Early this month, Secretary of State Mike Pompeo announced the “Clean Network” plan, a trade offensive aiming to cut Chinese tech companies off from United States consumers. Before a numb and beleaguered public could wrap its head around such a plan, Trump dispatched a pair of chaotic executive orders effectively aiming to ban TikTok and WeChat from American app stores in 45 days and then lobbed on a third executive order last Friday, extending the deadline for TikTok’s China-based parent company ByteDance to sell off its assets that support the operation of TikTok in the U.S. to 90 days. Together, this sounded to some like a blueprint for a new, U.S.-based Great Firewall, China’s own bulwark against foreign internet services.
The executive orders ban U.S. companies from doing business with the apps, but the initial TikTok order additionally leaves room for a forced sale of TikTok’s American arm to a domestic company (likely Microsoft or Twitter). The WeChat executive order offers less leeway, banning all transactions with WeChat itself, no matter who owns it, which will cut off a major avenue of communication between people in the U.S. and mainland China.
Both apps pose legitimate risks, and the Chinese government can demand that the companies hand over data. But the vague language of the executive orders and the “Clean Network” plan sounds a lot like Trump’s attitude toward immigration: All apps from one country are bad and dangerous. Or, in the words of the “Clean Network” plan, Chinese apps “threaten our privacy, proliferate viruses, and spread propaganda and disinformation.” The State Department billed the “Clean Network” plan as “new lines of effort,” which include: disconnecting Chinese carriers from U.S. telecoms; removing Chinese apps from U.S. app stores and doing the same to U.S. apps on Chinese stores or devices; removing U.S. data from Chinese company-provided cloud storage; and, oddly for a new policy, ensuring the security of decades-old undersea cables.
It’s more of a vision board for racism and xenophobia than a plan, but Trump & Co. have already meddled with internet freedom at home. Republicans have salivated over rolling back Section 230 of the Communications Decency Act, which frees internet platforms from liability over user-generated content. It’s the foundational law that allows vital resources like Wikipedia, social media platforms, and even comments sections to exist; Trump most recently attempted to bludgeon it by executive order, after Twitter wounded him with a bit of extremely lenient moderation.
Given all of that, let’s entertain the possibility that Trump really, really wants a Great Firewall, meaning A) cutting off foreign platforms and B) censoring speech at home. How close could he get?
In simplest terms, China’s Great Firewall involves a system of filters patrolled by an army of human guards.
Let’s explore how it currently works.
First, in order to land on gizmodo.com, for example, your computer has to communicate with a DNS root name server, which converts “gizmodo.com” to an IP address, a string of numbers necessary to retrieve the data which materializes as this website in your browser. (Read here for a more detailed explanation.) The Chinese state owns its own DNS root name servers, allowing it to block IP addresses, return the wrong address, and block search terms such as “Winnie the Pooh,” a popular insult targeting China’s President Xi Jinping. The firewall can also notify authorities if your behavior breaks any pre-set bans or laws. China also employs thousands of online censors and “internet police,” who show up at your doorstep for critiquing censorship or the president.
This model surely wouldn’t hold up in court against the First Amendment, and, in the U.S., DNS root name servers aren’t owned by a single government entity. But the government has successfully shut down websites, most recently via FOSTA-SESTA, a package of bills that outlawed the operating of websites perceived as facilitating sex trafficking by amending Section 230 of the Communications Decency Act, which, as I mentioned earlier, shields platform operators from liability for user-posted content. So far, FOSTA-SESTA enforcement has directly come down on few sites relative to the reach of its chilling effect—causing preemptive shutdowns of sites like Craigslist personals and cancellations of real-world events like an annual sex worker conference. The proposed EARN IT Act, a bipartisan FOSTA-SESTA 2.0, could now satiate Attorney General William Barr’s desire to strip encryption protections under the auspices of preventing child sexual abuse.
But the U.S.’s internet infrastructure is vastly more complicated than China’s, after decades of support for the free flow of information.
“I used to describe it to people this way,” Mieke Eoyang, former staﬀ member of the House Permanent Select Committee on Intelligence, said. “It’s like China is on an island; the traffic to the island gets there via a handful of bridges, and they can put toll booths on the bridges. And the United States is on the mainland, and it’s surrounded by other countries. The data flows easily and quickly all throughout, and it is co-mingled.”
A wall would require tearing down and rebuilding the internet, Eoyang explained, and the time and effort would bring an economically disastrous halt to whatever growth and innovation a nationalist blockade would supposedly aim to accomplish.
