Vol.17 Issue 1 (2021)

Building Digital Walls and Making Speech and Internet Freedom (or Chinese Technology) Pay for It

Apratim Vidyarthi & Rachel Hulvey

The Trump Administration’s bans on Tik Tok and WeChat were the culmination in a line of escalating moves between the US and China that resulted in the US raising digital walls at home, in contrast to long-standing American foreign policy favouring Internet Freedom. This article examines the rationale cited by the US government for these digital walls, including threats of Chinese government access to American consumer data, the possibility of Chinese censorship on apps used by Americans, Chinese access to American government employees’ data and military networks, and the ability of the Chinese government to interfere with American elections and spread disinformation. Our analysis suggests that of these threats, only the threat of access to government employees’ data and military networks is sufficiently narrow and acutely rooted in reality so much so that the threat could possibly legally justify banning a foreign technology. However, even that analysis is close and rife with uncertainties.

More broadly, the tools at the US government’s disposal— IEEPA, Congressional lawmaking authority, and CFIUS review—encourage the use of such flimsy rationale and a lack of transparency, which ultimately promotes such broad bans; and the costs of these bans are dear. There may be First Amendment implications, and at the very least, a chilling of speech. There are also significant impacts on American foreign policy, from legitimizing the Chinese strategy of cybersovereignty and government regulation, to the creation of incentives to localize data in a manner that might undermine American law enforcement efforts.

Author

Apratim Vidyarthi: J.D. Candidate, 2022, University of Pennsylvania Law School.
Rachel Hulvey: Ph.D. Candidate, Political Science, University of Pennsylvania.