President Biden Targets TikTok with Commerce Department Action

WASHINGTON—The administration of President Biden took a significant step on Friday with the publication of an online-security rule by the Commerce Department, aiming to bolster its legal authority against foreign-based apps, including TikTok, that could pose a threat to the United States.

As the U.S. continues to deliberate on the appropriate course of action regarding the popular video-sharing app owned by Beijing-based ByteDance Ltd., along with other Chinese-based apps, this move is taking place.

While the administration may still need new legislation to further strengthen its legal position before taking drastic measures like banning TikTok in the U.S., Congress has been divided on this issue thus far.

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However, Friday’s regulatory action signifies that the President Biden administration remains vigilant about Chinese-based apps that might pose security risks, which could reignite efforts in Congress.

The final rule, which focuses on the regulation of foreign-based apps, introduces additional criteria that the Commerce secretary can consider when assessing whether technology transactions involving apps present “undue or unacceptable risks,” according to a summary published in the Federal Register on Friday.

Unlike the previous approach of regulating entities “subject to coercion” by a foreign adversary, the new rule focuses on entities “subject to the jurisdiction or direction of a foreign adversary.”

TikTok and its allies argued during the Trump administration that a set of measures called the Berman amendments significantly limited the U.S. government’s emergency international economic powers, on which its online-security rules are based.

These amendments, originating from the final years of the Cold War, restricted the president’s authority to regulate or ban imports of “informational materials” from adversarial nations.

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Although the time of their inception did not see the existence of TikTok and other social media platforms, lawmakers later expanded these protections to effectively extend First Amendment-like safeguards to foreign digital media. TikTok’s legal team successfully invoked these protections in a 2020 lawsuit to block then-President Trump’s attempt to ban app downloads.

Friday’s action may revive interest in Congress to modify the Berman amendments or establish new legal authority for the administration to take action.

In addition, the administration has been considering potential measures against Kaspersky Lab, a Russian cybersecurity company long accused of posing a threat to the U.S., under the same rule. Friday’s action could facilitate the administration’s efforts to act against Kaspersky, which might encounter greater legal challenges in invoking the Berman amendments to contest regulatory actions.