By Jiaying Zhang
On February 10th, 2021, the Biden Administration decided to halt two executive orders, which were signed by his predecessor, which banned social media platforms Tiktok and Wechat from the U.S. market.[1] This move will allow American users to continue their enjoyment of these communications applications, but it prevents the courts from further interpreting the effect of the International Emergency Economic Powers Act (IEEPA) on the modern social media platform. Although IEEPA has been invoked 59 times since its enactment in 1977,[2] and been used more innovatively and aggressively in recent decades,[3] this is the first time it has been cited to pressure foreign media companies.[4]
The original executive order was signed by former President Trump in August 2020.[5] Citing data privacy issues and the emergence of Chinese government propaganda on social media, he prohibited these two platforms in the U.S. app stores.[6] As President Trump claimed, he could find his authority to ban these apps from IEEPA, which entitles the president to the broad authority to take economic measures in response to an “unusual and extraordinary” threat to the national security, foreign policy, or economy of the United States.[7] Despite the presidents’ general authority under IEEPA, two exceptions in the statute cast questions on the legality of the ban.
First, as originally enacted, IEEPA forbid the president to “regulate or prohibit, directly or indirectly: any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value.”[8] Second, Amended in 1994, the statute also prohibits presidents from regulating or prohibit, directly or indirectly “the importation from any country, or the exportation to any country . . . of any information or informational materials . . . .”[9] No one would dispute that TIktok and Wechat are often used for personal communication purposes, but whether those personal communications involve a transfer of anything of value deserves more discussion—data is regarded as a valuable asset in our modern world. Some scholars also argue that the ban would not affect the importation or exportation of informational materials because people just need to change a medium.[10] However, this argument implies that the president has the authority to shut down all foreign media as long as U.S. media leaves open to the world.
Fortunately, or unfortunately, courts will not have a chance to look at these two exceptions and give a clear answer to these questions. Nevertheless, Congress may now have stronger incentives to draw the lines between presidential authority and personal freedom before the other two branches step on its toes.
[1] Bobby Allyn, Biden Administration Pauses Trump’s TikTok Ban, Backs Off Pressure to Sell App, NPR (Feb. 10, 2021).
[2] Christopher Casey, Ian Fergusson, Dianne E. Rennack, and Jennifer Elsea, The International Emergency Economic Powers Act: Origins, Evolution, and Use, Cong. Res. Serv., July 14, 2021, at 17.
[3] Id., at 18.
[4] Elena Chachko, Could the TikTok and WeChat Executive Orders Undermine IEEPA? LAWFARE (Aug. 8, 2020).
[5] See, Executive Order on Addressing the Threat Posed by Wechat, Exec. Order No. 13943, 85 FR 48641, (Aug. 6, 2020) [hereinafter, Wechat order]; Executive Order on Addressing the Threat Posed by Tiktok, Exec. Order No. 13942, 85 FR 48637 (Aug. 6, 2020)
[6] Id.
[7] Chachko, supra note 4.
[8] 50 U.S.C.S. § 1702 (b)(1).
[9] 50 U.S.C.S. § 1702 (b)(3).
[10] Robert Chesney, TikTok and the Law: A Primer (in case you need to explain things to your teenager), Lawfare (Aug. 2, 2020).