In the closing weeks of his administration, President Donald Trump just can’t get seem to get a win, even against his most infamous adversaries. The White House is seeking to overturn yet another losing court case in their fight against TikTok, the controversial short-form video app with data operations linked to the authoritarian Chinese state, according to The Verge.
In early December, US District Judge Carl Nichols issued a preliminary order which blocked the Commerce Department from issuing restrictions against TikTok, which would have prevented new downloads of the app in US app stores. The Nichols injunction echoes an October order from US District Judge Wendy Beetlestone of Pennsylvania, who filed an outright injunction against the ban. In response, the DOJ appealed the decision with the US Court of Appeals for the DC Circuit. And as it stands, this matter won’t be resolved by the end of Trump’s presidency, leaving another mess for the upcoming Biden administration, plagued with its own dubious China scandal, whose DOJ could simply abandon similar measures.
Although many recognize Trump’s fight with China, whether it’s from his mocking speeches, his use of the term “China virus” or his infamous trade war starting early in his term, the TikTok scandal remains elusive territory. As explained by The Verge’s senior reporter Adi Robertson, Trump’s obsession with TikTok dates back to August 6th, during a time when the president issued an order condemning the app’s real security concerns, such as TikTok collecting data on U.S. persons in the public and private sector, their proven information censorship both to the detriment of Beijing and beyond, as well as disinformation operations on the platform. At the same time, however, there are real concerns about the way Trump has gone about settling his grievances with TikTok.
At the time, the president invoked the International Emergency Economic Powers Act (IEEPA) against TikTok and WeChat, two China-based apps with millions of users around the world. Under this authority, the president is granted the ability to ban transactions between US and foreign entities. President Trump then issued another order on August 14th, demanding that TikTok’s parent company ByteDance sell or spin-off its TikTok business in the US within 90 days. Trump also threatened to use IEEPA powers last year when he demanded US companies leave China.
“The legal authority for these executive orders is incredibly broad,” argued Brian Fleming, a former counsel to the Assistant Attorney General for National Security. “It gives the president a lot of latitude to determine and declare national emergencies.”
This latitude would have taken effect on November 12th, effectively halting the app’s US operations until these concerns were addressed. On September 18th, the US Commerce Department issued yet another order to block downloads of the app in the US. This was quickly backtracked by the president himself, stating he approved “in concept” a bid from cloud computing giant Oracle to become TikTok’s “trusted tech partner,” establishing a deal that would create TikTok Global, a new company based in the US that would take over processing and storage for all US-based TikTok users. It seemed like the ban wasn’t so much concerned about national data control, but which nation in particular controlled that data, be it through their governmental or industrial institutions. For the courts, security concerns were on all sides.
“But then the Trump administration… kind of forgot about the whole thing,” Robertson writes, “TikTok filed a petition November 10th seeking a 30-day extension of the November 12th deadline, and the company said it had received ‘no substantive feedback’ from the Trump administration for some time. The administration gave an extension until November 27th, and again until December 4th. Then the government said it would not enforce its own deadline. What shape the appeal will take in the waning days of a lame-duck administration is still to be determined,” she concludes, “but a US ban on the app seeks less and less likely to happen.”
Nevertheless, the fate of TikTok will remain in the hands of Joe Biden. The president-elect will assume office on January 20th, 2021, leaving it unclear whether the app will be successfully sold in time for Trumpian celebrations. So far, Biden has remained silent on the scandal. And this doesn’t mean TikTok is unprepared. If you watch the Chinese state-media, they do cite credible legal technology experts such as lawyer Brian Sullivan who speculate the administration will “not interfere with business,” such as US commerce operations, though will focus their ire on the harvesting of user data, which could likely result in a Biden-led executive order overriding Trump’s broad attempts, which Sullivan deemed “unconstitutional and flawed.” And if any deal were to be made on TikTok’s sale, it would require the approval of both the US and Chinese governments.