Since taking office, President Biden has steadily been rescinding his predecessor’s executive orders on issues from immigration to diversity training. Still intact for now, though, are the controversial sanctions that former President Trump tried to impose on a number of Chinese technology companies. Had those restrictions taken effect, they would have effectively banned TikTok, the social media platform, and WeChat, the messaging application, in the United States. Thanks to a series of injunctions, they never did kick in. But litigation over the orders’ validity is still ongoing, and it now falls to the Biden administration to decide whether to keep defending them.
As readers of this newsletter know, challenges to Trump’s orders have been unfolding along parallel tracks in several different courts. In California, a federal district court concluded that the WeChat ban was likely unconstitutional because of its impact on users’ First Amendment rights. That order was appealed to the U.S. Court of Appeals for the Ninth Circuit, which heard oral argument in the case shortly before Biden’s inauguration. Right after that argument, the court asked the parties for more briefing — and gave the government a month to submit it, kicking the can down the road and providing the new administration a chance to change its tune.
Thanks to federal district courts in Pennsylvania and Washington, D.C., meanwhile, the TikTok ban has been frozen on the grounds that it exceeds the president’s authority under the International Emergency Economic Powers Act. As the Reporters Committee and the Electronic Frontier Foundation explained in a friend-of-the-court brief filed this month in the U.S. Court of Appeals for the Third Circuit, IEEPA has a carveout that prevents the president from regulating “informational materials,” a safeguard that Congress enacted in response to a series of controversies over the seizure of classic First Amendment materials like books and magazines. The government has been defending an interpretation of that carveout so narrow that, as one court pointed out, it would allow the government to “shut down the New York Times.” That is not, as our brief explained, a reasonable reading of a provision that was intended to end the use of sanctions against the press.
On Friday, the government filed its reply brief in that case, Marland v. Trump, and stuck to the same arguments it had mounted before the change in administration.
The Biden administration, meanwhile, has yet to reveal its plans, and White House Press Secretary Jen Psaki avoided answering a direct question about the future of the bans this week. (According to a draft messaging calendar, the White House plans to theme the month of February around “restoring America’s place in the world,” which may be the window in which to expect more national security changes.) Most expect, though, that Biden will eventually withdraw or modify Trump’s orders, even if his Justice Department doesn’t immediately drop its defense of the sanctions.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.