The China Question

www.worldecr.com 26 ThE ChInAquESTIOn By Barbara D. Linney and Orga Cadet, BakerHostetler Biden Administration rejects targeted actions against TikTok andWeChat in favour of sweeping regulatory review of ICTS transactions INSIgHT B eginning in 2019, the US government has acted to protect US information and communications technology and services (‘ICTS’), defined broadly to include any hardware, software, or other product or service that helps electronically process, store, retrieve, or transmit information or data. However, whereas the Trump administration aimed to ‘make an example’ out of certain foreign companies that provide ICTS in the United States by banning various activities related to the TikTok and WeChat apps, 1 the Biden administration has cast a much broader net. In May 2019, then-President Trump issued an executive order finding that foreign adversaries are increasingly creating and exploiting vulnerabilities in ICTS and declaring a national emergency with respect to ICTS ‘designed, developed, manufactured, or supplied’ by certain foreign persons (the ‘ICTS EO’). 2 The ICTS EO established a new process by which the US Department of Commerce was empowered to review and potentially require the cessation of any ‘acquisition, importation, transfer, installation, dealing in, or use’ of ICTS from a person ‘owned by, controlled by, or subject to the jurisdiction or direction of ’ a foreign adversary (‘ICTS Transactions’). 3 However, the ICTS EO did not name any foreign adversaries. Instead, President Trump and the Department of Commerce acted in late 2020 to prohibit certain actions related to TikTok and WeChat (collectively, the ‘TikTok and WeChat Bans’), 4 invoking the ICTS EO as authority. This use of the ICTS EO to ‘name and shame’ specific foreign companies was challenged in the courts, resulting in preliminary determinations that the plaintiffs opposing the TikTok and WeChat Bans were likely to succeed because the statutory authority on which the ICTS EO and the TikTok and WeChat Bans were based 5 does not permit the US government to regulate personal communication or informational materials, or because there