Trump gives TikTok an illegal amnesty
Summary
The tech firms that host the app are putting their shareholders at risk by failing to comply with the law.
President Trump took the oath of office Monday promising to faithfully execute the duties of his office, which include implementing the laws passed by Congress. Yet in one of his first acts as President, Mr. Trump effectively suspended a law requiring TikTok to divest from its Chinese owner ByteDance by Jan. 19.
Mr. Trump issued an executive order on Monday promising not to enforce the law’s penalties against tech companies that host the TikTok app for 75 days. He said he needs this time to consult with advisers “on the national security concerns posed by TikTok, and to pursue a resolution" that saves the platform.
Congress spent years studying the security concerns and resolved them with the Protecting Americans from Foreign Adversary Controlled Applications Act, which passed with large majorities last spring. The law lets the President grant a one-time 90-day reprieve from a ban if TikTok demonstrates “a path to executing a qualified divestiture," “evidence of significant progress," and “relevant legal agreements to enable" its execution.
None of these conditions have been met. Mike Waltz, Mr. Trump’s national security adviser, on Sunday on CBS’s “Face the Nation" cited interest in buying TikTok from investor Kevin O’Leary. But there is no formal offer and no interest in such a deal from ByteDance.
While challenging the law in court, TikTok rebuffed potential suitors. Beijing effectively blocked a deal by imposing export controls on its algorithms, which it treats as state secrets. After losing at the Supreme Court on Friday, TikTok and Beijing have shown a seeming openness to a deal. And Mr. Trump floated a “joint venture" in which the U.S. would have a 50% stake. It isn’t clear if he meant the U.S. government or private investors would own the American 50%. But it’s illegal either way.
The law precludes “the establishment or maintenance of any operational relationship" between TikTok’s U.S. operations “and any formerly affiliated entities" like ByteDance “that are controlled by a foreign adversary, including any cooperation with respect to the operation of a content recommendation algorithm or an agreement with respect to data sharing" (our emphasis).
In other words, TikTok must sever all ties with ByteDance and China. Mr. Trump can’t suspend laws like an English King before the 1689 Bill of Rights. It’s true that Barack Obama and Joe Biden refused to enforce some laws, but Mr. Trump just told the country he’s different.
Congress is a co-equal branch of government, not a subsidiary of the President. Members passed the law after finding that TikTok was collecting user data that would let Beijing spy on Americans.
Yet now he’s canoodling with CEO Shou Zi Chew, who was spotted at the inauguration next to Tulsi Gabbard, the President’s nominee for director of national intelligence, of all people. Talk about a horrible signal. Mr. Trump is relaying that he puts pleasing China’s Xi Jinping above a law passed by Congress.
Mr. Trump also promised not to enforce the law’s penalties on tech firms that carry TikTok, which can reach up to $850 billion. He directed his Attorney General “to issue a letter" granting broad immunity to providers that continue hosting TikTok. But Mr. Trump can’t rewrite the law by decree, and such a letter wouldn’t excuse companies like Apple, Google and Oracle from complying.
Arkansas Sen. Tom Cotton warned Sunday that “any company that hosts, distributes, services, or otherwise facilitates communist-controlled TikTok could face hundreds of billions of dollars of ruinous liability under the law." He’s right. State Attorneys General could sue tech companies for putting their citizens’ data at risk. Shareholders could sue the companies for risking ruinous penalties if they fail to comply with law.
Mr. Trump directed his AG to “defend the Executive’s exclusive authority to enforce the Act." But the Justice Department can’t stop others from suing. Mr. Trump’s TikTok order shows a Biden-like disdain for limits on his power that doesn’t bode well for the next four years.
