TikTox and WeChat highlight to me the growing ‘national securitization’ of trade and business transaction in U.S. foreign policy. ‘Trade, Technology and Transactions’ (T3) and even better ‘Trade, Technology, Telecommunications and Transaction’ (T4) have become the new foreign policy focus of the Trump administration.

This focus on business and government intervention is in the context of a rapidly changing global environment with increasingly unilateral state actions. Often challenging the international legal and multilateral institutional systems as well as the notion of free markets. Foreign policy isn’t what it use to be. It’s not your father’s American foreign policy.

This has been a growing development, now including reregulating the Internet. This reverses decades of US policy towards an open and unregulated Internet. 

To some degree we are now emulating the Chinese national control of the web. Of course, the EU, Russia, India and other countries are also concerned about Internet access, localization of data storage, user information, encryption and cybersecurity by private and state actors. There has been an incremental and growing Balkanization of the global web. Really need to look at this  carefully. Better national, international and diplomatic actions are clearly needed.

One additional point. The battle over the use of national security as a rationale or as a cover for global trade actions by the U.S. administration is under constant federal court scrutiny. Who would have thought that user data, source codes and algorithms  and technology transfers of all sorts would become matters of national security?

For example, a federal district court in California recently reviewed (Sept. 19, 2020) WeChat’s claim for a  temporary nationwide injunction (which it granted) that the Trumps administration’s actions violated its delegated authority under the International Economic Emergency Powers Act (IEEPA).

While the court concluded that the plaintiff would probably not be successful on its IEEPA claim, it did grant its request for an injunction on other constitutional grounds (First Amendment). But it interestingly stated, “”Certainly the government’s overarching national security interest is significant. But on this record … it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns.” Of course, the court can review this question at trial.

It should also be noted that TikTok also sued the administration previously raising issues of national security in light of CFIUS proceedings concerning restricting its transactions. However, the deal reached subsequently involving Oracle and Walmart has at least temporally stayed this action and might very well cause TikTok to file newer actions.

In conclusion, data transfer, privacy, data storage, telecommunications, and national security are complex technological, policy and legal issues. And they are growing internationally. The growing use of the national security rationale to address these issues by the United States and other countries is a critical development becoming ever more ominous this decade. 

• • • U.S. WeChat v. Trump (USDC for Northern California) (Sept. 19, 2020).

• • • “U.S. Judge Temporarily Halts Trump’s WeChat Ban.” New York Times (Sept. 21, 2020).

• • • “Trump’s TikTox and WeChat Bans.” New York Times (Sept. 19, 2020).

    • Malawer, “Trump and Section 232 — National Security and Trade.” China and WTO Review (2019).

    • Malawer, “Trump, Trade and National Security.” New York Law Journal (2018). Malawer, 

    • “Chinese Economic Cyber Espionage.” Georgetown Journal of International Affairs. (2016).

    • Malawer, “Global Governance of E-Commerce.” Virginia Lawyer (2001).