By: Caroline Foster
TikTok came under fire recently for possible privacy violations of its users. TikTok, an app that allows users to post fifteen second musical-oriented videos, has erupted in popularity in the United States since its release date in 2018, the app becoming the first Chinese social media platform to gain popularity with users outside of China. In the first three months of 2020, the app was downloaded 315 million times, more quarterly downloads than any other app in history. In the United States alone, the app has been downloaded over 175 million times.
TikTok is owned by ByteDance, a Chinese company. Due to this Chinese ownership of the app, President Donald Trump issued an executive order on August 6, 2020, banning TikTok from operating in the United States after September 15, 2020, if ByteDance does not sell the app to a U.S. buyer.
On September 18, 2020, Trump announced that the app will no longer be downloadable from the app store as of September 20, 2020, at midnight—and by November 12, 2020, if there is no deal struck between a U.S buyer and TikTok that gets the U.S. government’s approval, the app will be banned from use in the United States. On September 19, 2020, Trump gave a deal between Oracle and TikTok his blessing, prompting the U.S. Department of Commerce to delay the prohibition of U.S. transactions with TikTok until September 27, 2020. Trump has been insinuating a ban of the app in the United States for a while, claiming he can do so under the International Emergency Economic Powers Act (“IEEPA”). The IEEPA allows the President to “regulate foreign economic transactions when the President declares a national emergency to deal with any unusual and extraordinary threat to the United States which has a foreign source.” The President has broad powers under the IEEPA to investigate, regulate, or block economic activities that involve foreign entities, the activities being any transaction involving foreign nationals, governments, or businesses that falls under U.S. jurisdiction.
According to the executive order, TikTok “automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories.” Trump claims that this data collection threatens to permit the Chinese Communist Party access to Americans’ personal and proprietary information which could lead to tracking government employees, blackmail, and corporate espionage. Several governmental agencies, including the Department of Homeland Security, Transportation Security Administration, and the United States Armed Forces, ban the use of TikTok on Federal Government phones, and India recently banned the use of TikTok in the country as well.
There is currently no actual proof that TikTok obtains this information from the users’ phones, but policymakers’ biggest worry is that ByteDance, under China’s national security laws, could be forced to give U.S. users’ TikTok data to the Chinese government. TikTok has said it stores U.S. user data on servers that are not subject to Chinese law, but since TikTok’s owner is a Chinese business, policymakers are unsure if China can access the user data. Further, there is speculation that because TikTok can see what videos Americans are watching and what topics are being searched on the app, the Chinese government could use this data to sway public opinion or censor topics shown to users. The U.S. government believes China poses a specific threat to the United States because of the clashes the countries have had in terms of technology (cyberspace and outer space) and territory, making the U.S. government concerned about the potential privacy breach of user information.
TikTok is suing the government for this executive order, claiming that the ban has the ability to “strip the rights” of the employees and creators associated with the app “without any evidence to justify such an extreme action.” TikTok has stated that it disagrees with the government in that TikTok is a national security threat, claiming that the company has taken measures to “protect the privacy and security of TikTok’s U.S. user data.” Further, TikTok claimed that the executive order “sets dangerous precedent” undermining “global businesses’ trust in the United States.”
Since the president has broad authority under the IEEPA to investigate, regulate, or block economic activities involving foreign entities if there is an extraordinary threat, the President does not seem to be usurping his executive order privileges. If ByteDance can access U.S. user data, that access could be severely harmful to the United States, allowing China to use this private user information to its advantage. Further, since several governmental agencies have already banned the use of TikTok from being downloaded on employee’s phones, there is actual fear that there is a substantial threat from this app. Tracking government employees, blackmail, and corporate espionage are extremely harmful to the United States as a whole, and even if there is no definitive proof that TikTok can access U.S. users’ information, the government should be allowed to take steps to be preventative before the threat does become a reality under the broad authority of the IEEPA. Further, since there is talk about U.S. companies trying to purchase TikTok to avoid the ban as a deal is currently in the works between TikTok and Oracle, TikTok’s lawsuit may become moot since no ban will occur. U.S. companies have an extended period to finalize a deal to purchase TikTok to avoid the ban, so it will be interesting to see if the lawsuit will continue.
Student Bio: Caroline Foster is a second-year law student at Suffolk University Law School. She currently serves as a staff member on the Journal of High Technology Law. Caroline received her Bachelor of the Arts from Bucknell University, double majoring in English Literature and Philosophy.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
