Trump’s Unprecedented Bans of TikTok, WeChat Apps Slammed as Violating First Amendment

Trump bans - TikTok WeChat
Associated Press

The Trump administration made good on its threat to block U.S. users from accessing TikTok and WeChat, announcing that American businesses will be banned from distributing either of the Chinese-owned apps effective Sunday.

Industry experts say the app ban is without precedent in the U.S., while free speech advocates said the bans on TikTok and WeChat abridge American citizens’ First Amendment rights — raising the prospect that the Trump action will face new legal challenges. With the move, the White House is attempting to set tech policy that is in unchartered waters.

The Trump administration has maintained that it’s worried the Chinese government will be able to access data on American users of the apps, a situation that it claims threatens national security.

But it’s unclear whether the office of the U.S. president has the authority impose such a sweeping prohibition on apps, said Theresa Payton, CEO of the cybersecurity consultancy Fortalice Solutions and former White House chief information officer. She said the U.S. government’s move to ban TikTok and WeChat is unprecedented.

“I couldn’t find any place where [a presidential] executive order compelled private-sector infrastructure companies to basically stop all access to an app,” she said.

The closest precedent was the Treasury Department-led Committee on Foreign Investment in the U.S.’s order last year forcing Chinese gaming firm Beijing Kunlun Tech Co. to sell gay dating app Grindr over similar data security concerns. But that didn’t culminate as a blanket prohibition on U.S. companies facilitating the distribution of the app. Grindr was sold in March 2020 to an entity called San Vicente Acquisition, a consortium of U.S.-based investors.

The Trump administration is trying to make “poster children” of TikTok and WeChat in the U.S.’s broader trade fight with China, said Ari Lightman, professor of digital media and marketing at Carnegie Mellon University. “It’s on the premise of national security. But it sets a bad precedent in terms of other countries [the administration] might argue are a threat,” he said.

“I have a hard time understanding whether this is all bluster,” said Lightman.

Adding to the confusion, the Commerce Department said Trump may lift the Sept. 20 download ban on TikTok if the proposal by parent ByteDance to transfer control of TikTok to Oracle and U.S.-based parties is approved. If TikTok doesn’t get a deal done by Nov. 12 that satisfies the U.S. government, according to the Commerce Department, the app will be fully disabled in the country.

The idea of the Trump administration orchestrating the transfer of assets of a private company like this — under the pressure of a 45-day deadline — is “problematic,” Lightman said. “The intent may be good — ‘Let’s protect our national interests’ — but the execution, in brokering a backroom deal, is the wrong step to take. That’s not the job of the government.” He also believes that an escalation of U.S. restrictions on Chinese tech firms will be to the detriment of American industry, walling it off from innovations like advanced artificial intelligence (a key factor in TikTok’s success).

With the Sept. 20 app bans just two days away, Apple’s App Store and Google Play may not be able to comply, Payton said. “When you do things in a hurry like this, you present potentially bigger security issues down the road,” she said. And the ban potentially extends beyond just the app stores: Does it mean search engines and wireless carriers, for example, have to block TikTok and WeChat as well? Would it apply to virtual private network (VPN) services, which can mask the location of the user?

“This really opens up a can of worms,” said Payton, who was the first woman to hold the position of White House CIO in President George W. Bush’s administration.

Meanwhile, the American Civil Liberties Union argued that the bans violate the First Amendment rights of people in the U.S. “by restricting their ability to communicate and conduct important transactions on the two social media platforms,” said Hina Shamsi, director of the ACLU’s National Security Project.

In addition, the order actually threatens the privacy and security of existing TikTok and WeChat users in the U.S. by blocking their ability to access software updates, which can fix vulnerabilities and make the apps more secure, Shamsi said. “In implementing President Trump’s abuse of emergency powers, [Commerce] Secretary [Wilbur] Ross is undermining our rights and our security,” she said in a statement. “To truly address privacy concerns raised by social media platforms, Congress should enact comprehensive surveillance reform and strong consumer data privacy legislation.”

Columbia University’s Knight First Amendment Institute executive director Jameel Jaffer also expressed alarm about the TikTok and WeChat bans. “The Commerce Department’s decision to bar transactions with TikTok and WeChat raises serious First Amendment concerns and should be scrutinized carefully by the courts,” Jaffer said.

The Supreme Court held 50 years ago that the First Amendment protects Americans’ right to access foreign media, Jaffer noted. While the privacy and security concerns with platforms like TikTok and WeChat are legitimate, “we should be wary of setting a precedent that would give this president, and every future one, broad power to interfere with Americans’ access to information and ideas from abroad,” he added.

Tencent-owned WeChat on Sunday will effectively be disabled for U.S. users by the Commerce Department order — unless there’s a court ruling that provides a reprieve. A federal judge in San Francisco set a hearing for 1:30 p.m. Saturday in a case brought by users of WeChat. The plaintiffs, who are not affiliated with the company, are seeking an order that would prevent the ban from going into effect.

At a conference in the WeChat case Friday, Serena Orloff, an attorney for the U.S. government, argued that the order does not violate the First Amendment because WeChat users can switch to apps such as Facebook’s Messenger or Line. “This is not a prior restraint on speech,” she said. “This is a limitation on one app.” Michael Bien, arguing for the plaintiffs, disputed that. “Our clients’ rights to use the app will end on Sunday,” he said. “That is a deprivation of their fundamental rights. It’s a prior restraint.” The parties are expected to flesh out their arguments in greater detail in motions on Friday afternoon.

On Aug. 24, TikTok filed a federal lawsuit seeking to block the Trump ban, alleging it violated TikTok’s constitutional right to due process. Moreover, Trump exceeded his authority because the executive order was not based on a “bona fide national emergency,” according to TikTok. Trump invoked national-security concerns as a “pretext for furthering the President’s broader campaign of anti-China rhetoric in the run-up to the U.S. election,” TikTok said in its complaint.

TikTok is much bigger in the U.S. than WeChat. For the week ended Aug. 15, TikTok had 52.1 million weekly active users in the U.S., according to analytics firm App Annie. By comparison, WeChat had 3.3 million monthly active users in August, per App Annie.

— Gene Maddaus contributed to this report.