I. TikTok and WeChat
TikTok, owned by the Chinese company, ByteDance, Ltd., is a social media app that allows users to create and share short videos.[1] It has become widely popular in the United States, with over 175 million downloads and globally with over one billion downloads.[2] In creating these videos, users can choose from a wide range of sounds, clips, or other TikToks.[3] When opening the app, users find their home screen as featured videos or “for you” videos that the app has chosen.[4] WeChat, owned by the Chinese company, Tencent Holding Ltd., is a messaging, social media, and electronic payment app.[5] It has reportedly over 1.2 billion users globally.[6]
II. National Security Issues
TikTok’s and WeChat’s ties to China have been a point of contention for the U.S. government in recent years.[7] In February of 2019, TikTok paid the Federal Trade Commission $5.7 million to settle an allegation that TikTok illegally collected children’s personal information.[8] But the investigation into TikTok’s data privacy did not stop there. A few months later, the U.S. government began a national security review of TikTok.[9] This was because “all technology companies doing business in China [are] subject to Chinese laws that require companies operating in the country to turn over data when asked to by the government.”[10]
The U.S. government argues that TikTok and WeChat pose a risk to national security because the Chinese government can obtain American user data.[11] Thus, on August 6, 2020, President Trump issued two Executive Orders, under the International Emergency Economic Powers Act, the National Emergencies Act, and section 301 of title 3, United States code to take action against the threats posed by TikTok and WeChat.[12] President Trump’s Executive Order states that “TikTok automatically captures vast swaths of information from its users, including Internet and other networking activity information . . . This data collection threatens to allow the Chinese Communist Party’s access to Americans’ personal and proprietary information . . .”[13] Additionally, President Trump issued another Executive Order addressing similar threats that his administration believes are posed by WeChat.[14] As with TikTok, the argument is that WeChat allows the Chinese Communist Party to collect Americans’ personal and proprietary information.
TikTok has been a national security threat in other countries as well. As of June 2020, India banned TikTok.[15] The Indian government believes that TikTok, amongst other Chinese-owned apps, threatens India’s security and sovereignty.[16] Additionally, TikTok has been under investigation by the European Union, France, and the Netherlands over privacy concerns.[17] Japan is also seeking to restrict the use of TikTok and other Chinese apps.
III. Free Speech
A WeChat user group, WeChat Users Alliance, filed a lawsuit against President Trump to block his executive order that would ban WeChat use in the United States.[18] The WeChat Users Alliance allege that the ban violates the First Amendment, Fifth Amendment, the Religious Freedom Restoration Act, the International Economic Emergency Powers Act, and the Administrative Procedures Act.[19] Additionally, it contends that the ban illegally targets Chinese-Americans.[20] The WeChat Users Alliance argues that a prohibition of WeChat is a restraint on the speech of the Chinese Americans and Chinese-speaking communities in the U.S.[21] In response, the government argues that other social media platforms allow such communications to occur.[22] However, the plaintiffs argue that WeChat is the only effective app for the Chinese citizens to communicate with foreigners because of China’s bans on other apps and because Chinese speakers with limited English have no other options.[23] The government’s national-security interest is significant, but “it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns.”[24]
The United States Magistrate Judge Laurel Beeler, on September 19, 2020, granted the plaintiff’s motion for a nationwide injunction against the executive order finding that “the prohibition was the equality of censorship of speech or a prior restraint on it, for purpose of a preliminary injunction analysis.”[25] Judge Beeler stated the plaintiffs “had shown ‘serious questions’ in their claim that the executive order threatens the users’ First Amendment rights.”[26] Further, U.S. District Judge Carl Nichols issued a similar preliminary injunction to stop the U.S. ban on new TikTok downloads.[27]
While many may view the ban on TikTok and WeChat as U.S. censorship, others view it as the U.S. banning platforms that China censors. Jason Loftus of the Wall Street Journal states, “Some argue that banning WeChat would make the U.S. no better than China, which has suppressed free speech in banning YouTube, Facebook, Twitter and many other U.S. social networking sites. I would argue the opposite: Having millions of American subject to potential surveillance by the Chinese state is an affront to free speech . . .”[28] The Tik Tok litigation is currently ongoing and will continue to drive conversations around the meaning of censorship and free speech in the United States and around the world.
