An executive order signed by President Joe Biden this week dropped a Trump-era measure that barred Americans from downloading TikTok and several other Chinese smartphone apps. But analysts say the order also broadens the scrutiny of foreign-controlled technology.
Biden’s move replaced three Trump administration executive orders that sought to ban downloads of TikTok and WeChat and transactions with eight other Chinese apps. The order asked the Commerce Department to launch a national security review of apps owned or controlled by a foreign adversary.
Analysts said that even though TikTok and WeChat were not named in the executive order, they were not entirely cleared by the administration.
According to a White House fact sheet, the order will provide clear criteria to identify transactions involving foreign adversary-connected software that may pose risks to U.S. national security.
"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 document said. "Certain countries, including the People’s Republic of China, 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."
The order also sets deadlines for executive branch officials to form committees to study the risks posed by foreign-controlled technology and to create policy recommendations.
Overcoming legal challenges
Analysts say the new process could help overcome the legal challenges that set back Trump administration executive orders.
Courts blocked two executive orders aimed at banning WeChat and TikTok that former President Donald Trump issued in August 2020. Another one issued in January 2021, aimed at banning transactions with eight other Chinese apps, has not taken effect.
James Lewis, a cybersecurity expert at the Center for Strategic and International Studies, a Washington think tank, said the new order cleared the legal challenges that the Trump-era bans faced.
"The executive order lays out a strong basis for deciding when to take action, and with its clear criteria for a decision meets the court's objections about capriciousness. The EO puts us in [a] much better place by creating strong criteria and a good process for decisions," Lewis told VOA in an email.
"This means that TikTok may have to go through another review, and any decision won't be easily challenged in court," he added. "This is the start of Round 2, and TikTok may not get off as easily this time."
When asked during a briefing Wednesday if the White House still intended to ban TikTok or WeChat, an administration official told reporters that all apps listed on the revoked executive orders would be reviewed under the new process and criteria.
Key order stands
Julian Ku, a law professor at Hofstra University in Hempstead, New York, told VOA that Biden had maintained one of Trump's most important executive orders. Trump signed the “Securing the Information and Communications Technology and Services Supply Chain” order in May 2019, declaring a national emergency posed by foreign adversaries "who are increasingly creating and exploiting vulnerabilities in information and communications technology and services."
Biden is “not revoking the basic framework, which is that the U.S. government should be trying to prevent transfer of personal data to a foreign adversary," Ku told VOA in a phone interview. "He reserves the right in theory to come back and go after those companies or other companies that would potentially be threatening the personal data of America."
Both TikTok and WeChat did not respond to VOA's request for comment.
TikTok, a social networking app for sharing short, user-produced video clips, and WeChat, an app that includes messaging, social media and payment platforms, both collect extensive data on their users. The core concern is that the Chinese government will be able to access this data and potentially leverage it for espionage or blackmail. U.S. officials also worry that the heavy censorship of these apps will result in biased political opinions and increased spread of misinformation.
The American Civil Liberties Union applauded Biden's move but warned against "taking us down the same misguided path by serving as a smokescreen for future bans or other unlawful actions" with the requirement of a new security review. The rights group considered the Trump-era bans a violation of First Amendment rights.
BREAKING: The Biden administration has revoked Trump-era executive orders that targeted TikTok and WeChat and violated our First Amendment rights.— ACLU (@ACLU) June 9, 2021
Senator Josh Hawley criticized Biden's move, calling it a "major mistake."
It "shows alarming complacency regarding China's access to Americans' personal information, as well as China's growing corporate influence," he said on Twitter.
Chinese Ministry of Commerce spokesman Gao Feng said in Thursday's daily briefing that the revocation of Trump-era bans was "a step towards the right direction" and that officials hoped to see Chinese companies "treated fairly."