- 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
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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
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and I'll see you in court.
lmaoooo best thumbnail ever
I love that his idea of a tiktok teen is a skateboard and backwards hat a la Steve buscemi