Can the President Ban TikTok? | LegalEagle’s Real Law Review

Video Statistics and Information

Video
Captions Word Cloud
Reddit Comments

lmaoooo best thumbnail ever

👍︎︎ 3 👤︎︎ u/Gr00vyRedPanda 📅︎︎ Aug 12 2020 🗫︎ replies

I love that his idea of a tiktok teen is a skateboard and backwards hat a la Steve buscemi

👍︎︎ 1 👤︎︎ u/glimmeronfire 📅︎︎ Aug 21 2020 🗫︎ replies
Captions
- Thanks to CuriosityStream for keeping LegalEagle in the air. Get 26% off CuriosityStream and Nebula using the link in the description. Last week, President Trump issued two executive orders that will ban two major Chinese apps from the American market. The orders state that, in 45 days, Americans will be prohibited from carrying out any transactions with TikTok and its parent company and from the app, WeChat. This means US companies and individuals will no longer be permitted to advertise with the platforms, offer them for download via app stores, or enter into licensing agreements with them. This would effectively stop Americans from accessing TikTok and WeChat. The Trump orders came as a shock to US consumers, who are generally accustomed to being able to use any app that's offered on the app stores run by Apple or Google. And complicating this narrative, President Trump has not always remained on topic when discussing the reason for these bans, which ostensibly is national security. President Trump also raised eyebrows by suggesting that if Microsoft were to purchase TikTok, thereby saving it from the ban, they ought to pay the US Treasury some kind of fee. - Because I guess it's China, essentially, but more than anything else, I said a very substantial portion of that price is gonna have to come into the Treasury of the United States because we're making it possible for this deal to happen. - Wait. What? Can the president ban a Chinese company through executive order? Can the president demand a cut of the proceeds of that sale? And what's going to happen to your second favorite video sharing platform? (dramatic music) Hey, Legal Eagles, it's time to think like a lawyer because the president wants to ban TikTok, WeChat, and Tencent and sell them to Microsoft and get a cut of the sale like a two-bit gangster. 2020 is really weird. So let's first start off by talking about what is TikTok and WeChat. Now full disclosure, I'm not on TikTok at the moment. I tried to use it once, but I found it baffling and horrifying so I'm obviously the best person to explain what TikTok is, which I'm now going to do. So TikTok is a social media app owned by ByteDance, a tech company based in Beijing. ByteDance runs a content platform in China and other areas of the world known as Toutiao, which I'm probably incredibly mispronouncing, which translates to Headlines. Originally, Headlines was a news recommendation engine, and now it has evolved into a content delivery platform reminiscent of Facebook. ByteDance started TikTok in 2017 when it purchased and repurposed social media startup, Musical.ly and the two video sharing platforms merged into a global application that has gained popularity, particularly among teenagers who seemed to ditch social media platforms just as fast as adults figure out what to do with them. Now I asked you on Twitter, what TikTok was and your answers were both illuminating and hilarious. Joe Vincent said, "A way of communicating through shared cultural metaphors." Filip Gunnarsson said, "The sound of clock makes." A lot of you said it was just Vine or Vine 2.0, which, you know, I get that reference. Eric Garland said, "It's like Vine, except instead of just sending movies, it also sends your keystrokes on other apps to the same regime committing economic espionage every single day." Bushra said, "A song by Kesha." And some weirdo named Hank Green: A Beautifully Foolish Endeavor is Out! says, "It's a creation engine, providing all the tools, inspiration, and gratification necessary all in the same place." Now, as you probably know, TikTok's popularity surged during the pandemic. The app was downloaded over 623 million times during the first six months of 2020, and its biggest markets were India, Brazil, and the United States, although it has received a lot of scrutiny in India. Which takes us to WeChat, another one of the companies that's facing the executive orders. WeChat is the most used messaging system in the world, with more than a billion users. The app is owned by the Chinese company, Tencent, which is a major player in the US video games industry. In China, almost 99% of smartphone users use the app. WeChat is integrated with just about every aspect of a person's life, from paying for dinner, applying for a loan, watching a video, to ordering a rideshare. Chinese users can do all of that without ever exiting the WeChat app. And people in the US and other countries also use WeChat to keep in touch with friends and family in China. But WeChat has been linked with Chinese state surveillance and censorship, and odds are that if you send a message to someone using WeChat in China that's critical of the Chinese government, then WeChat will block that. Which takes us to the social data mining aspects of both TikTok and WeChat. TikTok videos are obviously fun, if inane, but there's also a dark side to TikTok as well and the answer lies in the app's ability to