Michael Pazhwak ‘23
Staff Editor
In recent months, TikTok, the popular Chinese video creation and sharing platform, has gained notoriety in a unique and largely unprecedented way: as a national security threat to the United States. As it faces removal from U.S. app stores by order of the President, it has drawn attention to broader concerns about information handled by Chinese-owned telecommunications and technology companies, particularly because of the potential for their forced compliance with the aims of the authoritarian Chinese Communist Party. On Tuesday, September 29, the Federalist Society at the University of Virginia School of Law hosted a Zoom webinar to examine four questions regarding these concerns: 1) Why has US government determined that TikTok poses a national security threat; 2) what is US government doing about it; 3) what are the legal frameworks through which the US is acting; and 4) what might lie ahead. Moderated by Professor Ashely Deeks, the Director of UVA's National Security Law Center, the panel featured two guest speakers. The first was Charles Flint, the Chief of Staff of US Senator Marsha Blackburn of Tennessee, who advises the Senator on a range of issues including foreign threats, data privacy, and content moderation on social media platforms. The second was Sarah Harris, a partner in Williams & Connolly’s Supreme Court and Appellate Practice and a former Deputy Assistant Attorney General in the Office of Legal Counsel at the United States Department of Justice. Harris is responsible for advising the executive branch on legal issues, including those related to national security. A full recording of the event, which this editor highly recommends watching, is available on the YouTube channel of The Federalist Society at UVA Law.[1] For those short on time, a few highlights of each speaker’s main points will be given here.
The event began with Flint, who came down firmly on the conclusion that TikTok is a threat situated within a broader Chinese strategy, while also discussing counterarguments. He first pointed out that even if there are debates over whether TikTok is presently turning over data to the Chinese government, its attorneys have maintained the legal right for it to do so in the future, establishing data sharing as a persistent possibility. This judgment prompted an analysis of what China could do with what may seem to be innocuous user information of people seemingly insignificant to the Chinese state. Flint emphasized that it is not the present but the future that people should be worried about. Should China become interested in a particular US citizen, it could take disparate data points that are harmless individually and aggregate them into a comprehensive profile that includes personality traits, relationships, and preferences, providing complex profiles that could make the subject susceptible to manipulation. Flint then positioned this supposition within the larger Chinese outlook, which views war as a long-term, often non-kinetic activity within a doctrine of “strategic encirclement,” or subtle action in pursuit of power. He emphasized that the Chinese state’s almost unlimited power over its companies has made them key elements in its strategy. Flint’s examination of TikTok, how it could be used, and the aims of the country using it, makes a persuasive argument that the company poses a national security threat.
Next, Harris highlighted the challenge that Flint’s conclusion poses to the US government. Harris introduced the Committee on Foreign Investment in the United States (CFIUS) and the International Emergency Economic Powers Act (IEEPA), discussing their legal foundations, how they function, and their potential limitations. She then described how they have been used recently in regard to TikTok. For example, she explained how CFIUS, which reviews transactions by foreign entities attempting to merge with or acquire US companies, recently conducted a retroactive review of TikTok that became the basis for the Trump Administration’s widely publicized demand that TikTok operate as or under a US-owned entity or face a ban. She then provided analysis on IEEPA, which gives the President emergency powers to regulate the property of foreign entities that are subject to US jurisdiction. The act has been used to order a stop to downloads of TikTok and could be used to disable functionalities of the app. Next, she delved into the legal responses that these actions have prompted by TikTok and many of its users.
Harris discussed in particular a significant action in the US District Court for the District of Columbia, where a judge granted an injunction against the government’s IEEPA action to stop app downloads. She also articulated other legal questions regarding the First Amendment, due process, and a non-delegation challenge that have been raised against the government as part of the TikTok action. Harris concluded with a discussion of several potential resolutions to the dispute, from changing political winds altering government priorities to the acquisition of TikTok by a US entity. TikTok continues to have implications for the larger issue of judicial constraints on presidential power, demonstrating the broad secondary effects of the TikTok question.
The session concluded with an almost thirty-five-minute-long question-and-answer session moderated by Professor Deeks, who read questions submitted by audience members via the chat. The discussion here was wide ranging and will not be summarized, but both panelists continued to provide deep insight on the strategic and legal issues introduced above, bringing to an end to an event that was informative, intellectually stimulating, and timely as politics, technology, security, and law increasingly intersect.
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mwp8kk@virginia.edu