretary is hereby authorized to take such actions, including adopting rules and regulations, and to employ all powers granted to me by IEEPA as may be necessary to implement this order. The Secretary may, consistent with applicable law, redelegate any of these functions within the Department of Commerce. All departments and agencies of the United States shall take all appropriate measures within their authority to implement this order.

So ultimately, with reference to your points:

Would app stores be required to remove the apps from the app store for users in the US?

Potentially, if this was mandated by the relevant secretary after the 45 days.


Would app stores run by US companies (e.g. Apple iOS app store, Google Play for Android) be required to remove the apps from the app store for users outside the US?

Users outside the US are not subject to the laws of the US - so they could, theoretically still download the app if it is hosted on servers external to the US. It would probably not be allowed if the app was downloaded on a solely US server. This will again depend on how the Executive Order is legislated for by the secretary/agents of the US government. ("the Secretary shall identify the transactions subject to subsection (a) of this section")


Would it be illegal for a user in the US to download the app somehow from outside the app store?

Yes due to: "Sec. 2. (a) Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibition set forth in this order is prohibited."


Would it be illegal for a user in the US to use the app if they have already downloaded it?

Again, depends on how the secretary enacts this executive order. But, most likely.


Would it be illegal (under US law) for a US citizen outside the US to download and/or use the app?

This is difficult to legislate for - as once outside of US jurisdiction, you are subject to the laws of the land in which you are present. It may well be made illegal via US law, but unenforceable, for example, if the US citizen was in the UK. Ultimately, it is considered that US law applies domestically: see here.


Would ISPs in the US be required to try to block network traffic of the app?

This depends on how the secretary implements the executive order. They could pass a requirement that this happens, pursuant to the executive order. "All departments and agencies of the United States shall take all appropriate measures within their authority to implement this order."

As with everything legal, this is nuanced and develops over time. The enforcement and enacting of an executive order depends on the actions of many government departments.

15
  • 1
    In the context of the International Emergency Economic Powers Act, what exactly is the definition of "transaction", such that installing or using the TikTok software would be a transaction? And in what statute or case law is it defined? Aug 7 '20 at 13:34
  • 1
    This is why it depends on the follow-on laws or regulations created by the relevant secretary of state that are created from this Executive Order. In the IEEPA - it seems to mostly be concerned with economic/financial transactions: fas.org/sgp/crs/natsec/R45618.pdf - its statute and purview is discussed here also in this long document!
    – DrDee
    Aug 7 '20 at 14:42
  • 1
    So legislative history and the intent of the authors of the IEEPA place limits on how far a secretary of state can stretch the definition of "transaction"? Aug 7 '20 at 14:59
  • 1
    It's a really interesting train of thought. I would have thought so - but ultimately, that would have to be argued via the judicial system and legislature.
    – DrDee
    Aug 7 '20 at 15:05
  • 1
    @Justaguy The current executive order says "any transaction by any person, or with respect to any property". Assuming the EO isn't amended, would "or with respect to any property" allow the use of the "acquiring, holding, using or transferring” part of the IEEPA? Aug 8 '20 at 6:05

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.