collect information about its users. When you download TikTok, you agree to its data collection policies. In addition to information you choose to provide, like your identity and billing info, the app automatically collects other data. For example, if you choose to sign up with your social media, Instagram, Facebook, Twitter, or Google accounts, TikTok reserves the right to harvest information from those services, including your contact list for these services and information relating to your use of the platform in relation to those services. And then TikTok also collects information about you from third party services like advertising partners. And then there are provisions like these, quote, "Other Users of the Platform. Sometimes other users of the Platform may provide us information about you, including through customer service inquiries. Other Sources. We may collect information about you from other publicly available sources." And when it comes to TikTok and WeChat, the US and other nations are concerned about the company's relationship with the Chinese government and what information TikTok may share. Although the United States and other countries trade with China and corporations do big business in the country, the Chinese government is still commanded by the Chinese Communist Party and it's not a free society. Chinese citizens don't have freedom of speech and the government controls the flow of information. China's 2017 National Intelligence Law requires Chinese citizens to support the government's national security activities, including possibly aiding the country in seeking intelligence from foreign countries and their citizens. TikTok's parent company, ByteDance, has worked with the Chinese Communist Party to censor and surveil content that the government did not want widely known. For example, the government crackdown on any mention of China's repression of the Uyghurs, a Turkic-speaking ethnic minority living mostly in Xinjiang, which I'm probably mispronouncing. The Uyghurs are Muslims from central Asia who are supposed to have significant autonomy in the Xinjiang Province. However, the Chinese government is arbitrarily arresting and imprisoning Uyghurs, censoring their language, and even erasing social media posts that mention the Uyghurs by name. (speaking in foreign language) - And ByteDance has helped the government censor information about the Uyghurs in its Headlines platform and on TikTok. Users have reported being fed nothing but propaganda when attempting to outwit the app's algorithm about the subject. And naturally, this led to concerns the company would be willing to share data about its foreign users with the Chinese government. The US Army and Navy banned service members from downloading the app to government-issued phones. The US House of Representatives voted to bar the use of TikTok on all government-issued phones. And this isn't necessarily a politically partisan issue. The House vote was 336 in favor to just 71 opposed. And Chuck Schumer tweeted his general agreement with President Trump that TikTok may hand over data to the Chinese government. And Secretary of State Mike Pompeo said- - We've urged countries to become clean countries so that their citizens' private information doesn't end up in the hands of the Chinese Communist Party. - And that the app created an opportunity for the Chinese government to spy on foreign nationals. Though just because the app has banned on government phones isn't really dispositive of the issue. Service members are also prohibited from using Fitbits after fitness data was used to identify different military installations because of the GPS tracking. But TikTok and ByteDance have repeatedly denied ever giving user data to the Chinese Communist Party. The company claims that all of its US data is stored in data centers in Singapore, not under the control of Chinese law. And Kevin Mayer, CEO of TikTok America, also posted a statement promising to make its data collection process transparent. TikTok also said that the company has tried to engage with the US government for over a year, but that the government paid no attention to facts. Although ByteDance has started talks with Microsoft about simply selling its US platform to a tech giant, the company also vowed to challenge the executive orders in the courts. And we'll get to the executive orders in just a moment, but it's probably worthwhile to point out that there may be significant First Amendment issues here too because it's a widely known secret that President Trump really hates both TikTok and the content that's on TikTok. TikTok is a bastion of satire of President Trump. People like Sarah Cooper, who ridiculed President Trump by simply repeating what he has said verbatim. - You know, TikTok, we may be banning TikTok. We may be doing some other things. There are a couple of options. - And let's not forget about all the K-pop stans on TikTok who signed up for President Trump's Tulsa rally. - I got two tickets, but I totally forgot that I have to pick every individual piece of lint off of my room floor. - And made it appear that hundreds of thousands of people were going to show up to the rally when, really, only a handful of people did, which may have led to the ouster of Trump's campaign manager, Brad Parscale. So it's