Trump's TikTok and WeChat executive orders stated that the bans were designed to address the threat of Chinese government access to personal and proprietary information. Photos: AFP / Lionel Bonaventure and Jim Watson

In the debate between US vice-presidential candidates on October 7, the Democratic challenger, Senator Kamala Harris, asserted that the Trump administration had “lost [the] trade war” with China, claiming that as a result of the tariffs imposed on China, the US had entered “a manufacturing recession.”  

The Republican incumbent, Vice-President Mike Pence, shot back, “Lose the trade war with China? Joe Biden never fought it. Joe Biden has been a cheerleader for Communist China” for decades.

This exchange succinctly framed the positions of the two election campaigns on the hot-button issue of China in the highly charged presidential-election environment. 

In his Republican nomination acceptance speech on the South Lawn of the White House on August 27, President Donald Trump boasted that his administration had taken “the toughest, boldest, strongest and hardest-hitting action against China” in American history.  

The Biden camp contended that these aggressive actions have backfired. Kate Bedingfield, Biden’s deputy campaign manager, told Politico that “Trump’s erratic and impulsive approach to China is causing [American] families economic pain.” 

Trump saw this as further evidence of Biden’s weakness. In his speech, Trump claimed that “China would own our country if Joe Biden got elected.” 

Fighting the trade war

In criticizing the Trump administration’s China policy, the Biden camp has focused its main attacks on the claimed negative fallout from the trade war, but the scope of Trump’s aggressive actions against China went far beyond that. And according to critics, the potential for such actions to damage US interests similarly extends beyond the intended and unintended consequences of the Trump tariffs.

While the impact of the trade war on the US economy may be open to debate, it is clear that it took a toll on the Chinese economy, with China’s GDP growth dropping from 6.7% in 2018 to 6.1% in 2019.  

While Trump’s use of tariffs to bring China to the negotiating table was controversial among many administration friends and foes alike, in private conversions multiple current and former diplomats from the US and other Western countries quietly praised Trump’s transactional negotiating style, expressing satisfaction that China was finally being held to account to perform its international obligations.

And when it came to the trade war, China seemed ready to do a deal. 

When Trump met privately with Chinese President Xi Jinping at the Group of Twenty summit in Buenos Aries on December 1, 2018, he presented a list of demands, including strengthening of intellectual-property-rights protections, limitation of non-tariff trade barriers, discontinuation of mandatory transfer of technology in exchange for market access, and increase of imports from the US, among others.  

A few weeks later, on December 26, 2018, China issued a draft of its newly revamped Foreign Investment Law, addressing Trump’s wish list virtually point for point.  

The new Foreign Investment Law was passed in record time on March 15, 2019, and took effect on January 1, 2020. The first-phase trade deal was signed on January 15.  

China gave up little in this first-phase deal, primarily agreeing to pull forward legislative action that was already in the works and to make increased purchases of US agricultural products. 

However, the signing of the first-phase trade agreement provided only a brief respite from the grating tensions generated by the lengthy trade war. Whatever goodwill existed quickly evaporated and Sino-US relations plunged to new depths in the wake of the Covid-19 outbreak, as the virus spread from China to the rest of the world, with particularly severe health and economic impacts in Europe and the US.

Against this backdrop of the global pandemic, all prospects for progress on further phases of the trade deal (the hard parts that were put off until later) were put on indefinite hold, and the Trump administration started to move away from cooperation to confrontation, striking out with even more draconian measures against Chinese interests.  

The focus was now on some of China’s leading tech companies and their hugely successful products and platforms, specifically TikTok (owned by ByteDance), WeChat (owned by Tencent), and telecommunications equipment suppliers Huawei and ZTE. While many Trump supporters cheered, critics decried these actions as overreaching with potential serious unintended consequences. 

No dancing with ByteDance

On August 6, citing national-security grounds, Trump issued executive orders banning all transactions with TikTok’s parent company ByteDance and all transactions with Tencent relating to WeChat, sending shockwaves through the user communities and technology partners for both platforms inside the US and more particularly in China.  

The TikTok and WeChat executive orders stated that the bans were designed to address the threat of Chinese government access to personal and proprietary information as well as content censorship and dissemination of disinformation, that is, Chinese “fake news.”

The TikTok ban has received the most attention in the US, which is no surprise since the video-sharing social-media app has been downloaded more than 175 million times in the US and has passed 1.5 billion downloads worldwide, ranking it as the third most downloaded non-gaming app at the end of 2019.  

TikTok use took off during the pandemic lockdowns, and the app entered the political arena when TikTok users claimed to have hacked registrations for a Trump rally in Tulsa, Oklahoma, in June, depressing actual attendance, much to the obvious chagrin of the Trump campaign.

While government officials in India and Australia and certain Internet security experts have also questioned certain aspects of TikTok’s security measures, the claimed national-security threat of TikTok certainly was not apparent to the more than 25 million people who recently viewed the video clip of Nathan Apodaca drinking Ocean Spray Cran-Raspberry juice directly from the bottle as he coasted to work at an Idaho potato warehouse on his longboard while lip-synching to Fleetwood Mac’s 1977 pop hit “Dreams.”  

The 220 million viewers of another top TikTok video, which featured synchronized dancing with a little kid on an escalator, likely also had no such worries about privacy. As one reader wryly noted in the comment section to an article assessing the security risks of TikTok, “Where and when a 14-year-old girl photographed a garden party in New England is clearly usable by the Chinese communist [party] to make American children atheists and communists” (sarcasm in original).  

WeChat and overseas Chinese

WeChat is less well known in the US than TikTok as it has only 19 million active users there, but this “super app” also has more than a billion users worldwide. WeChat is an indispensable all-in-one social-media app, e-commerce platform, blogging site, banking and ride-hailing services tool that is ubiquitous in China and across the vast global Chinese diaspora.

While WeChat has a broader range of features and may be used to communicate more sensitive personal data, it is used primarily by overseas Chinese in the US, and even then they cannot take full advantage of all of the features of the Chinese “super app” outside of China.   

The WeChat executive order specifically referenced the potential for Chinese authorities to conduct surveillance of Chinese citizens in the US, but this does not clearly appear to represent a substantial national security interest for the average American citizen warranting such a ban. Even some harsh critics of the potential for surveillance of WeChat users find the ban to be “not in line with [US] democratic values.”   

Of course, Google and Facebook are currently banned in China, but the US is not China. In the West generally and in the US specifically, we must balance our principles, our values and our interests against an impulse for disproportionately punitive measures just so that we can claim to have taken “the toughest, boldest, strongest and hardest-hitting action[s] against China,” especially when such actions restrict the inherent freedoms of our citizens and the legitimate commercial opportunities for our businesses. 

Courts have agreed with that assessment so far. The ban on downloading WeChat from the Apple Store and Google Play was blocked by a preliminary injunction issued by a federal judge in San Francisco in part on constitutional (First Amendment) grounds, and a federal district judge in Washington, DC, similarly issued a temporary restraining order barring the US government from implementing the ban against TikTok, so US WeChat and TikTok users remain safe for now.  

Robert Lewis is a lawyer based in Beijing. He was admitted to practice in California in 1985. He has worked in prominent US, UK and Chinese law firms in China for nearly 30 years. He is currently senior international consultant with Chance Bridge Partners, as well as co-founder and senior expert of docQbot. He is also the author of the book The Rules of the Game of Global M&A: Why So Many Chinese Outbound Deals Fail. He is fluent in spoken Mandarin and written Chinese.