UPDATE: In June 2021, U.S. President Biden rescinded former President Trump’s executive orders banning TikTok and WeChat.
U.S. President Trump has banned two apps affiliated with companies in China based on an emergency for which there is little public evidence. If Trump is willing to exercise his emergency power without evidence to ban apps, he may avail himself of a similar law that allows him to shut down the internet entirely. To #KeepItOn in the U.S., we must dismantle the president’s kill switch.
TikTok and WeChat executive orders
Earlier this month, Trump invoked his emergency powers to ban two apps with Chinese ties: TikTok (owned by ByteDance) and WeChat (owned by Tencent). The executive orders (EOs) claim a national emergency under the International Emergency Economic Powers Act (IEEPA) regarding foreign powers exploiting vulnerabilities in the information technology supply chain, and state the apps threaten national security, foreign policy, and the U.S. economy. With these emergency declarations, Trump has the power to take extraordinary action against foreign companies.
Trump’s EOs are light on evidence of harm and strong on rhetoric. The TikTok EO focuses on the following arguments: first, data collected by TikTok “threatens to allow” the Chinese government to access the personal information of U.S. citizens. However, TikTok has repeatedly stated publicly that its U.S. data are stored in the U.S. and Singapore, away from the Chinese government, a claim the Federal Trade Commission can likely enforce against the company if it is deceiving the public. TikTok also does not operate in China. There is inconsistency in this administration complaining about unfettered data collection on people in the U.S. when the U.S. itself lacks a comprehensive data protection law.
Second, the EO argues that TikTok reportedly censors content the Chinese Communist Party dislikes. Yet it is unclear how foreign government censorship would create an “emergency” in the U.S. Again, there is inconsistency in making this argument. The U.S. government itself has taken retaliatory action against Twitter, in an attempt to manipulate the platform, for fact-checking a Trump tweet.
We do not downplay the legitimate security, content governance, and privacy concerns associated with TikTok; there are problems that are being flagged that should be addressed and resolved. But as far as we can tell, there has been no independent government investigation nor official confirmation of the reporting that supposedly supports the EO. Banning apps based on conjecture and without strong evidence of harm can have severe negative implications for freedom of expression. As it stands, unless the president is appeased, the ban will take away a key social media platform for millions of Americans.
Emergency declarations to shut down the internet
The president’s willingness to flaunt his emergency powers could make it easier for him to shut down the internet. This security theater has serious consequences for the internet and human rights, and the statute granting this power should be repealed.
Under the broad and essentially limitless war powers statute, a president can shut down wired communications when “there exists a war or threat of war” involving the U.S., and wireless communications when “there exists war or a threat of war, or a state of public peril or disaster or other national emergency.” The president would be granted deference to decide what constitutes a threat of war or state of public peril. Thus, just as Trump declared a national emergency regarding TikTok and WeChat based on little evidence of harm, he could declare a similar emergency under the war powers statute to justify shutting down the internet entirely.
Internet shutdowns are an inherently blunt and disproportionate interference with the rights to free expression, access to information, and peaceful assembly. Given the internet is an essential tool for health, education, communication, and more, no country should tolerate them. Yet governments continue to order them, and the threat they pose is not hypothetical. Shutdowns have already taken place in the U.S., and as Access Now and the #KeepItOn coalition have documented, governments around the world are using them in attempts to control public discourse, often during protests and elections. That is why more than 220 organizations globally are pushing back, challenging shutdowns through legal, technical, advocacy, legislative, and policy channels.
It is not appropriate to continue granting any U.S. president the power to shut down the internet. The president’s actions banning TikTok and WeChat show how easily the war powers statute could be abused for political manipulation, and it is profoundly disturbing that this president appears willing to declare emergencies without strong evidence of harm. There is little to stop him from invoking these powers if, for instance, people protest over a disputed 2020 election, or he claims there was foreign interference in the election or a threat of war against the U.S. For these reasons, it is time to repeal the war powers statute.