Benjamin Fuller

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President Trump’s executive order banning the use of TikTok in the United States (U.S.) violates treaties the U.S. has within the World Trade Organization (WTO) and violates Bytedance’s Constitutional due process rights as a corporation. When comparing TikTok with other social media apps, there is not a huge difference in security issues, content manipulation, or what happens with users’ data. The fundamental difference is that TikTok is subject to Chinese government censorship, and a Chinese corporation owns TikTok. The Trump administration, therefore, treats a business differently mainly because the corporation is based in a different country. This Note addresses how the executive order is improper and investigate the possible avenues that TikTok might pursue to invalidate this former President’s ban.

President Trump, on August 6, 2020, issued an executive order banning all transactions on the Bytedance owned application TikTok.[1] President Trump’s reasoning for banning the TikTok app is the national security data risk involved with TikTok.[2] President Trump believes the Chinese government uses the app for data mining.[3] Since this order, Bytedance and the U.S. government have negotiated terms to address TikTok’s security risks to avoid this transactional ban.[4] Different American corporations have been discussing buying TikTok to address the security risk stated in the executive order.[5] In doing so, there has been questions to how much an American corporation needs to own TikTok for TikTok to become an “American” corporation and no longer a threat to national security.[6] Recently, a federal judge for the U.S. District Court of the District of Columbia issued a preliminary injunction blocking enforcement of the executive order.[7]

Part I addresses treaties the U.S. has within the WTO.[8] This Part l mainly examines multilateral treaties that bind parties, including the United States and other WTO members.[9] In addition, this Note compares relevant WTO Appellate Body reports that pose similar issues as the executive order.[10] Part II then examines American corporate law and the rights foreign corporations and foreign agents have in the U.S.[11] This Part focuses on agency law and discusses when a corporation constitutes an agent of a sovereign nation.[12] This Part concludes that TikTok is not an agent of the Chinese government, as stated in the executive order.[13] Part III discusses national security law and Trump’s legal authority to ban a foreign app on U.S. servers. After examining both case law and the statutes, the executive order is likely an appropriate use of the President’s authority.[14] However, Trump in attempting to address security issues of an online app, has arbitrarily treated a foreign corporation differently than U.S. corporations.

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[1] Exec. Order No. 13942, 85 Fed. Reg. 48637 (Aug. 6, 2020).

[2] Id.

[3] Id.

[4] David Shepardson, Alexandra Alper & Echo Wang, China’s ByteDance gets Trump Nod to Avoid TikTok Shutdown, REUTERS (Sept. 19, 2020), https://www.reuters.com/article/usa-china-tiktok/trump-gives-blessing-to-deal-to-allow-tiktok-to-continue-to-operate-in-us-idUSKCN26B01L.

[5] Id.

[6] Id.

[7] Bobby Allyn, U.S. Judge Halts Trump’s TikTok Ban, Hours Before it was Set to Start, NPR (Sep. 27, 2020) https://www.npr.org/2020/09/27/917452668/u-s-judge-halts-trumps-tiktok-ban-hours-before-it-was-set-to-start.

[8] General Agreement on Trade in Services art. XIV, Apr. 15, 1994 Marrakesh Agreement Establishing World Trade Organization, Annex 1b, 1869 U.N.T.S. 183; General Agreement on Trade in Services art. XVI, Apr. 15, 1994 Marrakesh Agreement Establishing World Trade Organization, Annex 1b, 1869 U.N.T.S. 183.

[9] Id.

[10] See e.g., Appellate Body Report, Unites States- Measures Affecting the Cross-border Supply of Gambling and Betting Services, WTO Doc. WT/DS285/AB/R (adopted Apr. 7, 2005) (providing a WTO case to compare with the executive order).

[11] GSS Group LTD v. National Port Authority, 680 F.3d 805, 812 (D.C. Cir. 2012).

[12] 28 U.S.C. § 1603(b).

[13] Exec. Order No. 13942, 85 Fed. Reg. 48637 (Aug. 6, 2020).

[14] The International Emergency Economic Powers Act: A Congressional Attempt to Control Presidential Emergency Power, 96 HARV. L. REV. 1102,1110 (1983).

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