“I think it’s inevitable that whenever we are discussing a plan for internet regulation, especially when China is involved, even on the other side, that the Great Firewall gets brought up,” James Griffiths, author of The Great Firewall of China: How to Build and Control an Alternative Version of the Internet, said. But the comparison is “flawed,” Griffiths said, because the blockage of foreign services is a “minor” function compared to the censorship and surveillance that happens inside it, safeguarding a propaganda apparatus that stifles critics. (This includes WeChat, which does the same inside, and to some extent, beyond the wall.)
The concerns here are legitimate, Griffiths reiterated. Gathering vast troves of data is par for the course in Silicon Valley, but that doesn’t necessarily make it acceptable for TikTok to do so. “TikTok may never be able to convince U.S. regulators that as a Chinese company they could resist an illegal order from Beijing, when push comes to shove, but if they weren’t hoovering up so much data in the first place, that wouldn’t be such a concern,” Griffiths said. WeChat was “likely overdue a reckoning” given long-running accusations that it’s been censoring users outside of China.
The “Clean Network” plan does resemble “cyber sovereignty,” Griffiths noted, the concept that a country can shape and govern the internet within its borders, which might involve banning foreign apps, banning VPNs, or fencing in citizens’ data. Russia and China are codifying it into authoritarian policy, though even non-authoritarian governments might control the flow of data in the interest of economic protectionism or to prevent NSA spying on their citizens.
But China similarly invokes national security as a justification to censor speech and ice out foreign competition. He does find the moves “concerning”—as a trial balloon for “similarly broad executive orders” for targets that may be “far less legitimate” or reasons that are “more self-serving.”
As has become customary with Trump’s executive actions, the legal challenges were swift. TikTok is reportedly expected to sue on the grounds that the Trump regime unconstitutionally neglected to give TikTok a chance to respond, and its U.S.-based employees, who may lose their jobs, are reportedly planning to sue over workers’ rights.
Also as usual, the chaotic executive orders are constitutionally shaky: Banning communicative apps raises First Amendment issues, the Electronic Frontier Foundation was quick to note. The Supreme Court has recognized software as a protected means of expression. “Banning distributing the app in [an] app store would raise the First Amendment rights of the app stores to distribute software,” EFF Deputy Executive Director Kurt Opsahl told Gizmodo. “Of course, it would be up to Apple and Google whether to assert that in the face of a purported distribution ban.”
In this light, forcing a sale of TikTok sounds a lot like robbery, especially after Trump threw in a gangsterish suggestion that the government would get a cut of any buyout.
“The [Clean Network] plan cites no legal authority, so I’d be interested to see if the State Department has coordinated this with the Department of Justice,” Eoyang said. Eoyang added that “there are huge, troubling legal issues here”—including sidestepping the Constitution, which gives only Congress the power to regulate foreign commerce. “[F]or the President to take an action like this, he’d need specific statutory authority to do so,” Eoyang said. “Absent the statutory authority, the President is acting by fiat, and not according to the Constitution to which he swore an oath.”
Rules are anathema to the Trump regime, and though many executive orders have been put on hold or tied up in court for years (or are just meaningless), he’s issued revisions, and the Supreme Court’s conservative majority has been generous. Who would have imagined that a president could oppose funding for the U.S. Postal Service with the stated mission of preventing citizens from voting by mail? More often than not, Trump bulldozes expectations that actually turn out to be norms rather than laws.
“It is true that the president has no inherent, unilateral authority to create legally-binding rules relating to foreign investment in the United States, but Congress can and has delegated that authority to the president in various ways,” Bobby Chesney, a law professor specializing in national security, explained on the blog Lawfare.
Namely, Chesney writes, in 1988, Congress passed an amendment to the Defense Production Act, which gives the president the power to block “mergers, acquisitions, or takeovers” that pose a national security threat. Trump could work through the Committee on Foreign Investment in the United States—which reviews transactions past and present between foreign actors and U.S. companies—to exercise that power. In TikTok’s case, Trump has targeted the foreign transaction that China-based ByteDance made when it acquired TikTok’s predecessor, Musical.ly, in 2017.
Instead of the anticipated avenue, Trump used the International Emergency Economic Powers Act, which grants the president power to regulate or prohibit “foreign exchange” under “unusual and extraordinary threat with respect to which a national emergency has been declared.” (The Act has previously been invoked during national emergencies such as the aftermath of the 9/11 terrorist attacks.)
It’s safe to assume the considerable executive privilege wasn’t originally granted with a short-form video sharing app popular with teens in mind. Eoyang finds the justifications for the use of the act specious, and the potential enforcement mechanisms baffling. There may be some question over the constitutionality of the use of the IEEPA because “we’ve not really had courts peer behind the declaration of national emergencies.” Plus, this is “already weird,” she said: The executive orders against TikTok and WeChat assign regulation to the Secretary of Commerce, not the Secretary of State, who published the Clean Network plan.
