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Latest TikTok order could be 'backup plan' to ensure US ownership change

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Latest TikTok order could be 'backup plan' to ensure US ownership change

Within the span of two weeks, President Donald Trump issued two orders targeting TikTok Inc., creating fresh confusion over how soon the video-sharing app must be sold. But foreign investment experts said the two orders are not at odds.

On Aug. 4, Trump told reporters that TikTok and its Chinese parent Beijing Byte Dance Telecommunications Co. Ltd. had until Sept. 15 to find a "secure" and "very American" buyer for TikTok, or risk having the app shut down in the U.S. Two days later, the president issued an executive order that would ban "any transaction" related to ByteDance by any person or entity subject to U.S. jurisdiction beginning 45 days after the order's release — or on Sept. 20.

On Aug. 14, however, Trump released an executive order requiring ByteDance to divest all U.S. assets and data related to TikTok within the U.S. within 90 days, or months after the Sept. 20 deadline. The order, which also leaves open the possibility for a 30-day extension, stipulates that ByteDance must tell the U.S. Committee on Foreign Investment, which reviews the national security risks of foreign investments in the U.S., who the intended buyer is and provide them with 10 business days of notice to review a proposed sale.

Though some published reports have suggested the second order gives TikTok more time to complete a sale, Geoffrey Gertz — a fellow in the Global Economy and Development program at the Brookings Institution whose research has focused on foreign investment and investor-state dispute settlement — sees the two orders as largely independent of one another. They involve separate departments under the U.S. government. And the second order also gives Trump a backstop should his first order get held up in court or otherwise derailed, Gertz said.

SNL ImageSource: Pixabay

"There's a backup plan in place if necessary," he said, noting the Aug. 6 executive order could be rolled back or hemmed in, either by the Trump administration deciding that it was too extreme or under the threat of a legal challenge.

TikTok has already indicated it may challenge the Aug. 6 order in court.

"This Executive Order risks undermining global businesses' trust in the United States' commitment to the rule of law, which has served as a magnet for investment and spurred decades of American economic growth," TikTok said Aug. 7. It added that it will "pursue all remedies available to us in order to ensure that the rule of law is not discarded and that our company and our users are treated fairly — if not by the Administration, then by the US courts."

More, under the Aug. 6 order, Commerce Secretary Wilbur Ross has 45 days from the order's issuance to define what kind of transactions will be covered by the order. A more narrow definition of the term "transaction" could impact its scope. Reuters on Aug. 11 cited a White House document as stating that "prohibited transactions may include, for example, agreements to make the TikTok app available on app stores ... purchasing advertising on TikTok, and accepting terms of service to download the TikTok app onto a user device."

By contrast, the Aug. 14 order focuses on CFIUS, which operates under the Treasury Department.

"The CFIUS process had been underway for a long time, so this is quite possibly just crossing t's and dotting i's of completing that review," Gertz said of the Aug. 14 action. U.S. Treasury Secretary Steven Mnuchin confirmed in July that TikTok was under CFIUS review, but reports had indicated the company was under investigation as early as 2019.

Gertz said that regardless of what happens with the Aug. 6 order, the Aug. 14 order will "achieve what seems to be the Trump administration's top concern making sure TikTok is no longer owned and controlled by a Chinese entity."

David Mortlock, chair of the Global Trade & Investment Practice Group at the law firm Willkie Farr & Gallagher LLP, said in an interview that from what he can see, the two executive orders operate independent of each other.

While Mortlock said that there is "a strong implication that a divestment would meet the national security concerns of the administration," he believes that the administration retains its discretion to impose restrictions on ByteDance and its remaining holdings after any potential TikTok deal.

Microsoft Corp. has been in discussions to acquire TikTok since early August. Twitter Inc. held preliminary talks with TikTok over a potential deal and recent reports have named Oracle Corp. as an interested suitor. ByteDance and India's Reliance Industries Ltd. are in early discussions for investment in TikTok's Indian business.

According to an Aug. 6 blog post from Sensor Tower, which tracks the global app economy, TikTok has generated slightly more than 190 million downloads across Apple Inc.'s U.S. App Store and Alphabet Inc.'s Google Play, or about 8% of the app's lifetime installs globally, not counting its Android version in China.

Mortlock previously told S&P Global Market Intelligence that the Aug. 6 order also affords the government broad tools and restrictions, such as the ability to place the company on a U.S. Treasury list that blocks a company's assets and generally prohibits U.S. persons from dealing with them, or the discretion to design their own restrictions.