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Biden revokes Trumps TikTok, WeChat ban order, but White House to subject apps to a security review

Biden revokes Trumps TikTok, WeChat ban order, but White House to subject apps to a security review

THURSDAY, June 10, 2021

WASHINGTON - President Joe Biden on Wednesday revoked Trump administration executive orders that sought to ban TikTok, WeChat and other Chinese-owned apps and replaced them with a new security review that could prompt fresh steps to restrict those or other apps.

Biden's new executive order would create a process to scrutinize whether apps controlled by a foreign adversary present risks to U.S. national security and the security of Americans' sensitive personal data, the White House said.

After the government reviews each particular app, it can "take action, as appropriate," the administration said in a fact sheet.

Senior administration officials said they remain concerned about the risks posed by apps owned by Chinese companies but wanted to establish a more "robust" process for reviewing them. They noted that the Trump administration's ban orders had faced several court challenges that led judges to temporarily block the bans while the cases proceeded.

Asked whether the Biden administration still intends to ban TikTok or WeChat, one senior administration official said: "All the mobile apps named in the revoked executive orders are eligible for evaluation under the process we've outlined."

"The administration is extremely committed to ensure protection of Americans' data from foreign at-risk apps across the board . . . including large and popular apps. I think there are a wide range of actions that can be negotiated or imposed to ensure Americans' data can be comprehensively protected," another senior administration official told reporters Wednesday. Both officials spoke on the condition of anonymity to preview the new executive order.

"The Biden administration is committed to promoting an open, interoperable, reliable and secure Internet; protecting human rights online and offline; and supporting a vibrant, global digital economy," the administration said in a fact sheet. "Certain countries, including the People's Republic of China (PRC), do not share these values and seek to leverage digital technologies and Americans' data in ways that present unacceptable national security risks while advancing authoritarian controls and interests."

TikTok's corporate owner, ByteDance, declined to comment Wednesday. Tencent, which owns WeChat, didn't immediately respond to a request for comment.

In a statement, the American Civil Liberties Union warned the Biden administration against actions that would infringe on the First Amendment rights of TikTok and WeChat users. "President Biden is right to revoke these Trump administration executive orders, which blatantly violated the First Amendment rights of TikTok and WeChat users in the United States," the statement quoted a senior ACLU attorney, Ashley Gorski, as saying. "The Commerce Department's review of these and other apps must not take us down the same misguided path, by serving as a smokescreen for future bans or other unlawful actions."

U.S. WeChat users who sued the Trump administration also applauded Biden's move. A ban "would have led to the unprecedented shutdown of a major platform for communications relied on by millions of people in the United States," said Michael Bien, lead counsel for the plaintiffs.

Administration officials said Biden's order doesn't affect a separate Trump directive from last August instructing ByteDance to divest its U.S. TikTok operations. The interagency Committee on Foreign Investment in the United States, or CFIUS, has been overseeing ByteDance's proposals to comply with that order, which at one point included an offer to spin off part of its operations to Oracle.

"The CFIUS action remains under active discussion by the U.S. government. I'm not in a place to share any details of that," one of the administration officials said.

The new Biden order directs the Commerce secretary to prepare two reports: one recommending "additional executive and legislative actions to address the risk associated with" apps subject to the jurisdiction of a foreign adversary, and another offering recommendations to prevent a foreign adversary from harming Americans by gaining access to their health or genetic information.

The Trump administration last year sought to ban TikTok, WeChat and other apps owned by Chinese companies, including the mobile-payment app Alipay, on the grounds that they collected "vast swaths" of data on Americans and offered the Chinese Communist Party avenues for censoring or distorting information. The Army and the Navy banned service members from using TikTok on government-issued devices in 2019 and the Defense Department issued a warning to its employees about the app.

ByteDance and users of TikTok and WeChat quickly challenged Trump's executive orders in court, prompting judges to issue preliminary injunctions halting the bans.

In the WeChat case, the court said the plaintiffs had raised "serious questions" about the ban hurting their First Amendment rights. In one of the TikTok cases, users of the app argued that the ban would eliminate the "professional opportunities" they derived from the app.

The Trump administration appealed those preliminary injunctions, but the Biden administration in February asked federal appeals courts to halt those proceedings while it reviewed the proposed bans.

One of the Biden officials said some of Trump's executive orders "weren't implemented in the soundest fashion" and that the White House is now trying to establish "a robust comprehensive process against a set of clear and intelligible criteria" to determine any risks posed by apps.

The administration gave similar reasons for changing a different Trump order last week. While Biden preserved the heart of Trump's prohibitions on U.S. investment in companies that support China's military, he moved oversight of the ban from the Defense Department to the Treasury Department, to give it stronger legal grounding.

"Like the administration's order last week to ban investment in Chinese surveillance companies, this framework looks to improve on the Trump approach, but it should be judged on how they actually utilize the tool going forward," said Eric Sayers, a visiting fellow at the American Enterprise Institute and former Pentagon official.

"Will it be used aggressively against TikTok, Alipay or other tech platforms that capture vast amounts of Americans' data, or will it be employed rarely and with caution? If it's the latter, this will be an improved framework but hold little value," he said.

Sen. Josh Hawley, R-Mo., called revoking the Trump bans a "major mistake," saying in a tweet that it "shows alarming complacency" toward China's access to Americans' personal information and toward China's "growing corporate influence."

One former U.S. official, speaking on condition of anonymity because of the matter's sensitivity, said the new order "suggests that the export of data to China is a pressing problem for the Biden administration, but it offers no clarity as to how they will address it."

"The administration clearly wants to extricate itself from the legal morass created by its predecessor," the former official said, "but it's not yet clear they are committed to taking meaningful action in a timely way."