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Biden Administration Presses Pause on WeChat and TikTok Appeals

keith.gerver@cwt.com's picture
Commentary by Keith Gerver

On February 11, 2021, the Courts of Appeal for the Ninth Circuit and the D.C. Circuit separately granted the Biden administration's motions to hold in abeyance the government's appeals of lower court injunctions of President Donald Trump's August 6, 2020 Executive Orders (available here and here). Those Orders directed the Commerce Department to identify transactions involving WeChat and TikTok, respectively, to be prohibited on national security grounds.

In mid-September, the Secretary of Commerce identified various transactions, including any distributions of the WeChat and TikTok mobile apps from the Apple App Store or Google Play. In its filings, the Biden administration stated that the abeyances were necessary so that it could "conduct an evaluation of the underlying record justifying those prohibitions" and determine whether the "national security threat" described in the August 6, 2020 Executive Orders continues to "warrant the identified prohibitions."

Commentary

The Biden administration's moves to pause proceedings related to WeChat and TikTok are part of a broader, whole-of-government reevaluation of U.S. policy toward the People's Republic of China. While it is expected that the Biden administration will maintain a stronger, more forceful tone (as compared to the Obama administration's approach to China) with respect to overall U.S.-China relations, it is likely to take narrower, more targeted actions and focus on core disputes and concerns.

This approach is consistent with reporting indicating that the Biden administration continues to assess whether it will stand by President Trump's August 14, 2020 Order requiring ByteDance, Ltd., the Chinese parent company of TikTok, to divest its U.S. TikTok operations to a buyer approved by the Committee on Foreign Investment in the United States (or "CFIUS"), or if it will resolve any legitimate national security concerns short of a forced sale. The Biden administration's reply to TikTok's challenge to the divestiture order is due February 18, 2020, and should provide more clarity on its approach.

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