Chinese state media has responded to Donald Trump’s decision that he’s the president of TikTok now, accusing him of stealing. Reuters quoted the state-backed paper China Daily, in which the editorial board wrote that China won’t tolerate Donald Trump’s “bullying” and outright “theft” of TikTok, and that China had “plenty of ways to respond if the administration carries out its planned smash and grab.” Another state-backed paper, the Global Times, opined that “Washington ignores rules and is unreasonable” in its efforts to quash China-based companies, which it’s able to do thanks to “technological superiority” and influence with allies.
Trump has recently blustered about a “ban” on TikTok; on Monday, he switched tactics, threatening to force ByteDance to sell TikTok to a “very American” company (in this case, Microsoft) by September 15, or else. He then likened the United States to a fiefdom of vassal-companies who owe the Treasury a cut of every deal brokered on his soil.
“It’s like the landlord and the tenant,” he rambled in a press conference. “And, uh, without a lease, the tenant doesn’t have the value. We’re sort of in a certain way the lease.”
As TechCrunch reported, he also told reporters that the U.S. should be “reimbursed” for the deal, whatever that means. China Daily quoted U.S. sources likening that cut to mafioso-like extortion, as did the BBC.
According to CNN, the CEO of ByteDance, which owns TikTok, believes that Trump has no interest in a sale. In a memo to employees, Zhang Yiming reportedly said that it “feels like” the government is going for “a ban or even more,” due to the “current macro situation,” which presumably refers to Trump’s desire to appear dominant over China.
The legally dubious “ban” would likely involve more manoeuvring than Trump is admitting to. As Jeffrey Douglas, chairman emeritus of the nonprofit the First Amendment Lawyers Association, explained to Gizmodo, banning a communicative app would require “an extraordinarily high level of proof” since it appears to be a “prior restraint” under national security, a valid example of which would be preventing an outlet from publishing troop movements in war time. Even if they were able to prove such a breach, a requirement for prior restraint is that the government “imposes the least possible restrictive intrusion on the communicative activity” — which seems unlikely to extend to a nationwide ban.
Supposing the regime were able to meet such a burden of proof, though, how would a ban work? Are Americans ordered to delete TikTok from their phones? Are Apple and Google forced to remove it from their U.S. stores? Is there a firewall put in place, blocking access to TikTok within the country? Is TikTok ordered to delete all U.S. users’ accounts?
“A reviewing court would have to address each [scenario] separately, and the ‘administration’ would need to meet the prior restraint standards for each of your individual situations,” Douglas told Gizmodo. “Your questions demonstrate the enormity of difficulties for the administration to articulate an actual ban.”
Let’s say Trump attempts to ban TikTok from app stores. “Banning distributing the app in the app store would raise the First Amendment rights of the app stores to distribute software,” Kurt Opsahl, deputy executive director of the Electronic Frontier Foundation, told Gizmodo. App stores have a First Amendment right to distribute software, which courts have held is speech. Even if Apple and Google independently decided to remove the app, Opsahl pointed out, nearly 100 million people in the U.S. have already downloaded it.
“Of course, we may never get to a formal ban or divestment order,” Opsahl added, noting the potential Microsoft sale. But Opsahl noted that “TikTok is worth more” without pressure from the U.S. government.
A possible app store “ban” leads Alex “Jay” Balan, chief security researcher for leading cybersecurity company Bitdefender, to worry more about setting a precedent for arbitrary discrimination. He pointed out that it’s not unusual for apps to be removed or denied access to an app store, once cybersecurity companies agree, and/or Google and Apple find, that an app is unsafe. But typically, he said, Google and Apple provide transparent reasons for removal, namely, that it violates the terms of service or infringes on user privacy. “If there is a rule put in place for TikTok, will that apply to all the applications?” Balan asked. “You can not just ban TikTok because it’s from China or because somebody found a vulnerability, which supposedly they have fixed. Will other applications be blocked under the same criteria, or will new criteria appear? That’s a question I don’t have an answer to, but it’s definitely worth answering in this context.”
Updated: 8/4/2020, 11:43 a.m. ET: This post has been updated to include comment from Jay Balan.