[1] John Herman, How TikTok is Rewriting the World, N.Y. Times(March 10, 2019) https://www.nytimes.com/2019/03/10/style/what-is-tik-tok.html.
[2] Exec. Order No. 13942 85 FR 48637, 2020 WL 4584026.
[3] Herman, supra note 1.
[4] Heather Schwedel, A Guide to TikTok for Anyone Who Isn’t a Teen, Slate, September 4, 2019.
[5] Exec. Order No. 13943, 85 FR 48641, 2020 WL 4584027.
[6]Id.; U.S. WeChat Users All. v Trump, 20-CV-05910-LB, 2020 WL 5592848 (Sept. 19, 2020).
[7] Selina Wang, TikTok’s U.S. Ban is on Hold. What Comes Next?, CNN Business, (October 5, 2020) https://www.cnn.com/2020/10/05/tech/tiktok-what-next-intl-hnk/index.html.
[8] Video Social Networking App Musical.ly Agrees to Settle FTC Allegations That it Violated Children’s Privacy Law, Federal Trade Commission (Feb. 27, 2019) https://www.ftc.gov/news-events/press-releases/2019/02/video-social-networking-app-musically-agrees-settle-ftc (TikTok merged with Musical.ly and goes by TikTok now).
[9] Catherine Shu, TikTok, WeChat and the Growing Digital Divide Between the U.S. and China, TechCrunch (Sept. 22, 2020) https://techcrunch.com/2020/09/22/tiktok-wechat-and-the-growing-digital-divide-between-the-u-s-and-china/.
[10] Patricia Moloney Filiola, TikTok: Technology Overview and Issues, Congressional Research Service(Sept. 29, 2020).
[11] Id.
[12] Exec. Order No. 13942, 85 FR 48637, 2020 WL 4584026.
[13] Id.
[14] Exec. Order No. 13943, 85 FR 48641, 2020 WL 4584027.
[15] Sushmita Pathak & Lauren Frayer, TikTok Changed My Life” India’s Ban on Chinese App Leaves Video Makers Stunned, NPR(July 16, 2020) https://www.npr.org/2020/07/16/890382893/tiktok-changed-my-life-india-s-ban-on-chinese-app-leaves-video-makers-stunned.
[16] Id.
[17] Mathieu Rosemain, French Privacy Watchdog Opens Investigation into TikTok, Reuters(Aug. 11, 2020) https://www.reuters.com/article/us-france-tiktok-privacy/french-privacy-watchdog-opens-investigation-into-tiktok-idUSKCN25718J.
[18] John D. McKinnon, Lawsuit Claims U.S. WeChat Ban Is Unconstitutional, The Wall Street Journal(Aug. 21, 2020) https://www.wsj.com/articles/lawsuit-claims-u-s-wechat-ban-is-unconstitutional-11598059765?mod=djemalertNEWS
[19] Id; U.S. WeChat Users All. v Trump, 20-CV-05910-LB, 2020 WL 5592848 (Sept. 19, 2020).
[20] U.S. WeChat Users All. V. Trump at 10.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Wang, supra note 7.
[26] Id. The federal government chose to appeal the preliminary injunction.
[27] David Shepardson, U.S. Government Appeals Judge’s Ruling to Block WeChat App Store Ban, Reuters(Oct. 2, 2020).
[28] Jason Loftus, WeChat Threatens Free Speech, Wall Street Journal(Oct. 14, 2020) https://www.wsj.com/articles/wechat-threatens-free-speech-11602696748.
New York International Law Review 