FALL 2021
07
"it is not reasonable to infer that they
continued from page 04...
Economic Powers Act (IEEPA); that the
gave the school the authority to regulate
Biden Administration Rescinds Trump's TikTok and WeChat Bans, Issues Two Executive Orders Highlighting Policies on Chinese Tech Companies
government had not demonstrated an
her choice of language when she was off school premises and not engaged in any school activity."
" [Alito] noted the enormous disparity in treatment that would result if the government could only punish public school students' speech..." It remains to be seen how the principles articulated by the Court will apply to future controversies involving offcampus speech and "whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up school community." However, "to justify the prohibition of a particular
actual risk to national security from either app; and that the government had not demonstrated that a flat ban of either app was necessary to address any threat from the apps.) The Biden
ICT Supply Chain Risks, TikTok, WeChat, and the June 9, 2021, Executive Order On June 9, 2021, President Biden issued an order that rescinds President Trump's 2020 bans of TikTok and WeChat and builds on a 2019 order concerning U.S. critical information and communications
Administration never implemented the third Trump order.
" President Biden relied on the declared national emergency as the basis for the June 9, 2021, order—but took a different approach."
technology (ICT). See, e.g., https:// www.nytimes.com/2021/06/09/us/
Rather than rescind or change
politics/biden-tiktok-ban-trump.
Executive Order 13873, President
html; https://www.wsj.com/articles/
Biden relied on the declared national
biden-revokes-trump-actions-
emergency as the basis for the June
targeting-tiktok-wechat-11623247225;
9, 2021, order—but took a different
https://www.washingtonpost.com/
approach. The June 9 order revokes
technology/2021/06/09/tiktok-ban-
the orders banning TikTok, WeChat,
revoked-biden/
and other apps and instead requires the government to look at "potential
expression of opinion," the school
The 2019 Trump order, Executive
would have to show that "its action
Order 13873, declared a national
was caused by something more than a
emergency based on an "unusual
mere desire to avoid the discomfort and
and extraordinary" national security
unpleasantness that always accompany
threat posed by the possible use of
an unpopular viewpoint."
management by persons that
technologies created or provided by
support a foreign adversary's
companies under the control of foreign
military, intelligence, or
Davis Wright Tremaine LLP filed an amicus brief in the Mahanoy case on behalf of Mary Beth and Joe Tinker, key litigants in the U.S. Supreme Court's landmark 1969 student-speech ruling Tinker v. Des Moines Independent Community School District.
Robert Corn-Revere is a partner and John D. Seiver is of counsel in the Washington, D.C. office of Davis Wright Tremaine. Caesar Kalinowski IV is an associate in the Seattle office of Davis Wright Tremaine.
indicators of risk" before banning transactions, including: •
adversaries to compromise critical
proliferation activities" are "subject
U.S. ICT. The order authorized the
to coercion or cooption by a
Secretary of Commerce to ban certain
foreign adversary" or are "involved
transactions with these companies. Invoking this emergency, President
"[O]wnership, control, or
in malicious cyber activities"; •
Use of the software to conduct
Trump issued three orders prohibiting
espionage, including by allowing
transactions with (1) TikTok and its
a foreign adversary to access
parent company, (2) WeChat and its
sensitive government, business, or
parent company, and (3) other Chinese
personal data;
apps. None of these orders took effect: In litigation where DWT represented
•
third-party auditing of connected
groups of TikTok and WeChat content creators, courts blocked the TikTok and WeChat bans. (DWT argued
software applications"; •
and the International Emergency
The "scope and sensitivity" of the data the software collects;
successfully that these bans likely violated users’ First Amendment rights
"[A] lack of thorough and reliable
•
The number and sensitivity of the application's users; and
