President Trump’s executive orders threatening to ban TikTok and WeChat, two of the most popular messaging and social media apps in the world, are an unprecedented abuse of emergency powers. No president has ever taken actions like these against platforms that tens of millions of people in the United States use.

Selectively banning platforms does little to protect our personal data from abuse — comprehensive surveillance reform and consumer privacy legislation would actually help accomplish that goal. Instead, the bans could cut off the flow of information, art, and communication that social media provides, interfering with communities and connections users in the United States have with each other and with people around the world. This interference with freedom of expression and association violates the First Amendment.

Trump’s executive orders are vague and don’t explain the “emergency” purportedly at issue. They also leave important details unclear for 45 days — like the definition of “transactions” to which the bans apply, and how the prohibitions will apply to WeChat’s parent company, Tencent, which has investments in a number of U.S.-based businesses, including Reddit and Riot Games.

But here is what we do know:

Trump’s orders are an abuse of emergency powers under the pretense of national security.

Trump has claimed the power to ban TikTok and WeChat under a law that Congress passed in 1977, the International Emergency Economic Powers Act (IEEPA). When Congress passed this law, it intended to rein in abuses of presidential power. Too often, though, it has not worked that way.

The law allows presidents to respond to “any unusual and extraordinary” foreign “threat” to the United States’ “national security, foreign policy, or economy.” But Congress did not define terms like “emergency,” “threat,” or “national security,” or impose constraints on powers that presidents can abuse too easily, in violation of fundamental rights. That is why the ACLU believes presidential emergency powers — and IEEPA — must be fundamentally overhauled.

Meanwhile, Trump has taken abuse of authority to yet another level, invoking emergency and national security powers far beyond what Congress intended and the Constitution allows, to score political points, serve his xenophobic and racist agenda, and spread fear and uncertainty. He appears to be doing the same thing by selectively banning TikTok and WeChat, which are owned by companies based in China. But even under IEEPA, Congress explicitly says that presidents can’t ban any “personal communication, which does not involve the transfer of anything of value.” Trump’s orders appear to ignore this important constraint.

Selectively banning entire platforms violates the First Amendment and harms freedom of speech online.

Millions of people in the United States watch or post videos to TikTok and rely on WeChat for connections to family, friends, and work relationships. They are all engaging in First Amendment-protected speech, association, and expression.

The online communities created by TikTok and WeChat are important to their users. People derive joy from posting songs and videos, or de-stressing in these stressful times with games or images of cats sitting in boxes. Simply sending a emoji to a family member or friend is a meaningful personal communication. People also use the apps for political activism. Influencers like Jalaiah Harmon, James Jones, and Addison Rae have hundreds to millions of followers on TikTok — with all the fun, earnings, and political influence it can bring. “Favoriting” or “liking” a post can convey meaning. It can also be financially important to the platform and to the businesses that advertise their goods and services based on that expressive information.

In about six weeks, the Trump administration will specify the “transactions” it wants explicitly to ban. The consequences could be far-reaching, impacting TikTok and WeChat users or app stores, Internet Service Providers, web hosting companies, or any of the other network services that are part of online communications.

Still, people who use the platforms are worried that they will lose access to their services and may already stop posting on or engaging with them. And there is real cause for concern. Failing to comply with Trump’s orders could violate IEEPA, which carries civil fines of up to $250,000 even if the violation is not intentional and criminal penalties if a violation is intentional. Subjecting people to penalties for exercising their freedoms of expression and association violates the Constitution.

Privacy concerns are not the motivating factor behind the bans.

The Trump bans refer to threats to privacy if the Chinese government gets its hands on Americans’ private information. It is true that the Chinese government censors, suppresses dissent, and commits authoritarian, rights-violating abuses — mostly against its own people. It is also true that TikTok and WeChat collect broad categories of their users’ data and there are legitimate concerns about the sharing of that information with the Chinese government. But the administration has provided no specific and direct evidence of harm from TikTok and WeChat — only vague speculation and assertions. There is no legitimate public basis for these extraordinary bans — and in any event, sanctioning entire platforms significantly harms users’ First Amendment rights.

