Stanford Law Review
regulation, foreign internet platforms, national security, interstate commerce
Internet Law | Law | National Security Law
In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken by the Trump Administration against Chinese tech platforms. But more than any other, the ban on TikTok sparked immediate outrage, confusion, and criticism.
This Article offers a new framework for thinking about national security restrictions on foreign tech platforms. A growing body of scholarship draws on principles from regulated industries, infrastructure industries, and public utilities to show how the regulation of tech platforms is not only viable but also has significant precedent and pedigree. Firms in infrastructure sectors-banking, communications, transportation, and energy-have long been subject to distinct and comprehensive regulatory regimes because they raise political- economy concerns distinct from those of ordinary tradable goods.
In many of these sectors, there is also a long history of legal restrictions on the foreign ownership of, control of, and influence over platforms. This may be surprising given the contours of the contemporary tech-platform debate. Tech neoliberals object to placing any restrictions on foreign tech platforms because regulations would threaten the open internet. National security technocrats advocate for a case-by-case assessment of dangers, narrowly tailored mitigation measures, and audits to ensure compliance. Both of these dominant paradigms suffer from a variety of conceptual and practical problems, and neither takes foreign tech platforms seriously as platforms, akin to platforms in other sectors.
This Article recovers the history of restrictions on foreign platforms in traditional regulated industries, critiques the dominant paradigms in the debate over foreign tech platforms, and offers an alternative: the platform-utilities paradigm. The platform-utilities approach recognizes that the regulation of platforms is important and legitimate given their distinctive political economy. Taking lessons and strategies from the history of platform restrictions, it suggests focusing on sectors before specific firms and applying structural separations rather than complex formulas for preventing national security harms. The platform-utilities approach would also require efforts at international interconnection and domestic public investments. The Article concludes by revisiting the case of TikTok with these lessons in mind.
The Regulation of Foreign Platforms, 74 Stanford Law Review. 1073
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1308