US judges’ rulings to stop TikTok, WeChat bans show nat'l security claims have their limits

Jodi Xu Klein in New York, South China Morning Post

Posted at Oct 14 2020 01:03 PM

TikTok has been successful in fighting a US ban. Reuters

Recent US courts rulings that put the Trump administration’s TikTok and WeChat bans on hold were the first clear legal indications that Washington’s attempts to crack down on Chinese companies on the basis of national security have gone too far.

In the first major blow to the Trump administration in a long list of actions taken against Chinese firms, two federal judges shot down President Donald Trump’s claims that the apps threaten American security, saying there wasn’t enough evidence that the companies handed over user data to Beijing.

As the legal challenges continue, it will be difficult for the Trump administration – or potentially Joe Biden, if he wins the election – to kill the apps as the fight over them seems to be more political in nature, while concerns about Huawei Technologies and ZTE’s 5G infrastructure appear more legitimate.

Such companies are vulnerable because of Chinese laws that require private firms to assist in national intelligence and surveillance.

“It remains unclear what the US national security concerns over TikTok and WeChat are,” said Jennifer Daskal, a professor in the tech, law and security programme at American University Washington College of Law.

It feels like “they are merging more with general data privacy concerns” that are relevant not only to Chinese firms but to all tech companies including Facebook and Google, said Daskal.

ByteDance’s TikTok, used for posting short videos, and Tencent’s WeChat, a popular messaging app, are platforms on which users share information.

“That’s different from Huawei and ZTE, where the companies have access to a country’s infrastructure. In that situation, there are very significant surveillance concerns about them being able to access information up close anywhere across the networks,” Daskal said.

Protecting American national security, particularly against China, has become a particular priority in recent years.

Since the US-China tech rivalry began heating up, Washington has put more than 450 Chinese firms on a blacklist, blocked tens of billions of dollars in Chinese acquisitions, restricted exports of key technologies to

China and issued executive orders to eliminate Chinese companies in the US.

The measures were taken by agencies from the departments of Commerce, Defence, Homeland Security, Treasury and State, sometimes collectively, other times directly by Trump using his executive powers, all using the rationale of safeguarding national security.

Huawei and ZTE, China’s two leading 5G tech firms, were among the first to be added to the Commerce Department’s “entity list” to be banned from doing businesses in the US.

They were probably the most notable cases that many believed merited legitimate concerns. In June, the Federal Communications Commission (FCC), the telecommunications watchdog, officially designated both as national security threats.

While little evidence was provided, at least not publicly, of alleged “back doors” that can enable illicit data transfers to Beijing, a potential national security threat is acknowledged because the infrastructure access afforded Huawei and ZTE.

Huawei sued the US government in December 2019 after the FCC prohibited American carriers from using federal subsidies to purchase its equipment. The suit is still pending.

Huawei and ZTE have been designated national security threats by the US government. Reuters

Washington’s concerns about Huawei are also shared by other governments. Britain, Australia and Japan have also banned Huawei from their 5G infrastructure. Germany and France, earlier Huawei supporters, are now limiting the company’s participation in their networks.

Until recently, India was the only country to ban TikTok, a move primarily in response to its border battles with China. Pakistan banned the app a week ago, citing not national security but the “indecent content” on the service. No countries have banned WeChat.

“TikTok and WeChat just seem so fundamentally different [from Huawei and ZTE] and seem to raise such higher constitutional questions in the United States,” said David Gossett, a lawyer at Davis Wright Tremaine who focuses on technology, privacy and security.

Judge Carl Nichols in Washington and Judge Laurel Beeler in California both said the bans of privately owned apps likely violated the First Amendment free speech protections, a right the US has for long criticised China for.

Nichols, who was appointed by Trump in 2018, said that in TikTok’s case, the US government likely overstepped its authority by invoking the International Emergency Economic Powers Act, or IEEPA, a national emergency declaration triggered by extraordinary national security threats.

“It’s important to remember a Trump-appointed judge ruled in favour of TikTok after reviewing the secret evidence that the government offered,” said Anupam Chander, a law professor at Georgetown University.

“The national security interests have been overblown. It’s clear that the apps should not be banned,” Chander added.

The Trump administration appealed in both cases, and hearings are scheduled for early November.

“All of that should give pause to the Trump administration,” Chander said. “I am surprised they appealed. The chance that the US government loses the TikTok and WeChat cases was high. And if the government loses the cases, it will reduce executive power in future interpretations.”

Before TikTok and WeChat, policy watchers have questioned Trump’s handling of ZTE.

In 2018, it was barred from the US. Four months later, Trump lifted the ban in a compromise that he called “a personal favour” to his Chinese counterpart, Xi Jinping.

Trump’s back-pedalling discredited the national security argument and raised the question of whether the issue was negotiable.

In May 2019, the US demanded that China’s Beijing Kunlun to divest its majority stake in the gay dating app Grindr, citing concerns that sensitive personal information such as HIV status could be used by Beijing for blackmail.

Some policy watchers said then the forced sale could have been a possible overuse of national security and warned it could hurt foreign investment in the US.

To some, Grindr’s case, similar to TikTok and WeChat, was less of a national security question than a data privacy issue.

Said Daskal: “If that's where we are going with our understanding of national security, then the US needs to ask ‘Does national security effectively swallow everything?’”