How Joe Biden’s Order Could Be Bad News for TikTok

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Last summer, former President Trump cast TikTok as the mascot for growing US concerns about China when he signed a series of executive orders to erase the popular short video platform from app stores. It sparked a spate of lawsuits that prevented the orders from going into effect, but left the door open for a future government to take more serious action.

That’s what President Joe Biden did on Wednesday as he signed his own order to revoke these Trump-era bans and began the process of enacting new rules for software tied to the Chinese government. Biden’s order established a new framework for identifying the true national security risks of these apps — a stark contrast to the chaos caused by Trump’s individual bans.

WHAT IT MEANS

In recent days, the Biden administration has stepped up action against China. The White House is sensitive to the fact that it seems soft on Chinese policy compared to Trump, and action against the US adversary has gained widespread bipartisan support.

But in some ways, the Biden order could pose a greater threat to TikTok and other apps with alleged ties to the Chinese government. Unlike Trump’s sweeping bans, the Biden injunction creates a system for evaluating a slew of foreign-owned apps and recommending intensified action. The Trump-era bans have not held up due to ongoing judicial challenges, but this new trial could provide new evidence to make it easier for future bans to take effect.

“This is the White House trying to come up with a smart solution that they believe is more justifiable in court,” said Jason Waite, leader of Alston and Bird’s International Trade and Regulatory Group. “It still allows them to take the action, the ultimate action, if they want to.”

The Biden Order does not address any actions or investigations pending at the United States Committee on Foreign Investment or CFIUS. Trump’s bans sparked a bidding war last year between major tech companies like Microsoft and Oracle to buy Bytedance (the owner of TikTok) in the company and keep the app live in the US. A new system at the Department of Commerce could incentivize CFIUS and Bytedance to reach a divestiture deal more quickly before the government reaches its own conclusions.

“The [Trump] TikTok and WeChat orders served as leverage to get them to complete the CFIUS review,” Waite said. “In some ways, this maintains that leverage and you could argue that it keeps or restores it because the other orders in the courts had run into trouble.” .”

All eyes will be on the Commerce Department in the coming months, but Commerce Secretary Gina Raimondo has largely avoided commenting on what she might do about TikTok. In April Raimondo said she would take aggressive action against China but did not directly target specific companies such as TikTok and WeChat.