an open question as to whether First Amendment speech concerns are one of the reasons why President Trump wants to ban these particular apps. And certainly, eyebrows are raised when the President bans particular companies as opposed to the practice of data sharing that is the thing that is ostensibly objectionable here. But let's talk about the executive orders that are at issue here that effectively ban TikTok, Tencent, and WeChat. President Trump's executive orders effectively ban the use of these apps in the United States. And to do so, these executive orders invoke the authority under the International Emergency Economic Powers Act, or IEEPA, and state that additional steps must be taken to deal with the, quote, "national emergency" posed by these apps. Traditionally, when presidents used the IEEPA Act for national security purposes, they rely on traditional issues of national security, such as access to classified information on weapons or intelligence systems. But President Trump's orders differ in that they're primarily targeting companies because of data security and data privacy policies. So what do these executive orders say? Well let's start with the TikTok order, which states quote, "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. The data collection threatens to allow the Chinese Communist Party access to Americans' personal and proprietary information, potentially allowing China to track the locations of federal employees and contractors, build dossiers of personal information for blackmail and conduct corporate espionage." As evidenced, the TikTok order says the company censors content in line with Chinese Communist Party guidelines. The order also says the app could be used for disinformation campaigns that benefit the Chinese Communist Party. The order says that, quote, "any transaction by any person with ByteDance or its subsidiaries, TikTok, will be prohibited in 45 days." And this probably means Apple and Google will no longer be able to list the app in their respective app stores. Which takes us to the other executive order regarding WeChat. President Trump's order on WeChat cited concern that the app could be used to spy on Chinese nationalists who visit or immigrate to the United States. The executive order states that the app allows, quote, the Chinese Communist Party a mechanism for keeping tabs on Chinese citizens who may be enjoying the benefits of a free society for the first time in their lives." The order also hits WeChat for censoring the same kind of content as TikTok. Now the Chinese company, Tencent, owns WeChat, but unlike the executive order on TikTok, which extends to the parent company, ByteDance, the order appears not to apply to subsidiaries of Tencent. A White House official told the "Los Angeles Times" that the band does not apply to Tencent's subsidiaries like Riot Games, which is the developer of the League of Legends game, which is very popular on the internet. And Tencent also has a big stake in Epic Games, which makes Fortnite, and the government is clarifying that those holdings are not affected by this ban. But needless to say, if this order extends to Tencent, then it would be a major disruption for the video game industry, but for now, that crisis appears to have been averted. But if you came here for the video games, I'd highly recommend checking out Richard Hoeg's channel, who goes into depth about these executive orders and their effect on the video game industry. I'll put a link to that down in the description. But here, both orders lack specific details. Both delegate authority to the commerce secretary to specify precisely what transactions are banned and which might still be allowed. This means that we have to wait and see what else the government says about the orders in the coming weeks. So the orders may be broader or narrower than we think they are at the moment. That'll have to be clarified. But let's talk about the president's authority to ban TikTok and WeChat. TikTok teens are pretty upset about the government's potentially taking away a platform that they love. So the question is, does the government have the authority to do so? Well, the answer is, generally, yes. And the discussion of those powers starts with the IEEPA. President Trump used his powers under the International Emergency Economic Power Act to stop TikTok inside the US. Now the IEEPA was passed in 1977 actually to restrict the president's powers to declare an indefinite emergency during peacetime. But as with a lot of legislation that was intended to be a restriction, it can sometimes be flipped on its head and allow the executive broad powers. The law here allows a president to take extraordinary action without consent of Congress, but it requires the president to declare a national security emergency under the National Emergencies Act. And the IEEPA allows the president to declare a national emergency to, quote, "deal with any unusual or extraordinary threat, which has its source outside of the United States to the national security, foreign policy, or economy of the United States." Now those are obviously extremely broad powers that give the president discretion to investigate, block, regulate, compel, or prohibit the importation, transfer, or acquisition of property in which any foreign country or