The Regulation of Foreign Platforms

In August 2020, the Trump Administration issued twin executive ordersbanning tech platforms TikTok and WeChat from the United States. These were not thefirst actions taken by the Trump Administration against Chinese tech platforms. But morethan any other, the ban on TikTok sparked immediate outrage, confusion, and criticism.This Article offers a new framework for thinking about national security restrictions onforeign tech platforms. A growing body of scholarship draws on principles from regulatedindustries, infrastructure industries, and public utilities to show how the regulation oftech platforms is not only viable but also has significant precedent and pedigree. Firms ininfrastructure sectors—banking, communications, transportation, and energy—have longbeen 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 foreignownership of, control of, and influence over platforms. This may be surprising given thecontours of the contemporary tech-platform debate. Tech neoliberals object to placing anyrestrictions on foreign tech platforms because regulations would threaten the openinternet. National security technocrats advocate for a case-by-case assessment of dangers,narrowly tailored mitigation measures, and audits to ensure compliance. Both of thesedominant paradigms suffer from a variety of conceptual and practical problems, andneither takes foreign tech platforms seriously as platforms, akin to platforms in othersectors.This Article recovers the history of restrictions on foreign platforms in traditionalregulated industries, critiques the dominant paradigms in the debate over foreign techplatforms, and offers an alternative: the platform-utilities paradigm. The platform-utilitiesapproach recognizes that the regulation of platforms is important and legitimate giventheir distinctive political economy. Taking lessons and strategies from the history ofplatform restrictions, it suggests focusing on sectors before specific firms and applying structural separations rather than complex formulas for preventing national securityharms. The platform-utilities approach would also require efforts at internationalinterconnection and domestic public investments. The Article concludes by revisiting thecase of TikTok with these lessons in mind.