Last summer, former President Trump cast TikTok as the mascot for the US’s growing concerns over China when he signed a series of executive orders to erase the popular short video platform off app stores. It set off a wave of lawsuits keeping the orders from going into effect but left the door open for a future administration to take more serious action.
That’s what President Joe Biden did Wednesday when he signed his own order revoking these Trump-era bans and beginning the process to set new rules for software tied to the Chinese government. Biden’s order laid out a fresh framework for identifying the actual national security risks posed by these apps — a stark contrast with the chaos spurred on by Trump’s individual bans.
WHAT IT MEANS
Over the last few days, the Biden administration has ramped up on action against China. The White House is sensitive about appearing soft on China policy compared Trump, and action against the US adversary has broadly seen bipartisan support.
But in some ways, the Biden order could pose a more significant threat to TikTok and other apps with purported ties to the Chinese government. In contrast with Trump’s sweeping bans, the Biden order creates a system for evaluating a slew of foreign-owned apps and recommending more intensive action. The Trump-era bans haven’t held up because of ongoing court challenges, but this new process 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 clever solution that they believe is more defensible in court,” Jason Waite, leader of Alston and Bird’s International Trade and Regulatory Group said. “It still allows them to take the action, the ultimate action, if they want to.”
The Biden order doesn’t address actions or investigations going on at the Committee on Foreign Investment in the United States, or CFIUS. Trump’s bans kicked off a bidding war last year between huge tech companies like Microsoft and Oracle to take over Bytedance’s (TikTok’s owner) stake in the company and keep the app live in the US. A new system at the Commerce Department could incentivize CFIUS and Bytedance to reach a divestiture agreement faster before the government comes to 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 preserves or restores it because the other orders had been running into trouble in the courts.”
All eyes will be on the Commerce Department in the coming months — but Commerce Secretary Gina Raimondo has largely avoided commenting on what she could do about TikTok. In April, Raimondo said that she would take aggressive action against China but did not directly address specific companies like TikTok and WeChat.