national thereof has any interest." The IEEPA's powers allow the president to act with respect to any person, quote, "subject to the jurisdiction of the United States." And to exercise these broad powers, the president merely has to make an initial declaration of a national security and justify that declaration to Congress. And theoretically, initially, the president had an ongoing responsibility to consult with Congress, at least once every six months, in order to continue the national emergency. And the IEEPA originally gave Congress the power to stop the president from using these powers if, through a concurrent resolution, Congress declares that the emergency is over. However, the 11th Circuit Court of Appeals held that this provision was unconstitutional. Now, if Congress wants to terminate the president's authority under an IEEPA decision, legal experts presume that it would require passing a veto-proof joint resolution terminating the national emergency, and no such resolution has ever passed Congress. And here, the executive orders rely on a national emergency declaration made over a year ago in May of 2019, specifically Executive Order 13873. That emergency declaration emphasized the threat associated with foreign owned communication and information technology companies and services operating in the United States in circumstances where the foreign company is subject to the authority of a, quote, "foreign adversary." So in terms of whether it's legal, the answer is, probably, yes. As we've seen in a number of different circumstances, what we have is broad delegated powers from Congress, arguably intended for situations other than what they're being used for here, but Congress hasn't revoked that power. And when the executive has broad authority, as it does here, it's apt to use that broad authority. Congress has the ability to revoke that authorization, but number one, it doesn't appear that Congress has the appetite to do so, and number two, it would need to pass legislation that would withstand a presidential veto, which would be a very tall order. So you can see that Congress delegated wide latitude to the president to set policy using the powers delegated in IEEPA. And while Congress granted sweeping powers to the president, at least Congress did put some limits on those powers. So let's talk about some of those exceptions. There are exceptions to IEEPA that might apply to the president's executive orders. IEEPA is located at 50 USC Section 1702, and Subsection B of 1702 states exceptions to the grant of authority. And specifically it says that the authority granted to the president by this section does not include the authority to regulate or prohibit directly or indirectly, one, any postal, telegraphic, telephonic, or other personal communication, which does not involve the transfer of anything of value. And then there's Subsection 3 that creates an exception for the importation, from any country or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, other forms of media ending with a list that ends with newswire feeds. So obviously, TikTok is going to argue that these exceptions are directly on point and prohibit the president from banning their company and their practices. In the first instance, the first subsection deals with personal communications, which TikTok is nothing if not a way for people to deliver personal communications in the form of short videos to individuals and groups. And then the third subsection deals with information transmission, the newswires and informational materials. This may apply to the platform itself, but it also may apply to the practices of TikTok of taking the information of its users and customers and transmitting it to, potentially, other places. So it's possible that these exceptions may apply. And if I were TikTok, I would go before the courts and I would seek a temporary restraining order and, eventually, a permanent injunction preventing the president's executive orders from going into effect. So now the question is, can TikTok do anything to stop these orders? Does TikTok have any power to ask for judicial review of the president's decision? And the answer there is yes. The president's declarations under IEEPA are not specifically exempt from judicial review. But keep in mind that the IEEPA relates to foreign affairs, and this is an area where the president has greater discretion to act without Congress. The president's authority over foreign affairs is rooted in Article II of the Constitution, which gives the president the ability to make treaties and appoint ambassadors. Other clauses also make the president the commander in chief of the Army and Navy, with a whole host of implied powers, like the authority to recognize foreign governments and conduct diplomacy with other countries. And as commander in chief, the president has many powers involving the collection of foreign intelligence and use of military power. It would definitely not be an easy case to win. The Supreme Court has held that IEEPA, read in conjunction with the Trading with the Enemy Act, or TWEA, gives the president wide discretion to impose embargoes on products from foreign countries. The Supreme Court determined that the IEEPA was lawfully employed to impose restrictions on travel into and trading with Cuba. Lower