(Photo
by
VCG/VCG
via
Getty
Images)
Last
night
President
Trump
signed
dozens
of
executive
orders
of
dubious
legality.
Among
the
many
federal
laws
and
constitutional
provisions
he
purported
to
cancel
with
a
stroke
of
his
pen
was
the
Protecting
Americans
from
Foreign
Adversary
Controlled
Applications
Act
(PAFACA),
AKA
the
TikTok
ban.
Citing
his
“unique
constitutional
responsibility
for
the
national
security
of
the
United
States”
and
the
“unfortunate
timing
of
section
2(a)
of
the
Act
—
one
day
before
I
took
office
as
the
47th
President
of
the
United
States,”
he
ordered
the
DOJ
not
to
enforce
the
law
for
75
days
“to
permit
my
Administration
an
opportunity
to
determine
the
appropriate
course
of
action
with
respect
to
TikTok.”
Publicly
Trump
is
floating
a
bid
for
the
US
government
to
buy
half
of
the
Chinese-owned
app.
“TikTok
is
worthless,
worthless
if
I
don’t
approve
it,
it
has
to
close.
I
learned
that
from
the
people
that
own
it.
If
I
don’t
do
the
deal,
it’s
worthless,
worth
nothing.
If
I
do
the
deal,
it’s
worth
maybe
a
trillion
dollars,
a
trillion,”
he
babbled
as
he
signed
the
order.
“If
I
do
the
deal
for
the
United
States,
then
I
think
we
should
get
half.
In
other
words
wait,
I
think
the
US
should
be
entitled
to
get
half
of
TikTok.
And
congratulations,
TikTok
has
a
good
partner,
and
that
would
be
worth,
you
know,
could
be
$500
billion
or
something.”
The
president,
who
claimed
that
it
violated
his
First
Amendment
rights
to
kick
him
off
social
media
platforms
in
January
of
2021
alleging
that
they
were
functionally
the
US
government,
would
like
his
own
government
to
literally
own
a
social
media
platform.
And
he’s
apparently
in
direct
talks
with
Chinese
President
Xi
Jinping
—
dictator
to
dictator
—
to
make
it
happen.
He
scoffs
at
the
very
security
concerns
that
a
bipartisan
Congress
and
the
Biden
administration,
not
to
mention
the
Supreme
Court,
agreed
justified
the
ban.
“Remember,
they
make
telephones
in
China.
They
make
all
sorts
of
things
in
China.
Nobody
ever
complains
about
that.
Here
they’re
complaining
about
this,
so
many
different
products
made
in
China,
nobody
ever
complained
about
the
only
one
they
complain
about
is
TikTok,”
he
went
on,
adding
that
it
was
fine,
really
if
China
exfiltrates
data
on
American
users
because
it’s
mostly
young
people
who
use
the
app,
and
“If
China
is
going
to
get
information
about
young
kids
out
of
it,
to
be
honest,
I
think
we
have
bigger
problems
than
that.”
This
is
a
guy
who
signed
an
executive
order
in
2020
banning
TikTok
because
“the
spread
in
the
United
States
of
mobile
applications
developed
and
owned
by
companies
in
the
People’s
Republic
of
China
(China)
continues
to
threaten
the
national
security,
foreign
policy,
and
economy
of
the
United
States.”
Perhaps
unsurprisingly,
the
tech
companies
are
unsure
of
how
to
proceed.
Under
the
plain
language
of
PAFACA,
US
entities
may
not
“distribute,
maintain,
or
update
(or
enable
the
distribution,
maintenance,
or
updating
of)”
any
application
owned
by
TikTok’s
parent
company
ByteDance,
and
the
attorney
general
“shall
conduct
investigations
related
to
potential
violations”
of
the
law.
Trump’s
EO
instructs
the
AG
“to
issue
a
letter
to
each
provider
stating
that
there
has
been
no
violation
of
the
statute
and
that
there
is
no
liability
for
any
conduct
that
occurred
during
the
above-specified
period,
as
well
as
for
any
conduct
from
the
effective
date
of
the
Act
until
the
issuance
of
this
Executive
Order.”
Clearly
distributing
TikTok
violates
PAFACA.
This
order
is
more
than
a
promise
to
forego
prosecution
—
it’s
a
declaration
that
the
law
is
what
Trump
says
it
is,
Congress
be
damned.
But
even
if
companies
had
confidence
that
Trump
wouldn’t
change
his
mind
again
and
decide
that
TikTok
is
a
threat
to
national
security,
PAFACA
has
a
five-year
statute
of
limitations.
Trump’s
successor
could
still
enforce
the
fines
of
$5,000
per
user
in
violation
of
the
law.
Plus,
the
EO
includes
boilerplate
language
specifying
that
“nothing
in
this
order
shall
be
construed
to
impair
or
otherwise
affect
the
authority
granted
by
law
to
an
executive
department
or
agency,
or
the
head
thereof”
and
that
it
“does
not,
create
any
right
or
benefit,
substantive
or
procedural,
enforceable
at
law
or
in
equity
by
any
party
against
the
United
States,
its
departments,
agencies,
or
entities,
its
officers,
employees,
or
agents,
or
any
other
person.”
So
even
if
Pam
Bondi
(assuming
she
gets
confirmed)
sends
out
notes
pinky-swearing
not
to
prosecute
anyone
for
violating
PAFACA,
that
won’t
help
if
the
tech
companies
find
themselves
in
court.
As
it
stands,
the
tech
companies
appear
to
be
divided.
Oracle
and
Akamai,
which
provide
web
support
for
TikTok,
restored
access
over
the
weekend
before
Trump
even
took
office
and
signed
the
order.
But
TikTok
remains
unavailable
in
the
Apple
and
Google
app
stores.
Apple
informs
users
that
it
is
“is
obligated
to
follow
the
laws
in
the
jurisdictions
where
it
operates”
and
so
it
cannot
offer
new
downloads,
updates
for
existing
users,
or
in-app
purchases.
And
so
the
question
is
whether
the
tech
companies
are
going
to
fall
on
their
swords
and
risk
billions
of
dollars
in
fines
by
opening
up
shop
to
the
170
million
American
users
of
the
app
(most
of
whom
are
adults,
BTW).
Turns
out
Trump
was
right
in
2020
when
he
said
the
app
could
be
used
for
“blackmail.”
Just
…
not
in
the
way
we
expected.
Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.