In fact, the data TikTok and WeChat collect does not appear substantially different from the kinds of data other foreign companies or American companies like Facebook or Google collect. And Trump has made no attempt to address privacy invasions caused by these companies operating in the United States. Nor has he supported surveillance reforms that would better protect the sensitive data of Americans and others against warrantless spying by U.S. intelligence agencies.

If protecting the information of users in the United States were a true motivating factor, the U.S. government could, for example, support strong consumer privacy legislation that would limit the amount of data social media companies can collect in the first place. This, as the ACLU has long said, would reduce privacy threats from security breaches; discriminatory advertisements for jobs, housing, and credit; data brokers selling our information to target immigrants; and abusive demands by foreign governments.

The government could also pass legislation or seek international agreements ensuring that data brokers or companies providing services to people in the United States can only hand over data, such as location history or web browsing logs, to any government — including our own — if there is a search warrant or a similar process involving independent oversight and a showing of just cause.

The privacy harms from data collection by apps are real. But the solution isn’t to capriciously ban two platforms. Bans that violate the First Amendment are the worst choice — ineffective, unconstitutional, and harmful to the lives and interests of tens of millions of people.

Hina Shamsi, Director, ACLU National Security Project,
Jennifer Stisa Granick, Surveillance and Cybersecurity Counsel, ACLU Speech, Privacy, and Technology Project,
& Daniel Kahn Gillmor, Senior Staff Technologist, ACLU Speech, Privacy, and Technology Project

The 19th Amendment inked women’s suffrage into American history, a culminating moment in an effort to win political power. But as the 100th anniversary of its ratification fast approaches, it’s essential to reflect on who the 19th Amendment excluded in practice if not on paper, and what the popular historical record of this movement leaves out.

“Black women know as 1920 unfolds that many of them are still going to be disenfranchised,” professor and author Martha S. Jones tells At Liberty. “That’s not a secret. That’s an open premise of the 19th Amendment.

Jones joined the podcast this week to discuss how the history of voting rights has led us to this moment. She is the Society of Black Alumni Presidential Professor and a professor of history at Johns Hopkins University. Jones is also the author of the new book, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All.

The ordained heroes of women’s suffrage — such as Elizabeth Cady Stanton, Susan B. Anthony, and later Alice Paul — often tossed out the leadership and movement-building of Black women. The absence of those voices from the popular historical record has obscured the centuries-long role that Black women have played, and continue to play, in expanding voting rights for all. In writing a book that attempts to capture “200 years of voting rights history in the U.S. from the perspective of African American women,” Jones says, she realized “that there really is no golden age of voting rights in the United States.”

“What was remarkable and important for me to discover was that the history I was telling lives inside many of the women whom we recognize as of our own movement, like Stacey Abrams or Ayanna Pressley,” says Jones. “When I heard Stacey Abrams crediting Shirley Chisholm, Barbara Jordan, Sharon Pratt Kelly, Sojourner Truth, and Harriet Tubman as helping to shape her political consciousness in her imagination, I realized there really was a story to tell.”

The Black Women Behind the Ongoing Fight for Suffrage

The Black Women Behind the Ongoing Fight for Suffrage

We’re coming up on the 100th anniversary of the 19th Amendment which was ratified on August 18th, 1920 and then certified eight days later. The 19th Amendment inked women’s suffrage into American history, a culminating moment in an effort to win p...

We’re coming up on the 100th anniversary of the 19th Amendment which was ratified on August 18th, 1920 and then certified eight days later. The 19th Amendment inked women’s suffrage into American history, a culminating moment in an effort to win p...

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Six months into the COVID-19 pandemic, it’s clear that among those suffering the most are those who typically get paid the least: the “essential workers” who tend to the sick, care for our elders, grow our food, stock our supermarket shelves, and operate the public transit necessary for these and other frontline workers to get to their jobs.

These mostly Black and Latinx workers, also disproportionately women, already live in a state of economic precariousness. For months now, they have been asked to literally risk their lives for their paychecks. In this way, the pandemic has further exposed and deepened our nation’s fault lines of racial and gender inequality.

