If the president orders you to break the law, does that make it legal? (Spoiler Alert: No.)
The post Trump Claims To Un-Ban TikTok By Fiat, But Tech Platforms Worry That Actual Law May Still Apply appeared first on Above the Law.
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Last night President Trump signed dozens of executive orders of dubious legality. Among the many federal laws and constitutional provisions he purported to cancel with a stroke of his pen was the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), AKA the TikTok ban.
Citing his “unique constitutional responsibility for the national security of the United States” and the “unfortunate timing of section 2(a) of the Act — one day before I took office as the 47th President of the United States,” he ordered the DOJ not to enforce the law for 75 days “to permit my Administration an opportunity to determine the appropriate course of action with respect to TikTok.”
Publicly Trump is floating a bid for the US government to buy half of the Chinese-owned app.
“TikTok is worthless, worthless if I don’t approve it, it has to close. I learned that from the people that own it. If I don’t do the deal, it’s worthless, worth nothing. If I do the deal, it’s worth maybe a trillion dollars, a trillion,” he babbled as he signed the order. “If I do the deal for the United States, then I think we should get half. In other words wait, I think the US should be entitled to get half of TikTok. And congratulations, TikTok has a good partner, and that would be worth, you know, could be $500 billion or something.”
The president, who claimed that it violated his First Amendment rights to kick him off social media platforms in January of 2021 alleging that they were functionally the US government, would like his own government to literally own a social media platform. And he’s apparently in direct talks with Chinese President Xi Jinping — dictator to dictator — to make it happen.
He scoffs at the very security concerns that a bipartisan Congress and the Biden administration, not to mention the Supreme Court, agreed justified the ban.
“Remember, they make telephones in China. They make all sorts of things in China. Nobody ever complains about that. Here they’re complaining about this, so many different products made in China, nobody ever complained about the only one they complain about is TikTok,” he went on, adding that it was fine, really if China exfiltrates data on American users because it’s mostly young people who use the app, and “If China is going to get information about young kids out of it, to be honest, I think we have bigger problems than that.”
This is a guy who signed an executive order in 2020 banning TikTok because “the spread in the United States of mobile applications developed and owned by companies in the People’s Republic of China (China) continues to threaten the national security, foreign policy, and economy of the United States.”
Perhaps unsurprisingly, the tech companies are unsure of how to proceed. Under the plain language of PAFACA, US entities may not “distribute, maintain, or update (or enable the distribution, maintenance, or updating of)” any application owned by TikTok’s parent company ByteDance, and the attorney general “shall conduct investigations related to potential violations” of the law.
Trump’s EO instructs the AG “to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order.”
Clearly distributing TikTok violates PAFACA. This order is more than a promise to forego prosecution — it’s a declaration that the law is what Trump says it is, Congress be damned.
But even if companies had confidence that Trump wouldn’t change his mind again and decide that TikTok is a threat to national security, PAFACA has a five-year statute of limitations. Trump’s successor could still enforce the fines of $5,000 per user in violation of the law. Plus, the EO includes boilerplate language specifying that “nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof” and that it “does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” So even if Pam Bondi (assuming she gets confirmed) sends out notes pinky-swearing not to prosecute anyone for violating PAFACA, that won’t help if the tech companies find themselves in court.
As it stands, the tech companies appear to be divided. Oracle and Akamai, which provide web support for TikTok, restored access over the weekend before Trump even took office and signed the order. But TikTok remains unavailable in the Apple and Google app stores. Apple informs users that it is “is obligated to follow the laws in the jurisdictions where it operates” and so it cannot offer new downloads, updates for existing users, or in-app purchases.
And so the question is whether the tech companies are going to fall on their swords and risk billions of dollars in fines by opening up shop to the 170 million American users of the app (most of whom are adults, BTW).
Turns out Trump was right in 2020 when he said the app could be used for “blackmail.” Just … not in the way we expected.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