federal courts have also upheld the IEEPA against First Amendment free speech and Fifth Amendment due process challenges. And it, in fact, appears that TikTok is filing suit. NPR is reporting that TikTok is filing suit against the Trump administration, arguing that the US government conducted no investigation into the company before levying this ban, and which would presumably constitute some sort of due process violation because they were not given any kind of rights before their company was effectively banned by executive fiat. And TikTok is arguing that it's being singled out, which seems probably reasonable under the circumstances. It seems that TikTok and WeChat are directly being singled out as opposed to other potential companies who are conducting similar information-gathering practices. And I'm sure that they're going to argue that the exceptions to IEEPA apply and that they fall under the exceptions, and thus, the president doesn't even have the power to issue the executive orders which purport to ban TikTok. As that lawsuit is filed and litigated, we'll see how that turns out. TikTok's best shot at overturning the decision might be challenging it as an attack on the First Amendment right of freedom of speech. Now the complicating factor is that the government has gotten way more leeway to restrict speech since Congress enacted the US Patriot Act after September 11th. And many lawsuits involving the IEEPA and the Trading with the Enemy Act are also in context with groups associated with funding terrorism. And if TikTok makes a First Amendment case, it would need to claim that the executive order is not content neutral; in other words, that the company would need to claim that, in order to explicitly discriminate only against certain types of speech or certain speakers. But even that would be an incredibly uphill battle because the government would just point to data collection practices and sharing practices, which are likely to be content neutral in the sense that all of the data is either shared or has the possibility of being shared with the Chinese government. And the US government would claim that that gives it a basis to restrict the apps and that it's not related to perceived anti-Trump bias that is contained in the platforms. So while there are challenges available, it seems like the Trump administration has the ability to ban these apps. So the question is, would a sale of these apps save them and allow them to continue to operate? Before these executive orders were handed down, Microsoft indicated that it would be interested in acquiring aspects of TikTok's operations and allow the app to still be available to American users. But it isn't clear whether this deal could even work at the moment. Microsoft would only be able to buy a regional portion of the company, that part which operates in the United States. And the orders would seem to prohibit Microsoft's TikTok from having ongoing legal relationships with TikTok operations still owned by ByteDance operating in other countries. It could also impact licensing deals for people who make money on TikTok, who assume that their content is going to be available on the other platforms that are owned by ByteDance. And the 45-day timeframe here is very short. If WeChat or TikTok were to be saved by a sale, the transactions would be very complex. Deals like that will be done within six weeks, although the commerce secretary presumably could extend that deadline. And here, it looks like TikTok will probably be sold. It's an external subsidiary, so the American operations are fairly bifurcated from those operations in China and the rest of the world. So it's possible to separate it and sell it cleanly to an American company. But WeChat and Tencent are different. Those companies primarily operate in China and there doesn't appear to be any clear way to separate their US operations from the Chinese operations. And in addition, even if these companies are sold to American companies and continue to operate, we should all be worried about retaliation by the Chinese government and Chinese companies. China has a much longer history of nationalizing companies than the US does and it's entirely possible that China is not going to take this sitting down. It's possible that China may force American companies operating in China to divest from their holdings in China and sell those holdings to a Chinese company. It's possible, as some have speculated, that China might retaliate by forcing Apple to give up all of its manufacturing arms in China and sell them to a Chinese company. We don't know what the unintended consequences of these actions are going to be. And perhaps the strangest legal question raised by all of these different issues is whether President Trump can demand what is effectively a VIG. What about President Trump's suggestion that some portion of a sale could be given to the US Treasury? - Really the Treasury, I guess you would say, of the United States gets a lot of money. - Yeah, here it appears that President Trump was just spitballing like a mob boss, asking for a VIG from a local mom and pop bodega. There doesn't appear to be any law that would allow the government to take a percentage of the funds from the sale of TikTok, you know, other than, you know, taxes. That give