Commerce Move on Foreign Apps Shows Biden Team Taking Aim at TikTok
TikTok argued during the Trump administration that the U.S. government’s emergency international economic powers are limited. Photo: Yui Mok/Zuma Press By John D. McKinnon June 16, 2023 2:24 pm ET WASHINGTON—President Biden’s Commerce Department published an online-security rule on Friday, aiming to strengthen its legal hand against foreign-based apps—including TikTok—that could threaten the U.S. The move comes as the U.S. continues to weigh what to do about the popular video-sharing app owned by Beijing-based ByteDance Ltd., as well as other Chinese-based apps. The administration likely still needs new legislation to further strengthen its legal position before taking any dramatic action against TikTok such as banning it in the U.S., and Congress has been at odds over the issue
TikTok argued during the Trump administration that the U.S. government’s emergency international economic powers are limited.
Photo: Yui Mok/Zuma Press
WASHINGTON—President Biden’s Commerce Department published an online-security rule on Friday, aiming to strengthen its legal hand against foreign-based apps—including TikTok—that could threaten the U.S.
The move comes as the U.S. continues to weigh what to do about the popular video-sharing app owned by Beijing-based ByteDance Ltd., as well as other Chinese-based apps.
The administration likely still needs new legislation to further strengthen its legal position before taking any dramatic action against TikTok such as banning it in the U.S., and Congress has been at odds over the issue thus far.
But Friday’s regulatory action shows that the Biden administration still has its eye on Chinese-based apps that could pose security risks, and could serve to rekindle efforts in Congress.
The final rule, which focuses on how to regulate foreign-based apps, provides additional criteria that the Commerce secretary may consider when determining whether technology transactions involving apps present “undue or unacceptable risks,” according to a summary published in Friday’s Federal Register.
For instance, instead of regulating entities that are “subject to coercion” by a foreign adversary, the new rule focuses on entities that are “subject to the jurisdiction or direction of a foreign adversary.”
The administration likely still needs legislation from Congress to further strengthen its position because a Trump administration effort to ban TikTok using the same regulatory power ran into successful legal challenges.
TikTok and its allies argued during the Trump administration that the U.S. government’s emergency international economic powers—which form the basis of its online-security rules—are sharply limited by a set of measures known as the Berman amendments.
Those amendments, dating to the last years of the Cold War, took away the president’s authority to regulate or ban imports of “informational materials” from adversarial nations.
TikTok and other social-media platforms weren’t around at the time, but the protections were later expanded to effectively extend First Amendment-type protections to foreign digital media. They were invoked by TikTok attorneys in their successful 2020 lawsuit to block then-President Trump’s attempt to ban downloads of the video app.
Friday’s action could renew interest in Congress in modifying the Berman amendments, or in establishing a new legal authority for the administration to take action.
Separately, the administration also has been weighing potential action under the rule against Kaspersky Lab, a Russian cybersecurity company that has long faced accusations of posing a threat to the U.S. Friday’s action could make it easier for the administration to move against Kaspersky, which could face a tougher legal road in invoking the Berman amendments to challenge regulatory action.
Write to John D. McKinnon at [email protected]
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