“I just don’t understand how implementation is going to work,” Eoyang said. “Is [Trump] going to seek an injunction against an app store and say you cannot sell apps from China? And then what does it mean to be ‘from China’ under the national security definition? How is an operator of an app store to know what meets the definition without much more than that? Are you going to shut down these app stores? Are you going to fine people? All the enforcement mechanisms here seem really vague and unknown and problematic and certainly beyond what was envisioned in the [IEEPA].”
She added: “I don’t think they really understand what they’re trying to accomplish here.”
“It feels squishy,” Andrew Grotto, former National Security Council cybersecurity official under both the Obama and Trump administrations, told Gizmodo just after the announcement of the “Clean Network” plan. One gaping hole is the legal definition of the national security “risk”; the Clean Network plan and the executive orders barely pinpoint the exact rules Chinese apps are breaking. (Nor have most TikTok critics, who point to data collection as a nefarious practice, but don’t really spell out the threat posed by collecting an average middle schooler’s information.)
A glaring hole in the “Clean Network” plan and the executive orders is the absence of clear delineation of the national security risks the apps pose and the policies they violate. Data collection in itself isn’t unusual, and unlike the EU, the U.S. doesn’t have federal legislation regulating data collection and privacy; nor does the U.S. have a law dictating that data can’t be shared with foreign governments. The government can’t enforce rules that don’t yet exist.
“What’s tricky is that we don’t have a baseline for what an acceptable level of data protection looks like,” Grotto told Gizmodo. “It’s hard to say how much additional risk foreign ownership poses.”
Grotto agreed that it’s fair to say that TikTok aggressively collects data, but how much more aggressively than Facebook? He added that he has “no doubt” that the Chinese government exercises its authority to collect data, but then again, the Chinese government already steals a ton of data. “It’s just not obvious to me which is a bigger risk,” he said, “the fact that China has this authority to collect data from companies that it has jurisdiction over versus their ability to just go out and steal.”
We called Grotto a second time after Trump released the executive orders; he noted that the action is blunt, the language is fuzzy, and the justification is loose. “The IEEPA is highly amenable to executive action, and the president loves executive action,” Grotto noted, adding that it gives Trump enormous leverage and discretion to wield power.
As usual, Trump doesn’t leverage that power with long-term planning and stability in mind, just blowing up his enemies. Grotto pointed out that, rather than target two mainstream companies, other administrations might have created a set of guidelines for the Treasury Department to follow in order to pinpoint individuals and companies now and in the future at its own discretion.
“The text of the Executive Order is very informal,” Grotto noticed, “particularly the chapeau—the introductory paragraphs that describe the rationale of the action.” The language, which is typically drafted in order for lawyers to comply with requirements, is rather a statement on the nefariousness of the Chinese Communist Party—for example, that WeChat captures personal information for Chinese nationals outside the country, “thereby allowing the Chinese Communist Party a mechanism for keeping tabs on Chinese citizens who may be enjoying the benefits of a free society for the first time in their lives.” It’s true, but it sounds more like a thesis for a manifesto than a legal guideline.
And then, Grotto noted, the use of the word “reportedly” in this line from the TikTok executive order is just “really weird”:
TikTok, a video-sharing mobile application owned by the Chinese company ByteDance Ltd., has reportedly been downloaded over 175 million times in the United States and over one billion times globally.
“It either does or doesn’t censor content, and for an Executive Order from the President of the United States who has a vast surveillance intelligence-gathering infrastructure—to use the word ‘reportedly’ seems incredibly weak to me. It raises a lot of red flags. I’m in the camp where it wouldn’t surprise me at all if the Chinese communist party requires companies to support their censorship regime, but why say ‘reportedly’?” Grotto said.
Most experts agree that the racially loaded language speaks for itself. The bans more likely signal economic decoupling from China, rather than a closed internet.
“Trains are computers on wheels,” Grotto pointed out, noting that they potentially surveil riders perhaps even more than TikTok—they have wifi networks, cameras, in some cases audio recorders, body scanners, and face recognition on the horizon—and lately Congress and Trump have floated the idea of banning the Chinese state-owned train manufacturer CRRC from selling to U.S. metro systems. “Other Chinese enterprises that present an interesting kind of matrix of risks that I could see the president taking more interest in,” Grotto said.
The legal hurdles standing in the way of the “Clean Network”—and the limited months before the next presidential election—mean full implementation is probably a project for a second term, if Trump gets one, Grotto explained. Though Trump may not have time to build a wall around the American internet, we should remain concerned about how much of the existing infrastructure he’s capable of destroying on his way out.
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Update 8/21/2020 9:23am ET: An earlier version of this post stated that Backpage.com was shut down as a result of FOSTA-SESTA. FOSTA-SESTA was largely motivated by Backpage horror stories, but Backpage was seized shortly before FOSTA-SESTA was signed into law.