me a cut mentality of a sale is literally the kind of thing that can get a politician in trouble for commercial bribery. And that's actually what happened to Illinois Governor Rod Blagojevich, who President Trump pardoned earlier this year. Now granted, that was in the context of personal gain for the governor, not funds going to the Treasury, but also, any kinds of funds as a sort of key man cut from the sale would be so small in the context of the American government that one wonders why you would even bother with such a thing. But since there's no evidence or legal ability for the president to take a percentage of any sale for himself or the Treasury, that's probably not something that we have to worry about for now. For now. But I have a lot more to say about the executive orders, what's going to happen to TikTok and the suspiciousness of the timing of this ban, but it's probably not safe for YouTube. And I can't put them on TikTok because they're longer than 15 seconds, and also, TikTok might not exist in a few days, which is why I put my extended discussion on Nebula. Whether it's the government shutting down your favorite meme factory or YouTube's algorithm being capricious, it's hard being a creator when you don't control the platform, which is why my creator friends and I teamed up to build our own platform where creators don't need to worry about demonetization or the dreaded algorithm. It's called Nebula, and we're thrilled to be partnering with CuriosityStream. And President Trump isn't shutting us down, yet. Nebula is a place where creators can do what they do best, create. It's a place where we can both house our content ad-free and also experiment with original content and new series that probably wouldn't work on YouTube. In fact, if you liked this episode, the version that I put up on Nebula removes this ad entirely and replaces it with an extended discussion of President Trump's war against TikTok. (screen beeps) This is not something that started with the Trump administration. This goes back before Obama, back before W. Bush, before Bush Sr., before Reagan. And actually, now due to popular demand, almost all the videos that I put up on Nebula are both ad-free and have an extended discussion. Nebula features lots of YouTube's top educational-ish creators, like our newest additions, Adam Neely, Charles Cornell, and Mary Spender. We're basically monopolizing music YouTube. Also, we get to collaborate in ways that wouldn't work on YouTube, like Tom Scott's amazing game show, "Money," where he pits a bunch of famous YouTubers against each other in psychological experiments where they can work together or profit individually. It's so good. And I'm working on an original right now where I explain lots of misunderstandings about the law called "Bad Law Words Good." We'll learn important legal concepts like force majeure, race ipsa loquitur, and why hot dogs are sandwiches. It'll be out really soon. So what does this have to do with CuriosityStream? Well as the go-to source for the best documentaries on the internet, they love educational content and creators. And we worked out a deal where, if you sign up for CuriosityStream with the link in the description, not only will you get CuriosityStream, but you'll also get a Nebula subscription for free. And to be clear, that Nebula subscription is not a trial. It's free for as long as you're a CuriosityStream member. And for limited time, CuriosityStream is offering 26% off all of their annual plans. And 26% off is, by contract, the best deal you will find anywhere. You're welcome. That's less than $15 a year for both CuriosityStream and Nebula. And since we've got to stay inside, we might as well be soothed by the voice of David Attenborough or join Chris Hadfield on a road trip through the universe, or just watch Tom Scott torture your favorite YouTubers. So if you click on the link in the description, you'll get both CuriosityStream and Nebula for 26% off, or you can go to curiositystream.com/legaleagle. It's a great way to support the channel and educational content directly for just 14.79 per year. So just click on the link in the description or go to curiositystream.com/legaleagle. And of course, clicking on that link really helps out this channel. So what do you think about the executive orders? Are they motivated by national security or political animus? Leave your objections in the comments and check out this playlist over here with all of my other Real Law reviews, including COVID legal issues and all of the insanity coming out of the Trump administration. So click on this video and I'll see you in court.
Info
Channel: LegalEagle
Views: 466,012
Rating: 4.9027348 out of 5
Keywords: Legaleagle, legal eagle, breaking news, case, congress, court case, crime, guilty, jury, latest news, news, not guilty, political, politics, politics news, scotus, supreme court, the trial, trial, Verdict, copyright, law advice, legal analysis, lawyer, attorney, Real lawyer, Real law review, tiktok, tik tok, tiktok ban, IEEPA, compilation, tiktok lawsuit, executive order
Id: BnjhHPU-uRw
Channel Id: undefined
Length: 27min 13sec (1633 seconds)
Published: Tue Aug 11 2020
Related Videos
Note
Please note that this website is currently a work in progress! Lots of interesting data and statistics to come.