About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

13 J. Nat'l Sec. L. & Pol'y 61 (2022-2023)
TikTok v. Trump and the Uncertain Future of National Security-Based Restrictions on Data Trade

handle is hein.journals/jnatselp13 and id is 61 raw text is: TikTok v. Trump and the Uncertain Future of National Security-Based Restrictions on Data Trade Bernard Horowitz* & Terence Check** ABSTRACT Looking through the lens of the D.C. District Court's 2020 decision on President Trump's TikTok ban (TikTok v. Trump), this article assesses whether U.S. law can address national security concerns raised by cross border data trade while accommodating the needs of industry. The type of data valued by foreign rivals of the United States has gradually shifted in accordance with technological progress and geopolitical dynamics. During the 2000's and early 2010's, cyber-based foreign economic collection campaigns targeting the U.S. focused on high-value IP data and trade secrets. However, in the past few years, increasing societal reliance on the internet in tandem with advances in data processing and algorithms has produced a new type of data-related security concern: foreign adversarial mass bulk collection of quotidian U.S. person data, including biometric data (for example, facial photographs). The apparent threat posed by foreign mass collection of such data - which has been publicly and prominently emphasized by the U.S. Intelligence community (IC ) - gives rise to a philosophical conflict. On one hand, the IC and privacy advocates regard foreign adversarial access as a threat. On the other hand, business interests have grown heavily reliant on data trade. In some industries, such as the music business in the streaming era, data collection and trade may be pivotal to profitability and growth. TikTok, which originally began as a music-sharing platform, is alone worth $400 billion. Reconciling these opposing priorities and formulating a policy solution to such foreign data collection appears difficult under existing U.S. legal authorities. For example, the International Emergency Economic Powers Act (IEEPA) and the Committee on Foreign Investment in the United States (CFIUS )-under which foreign access to data might be restricted-may not be cleanly applicable to this cross-border data trade. * Law Clerk for Senior Judge Mary Ellen Coster Williams of the United States Court of Federal Claims. This article does not reflect the views of the Court of Federal Claims or Judge Williams, and was written solely in the author's personal capacity and not as part of his court-related duties. ** Senior Counsel, Cybersecurity and Infrastructure Security Agency, Department of Homeland Security; LL.M in Law & Government, specializing in National Security Law & Policy, American University Washington College of Law (2015); J.D., magna cum laude, Cleveland State University, Cleveland-Marshall College of Law (2014); Editor-in-Chief, Cleveland State Law Review (2013-2014). This article does not reflect the official position of the U.S. government, DHS, or CISA and all opinions expressed are solely those of the authors. The authors would like to thank friends and advisors who provided much-appreciated input on this article, including Prof. Sandra Aistars, Ethan Baer, Thomas Christian, Prof. James Cooper and Prof. Jeremy Rabkin. © 2022, Bernard Horowitz and Terence Check. 61

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most