S1E15 - Tencent and TikTok - A Deep Dive on the Executive Orders and CFIUS

China Business Law Podcast

We are joined on our sister show Ganbei by Brian Fleming, Member at leading Washington DC law firm, Miller & Chevalier. Before joining the firm, Brian spent several years at the US Department of Justice working on national security issues related to export control, CFIUS investigations, and other compliance and enforcement efforts on international trade.

Brian and Art discuss the recent Executive Orders restricting the use of WeChat and TikTok and the ongoing discussions about a potential sale of TikTok and the concurrent CFIUS investigation.

-What is the legal basis behind the TikTok and WeChat Executive Orders?

-How will the 45 day time frame and process work for the Commerce Department to identify transactions subject to these orders?

-Are US companies' China subsidiaries covered by the order on WeChat?
-Will US citizens really fall under this rule and be prevented from using WeChat from a practical perspective, even in China? Can they really enforce this rule on a person-by-person basis? Who is really being targeted by this rule?

-Will the app stores like Apple and Google be forced to take down the app?

-Why was the Executive Order for WeChat limited to transactions with WeChat and not transactions with Tencent, whereas the order on TikTok was much broader to include all transactions with Bytedance?

-How hard will big business be lobbying to get this rule narrowly applied?
-Is there a license exemption process for companies to use and what can we learn from the Huawei experience with similar licenses?
-Can Tencent and Bytedance appeal these Executive Orders?

-What is the status of the CFIUS investigation into Bytedance and its 2017 acquisition of Musical.ly and how does that interplay with the discussions now on banning TikTok?
-What is coming next with respect to a potential sale to Microsoft or Twitter?

-How have CFIUS investigations driven other companies to be sold when held by Chinese buyers?

-How is the Administration using the Executive Order and the CFIUS investigation together as a coherent strategy?
-Was it obvious back in 2017 that Bytedance should have made a CFIUS filing for its acquisition of Musical.ly?

-How does the acquisition of a lip-synching app like Musical.ly trigger national security concerns?

-Can any Chinese company that handles a large amount of personal data on US citizens put in place mitigation measures to that will actually satisfy CFIUS in the current political environment?

-Is CFIUS really the right tool to be using to screen foreign companies and especially Chinese companies from doing business with large amounts of data or acquiring sensitive technology in the US?