Is Time Running Out for Tik Tok?
Perhaps overlooked this week with the release of the National Cybersecurity Strategy, the Biden Administration also released new guidance from the Office of Management and Budget (OMB) for Federal agencies to help implement the aptly named No TikTok on Government Devices Act. This bill, originally sponsored by Sen. Josh Hawley (R-MO), was included in the consolidated appropriations law at the end of 2022 and seeks to…well…ensure there is no TikTok on government devices. This would apply to technology issued by the government to both federal employees and contractors. It’s a pretty benign law and the guidance is what you’d expect - timelines and reporting requirements and an exception process. Classic OMB.
More interesting developments in this area are discussions underway to ban TikTok on all privately owned technology devices throughout the United States. This and other efforts to curb China’s influence/power are gaining bipartisan traction in the new Congress. And there is already a bill seeking to accomplish an outright TikTok ban. S. 85 - the less well named No TikTok on United States Devices Act, which was introduced in January by Sen. Josh Hawley (R-MO).
A few thoughts about this bill:
Personally I think Sen. Hawley and his staff could have had a bit more fun with the name. (The Cancel TikTok Act anyone?)
The name isn’t the only problem with the bill. It relies on powers granted to the President in the International Emergency Economic Powers Act (IEEPA) of 1977, a law granting the President the power to unilaterally regulate international commerce in response to “extraordinary threats” to the United States. President Bush used the IEEPA after 9/11 to block the assets of terrorist organizations, which was eventually ruled unconstitutional after it was used to block the assets of charitable organizations in the U.S. without probable cause. #StrikeOne
The IEEPA was also used by President Trump in 2020 to try to remove TikTok from U.S. app stores. This attempt was blocked twice in federal courts as it likely violated IEEPA’s information materials exceptions. Specifically, IEEPA authorities do not include the ability to “regulate or prohibit, directly or indirectly - any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value;” #StrikeTwo
This doesn’t mean Congress won’t eventually pass a bill to ban TikTok - and perhaps even pass @S. 85. But passing one utilizing authorities that have twice failed to be upheld in federal courts doesn’t seem like the best strategy. It would likely end up as #StrikeThree.