Among the frontline workers in harm’s way are the nearly 1 million people who continue to serve up Egg McMuffins, Big Macs, and fries at the nation’s 14,000 McDonald’s restaurants. Despite the company’s vast resources — it has already paid nearly $2 billion to shareholders since the pandemic began — McDonald’s has rewarded the sacrifices of its low-wage cashiers and cooks with indifference to their safety and — when they and their loved ones get sick — refusal to grant job-protected, paid time off to stay home.

The U.S. enjoys the shameful distinction of being the only country in the developed world that doesn’t guarantee paid sick and family leave to workers. We have no choice, then, but to rely on employers to fill the void — yet they have doggedly resisted doing so. Roughly a quarter of the private workforce — more than 33 million people — are afforded no paid sick time to care for themselves, while more than 80 percent of private sector workers have no access to paid leave to care for a family member. 

These numbers are shocking enough, but because they are averages, they obscure an even uglier truth: Paid sick and family leave is nearly universal among higher-paid, professional workers. These workers are more likely to be white and are the same workers who, during this crisis, are most able to work from the snug safety of their homes. Among the lowest-paid quarter of the workforce, the majority of whom are Black and Latinx workers, only half of them have any paid sick days, and just 7 percent have paid family leave. In short, low-wage workers — far more likely to be people of color relegated to these occupations due to historic discrimination — are often the ones who lack paid sick and family leave, yet need it the most. 

Under normal circumstances, such figures reflect grave racial, gender, and economic inequalities. In the time of COVID-19, though, the lack of paid sick and family leave is also a matter of life and death. Without a paycheck during a needed absence from work, low-wage workers are forced to choose between earning critical income or taking care of themselves or loved ones at home who are sick. 

During the COVID-19 crisis, lack of access to paid family leave inflicts distinct, long-lasting harm on women. Women comprise 60 percent of the nation’s family caregivers, so when a family member falls ill, it is overwhelmingly women who will stay home with them. And because households of color are more likely to be multigenerational, with both young children and elderly relatives at home and in need of care, this caregiving burden falls especially heavily on Black and Latinx women.  
Without paid, job-protected family leave at work, those women will lose income or be pushed out of the labor force altogether. Such losses have catastrophic economic consequences, given that 64 percent of all families have a woman as the sole or primary breadwinner, a figure that is even higher in families of color. Women’s exit from work to perform unpaid family caregiving also helps sustain stereotypes about women’s suitability as workers and handicaps them in achieving the footholds necessary for on-the-job advancement. Such losses, in addition to assuring women’s continued segregation in lower-status roles and lower-wage fields, are key drivers of the gender and racial wage gap. The wage gap is even larger for women of color — while white women make $0.79 to a white man’s dollar, Black women make $0.62 and Latina women make $0.54 to the dollar. The wage gap is a penalty that is compounded over a lifetime of work and leaves older women more likely to live in poverty when they no longer work for a wage. 

Poor health and safety protections, poverty wages, and occupational segregation all sustain the effects of historic discrimination, white supremacy, and patriarchy. The ACLU has a longstanding commitment to redressing the adverse effects of racism and sexism and other forms of invidious discrimination in American society. That includes decades long commitments to affirmative action in employment and paid leave reflected in our organization’s policies. It includes commitments to defend essential health care coverage to address “harsh economic and social disparities that threaten our country’s democratic foundation and the cohesion of our society.” Taking on McDonalds for failing to provide paid sick and family leave is just a piece of this work.

Given employers’ widespread failure to provide the essential benefits of paid sick and family leave, why is the ACLU singling out McDonald’s? For the same reason that we have taken on the company’s pervasive, entrenched culture of sexual harassment — McDonald’s status as one of the largest employers in the world and the biggest name in fast food means that how it does business affects not just the lives of its hundreds of thousands of workers, and their families and communities — it also sets the pace for the entire corporate food service business. Its workforce practices hold similarly enormous capacity for modeling fairness, safety, and dignity. 
 
At this historic moment, as our nation grapples with its grievous legacy of racism, it is imperative to call out policies and practices that exacerbate inequality. Challenging corporate giants like McDonald’s to protect the Black and Latinx people keeping our country moving during the COVID-19 crisis is a civil rights fight we are proud to take on.

Ronald Newman, National Political Director, ACLU
& Louise Melling, Deputy Legal Director and Director of Center for Liberty, ACLU