TikTok And WeChat’s Legal Limbo To Stay Open For Business In The U.S.

Tik Tok and Wechat, Chinese social media apps, are at risk of being banned in just over a month from now. President Donald Trump’s executive orders would ban “transactions” between US entities and the Chinese companies ByteDance and Tencent (TikTok and WeChat respectively). The infamous apps face expulsion from the U.S. 

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What exactly will be banned is still undetermined. The rules don’t take effect for 45 days, and the order leaves “transactions” as a blank check, giving the Secretary of Commerce the full 45-day period to list specific prohibitions.

If Americans are banned from accessing certain content on ByteDance and Tencent, the unusual circumstance could raise First Amendment questions, like the legal argument that apps like TikTok are protected speech. 

The American Civil Liberties Union has already argued that free speech makes the order unconstitutional. “This is another abuse of emergency powers under the broad guise of national security,” said ACLU national security head Hina Shamsi. “It would violate the First Amendment rights of users in the United States by subjecting them to civil and possibly criminal penalties for communicating with family members, friends, or business contacts.”

An IEEPA exemption bars “direct or indirect” prohibition of any information from import or export. The category includes CD-ROMs, newswire services, and film. ByteDance and Tencent could claim their apps fall under this terminology. 

Courts would have to weigh First Amendment rights in the case against the evidence presented in court for a national security threat to be deemed valid. There is heavy deference to executive action when national security is invoked.

TikTok for now says the claim has “no adherence to the law,” and is planning to sue this week, arguing that it wasn’t given reasonable notice of the institution of the ban. Tencent also plans to file a legal challenge in court next week. One major concern for both companies is the risk of losing their key relationship with Apple in the U.S. On the other hand, if one of the companies closes a deal with an American company, there’s less reason to invite legal troubles.

As the order stands, how much will it affect American users? ByteDance already faces pressure to spin off TikTok from the Committee on Foreign Investment in the United States, while Microsoft and Twitter consider making deals with them. 

WeChat has a smaller American presence than TikTok, but many users specifically want to connect with family and friends in China, so splitting the markets would be more difficult. Apple and Google haven’t said whether they would remove WeChat or TikTok under the new orders.

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