About the Author: Kathleen Stoughton is a first year law student at American University- Washington College of Law. Kathleen graduated from Carleton College in 2020 and is interested in potentially pursuing government work after graduation from law school.
As of August 2020, the Chinese-owned social media giant, TikTok, is actively being used by more than 100 million Americans.[1] However, TikTok’s foothold in the United States is now under threat. In October 2019, U.S. lawmakers began to raise concerns about TikTok and the potential danger that the app was being utilized by the Chinese government to both spy on and influence American users.[2] Since then, these concerns have continued to grow and spread throughout the private and public sectors. Many government organizations, such as the Transportation Security Administration, the Department of Homeland Security, and many branches of the United States armed forces, have already banned the app.[3] Companies in the private sector, such as Wells Fargo, have also banned their employees from using the app.[4] This panic culminated in August 2020, when President Trump issued an executive order that put TikTok on a 45-day clock until an effective ban on the app would go into place.[5] In his executive order, President Trump alleged that the app’s data collection was a threat to national security and would “allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”[6]
Since then, ByteDance, TikTok’s parent company, has been scrambling to circumvent the ban. ByteDance filed an ongoing lawsuit over the legality of the executive order and has been engaged in ownership discussions with a number of U.S. tech companies.[7] As of the end of September 2020, a federal judge has granted a preliminary injunction blocking President Trump’s order.[8] The saga between TikTok and the Trump administration will likely continue to be unresolved through at least the upcoming election. Whether the ongoing struggle sees users jump ship from the platform to its ultimate demise in the United States remains to be seen.
Regardless of the eventual outcome of TikTok, the ongoing controversy over TikTok opens up a slew of questions in regard to the relationship between data privacy and national security. One of these big questions: Is it possible that the TikTok ban is entirely missing the point? Just a few months ago, Clearview AI, an American technology corporation that specializes in facial recognition, was embroiled in controversy over the dangers of its services.[9] Clearview harvested its data, including billions of images, from “publicly available information.”[10] This public information was harvested from other social media companies, such as YouTube, Twitter, Instagram, LinkedIn, Venmo, and Facebook, and allowed for the identification of millions of people.[11] While the CEO of Clearview stipulated that there are certain countries the service would never sell their product to, like China, North Korea, and Russia, he demurred to giving a definitive answer on the nations that the service would sell to.[12] Instead, he only stated that there was great interest in the company and its technology.[13]
Clearview is a prime example of how, in many ways, the TikTok ban may be missing the point. With the TikTok ban, the United States government and President Trump contend that protecting the digital lives of millions of Americans is central to maintaining national security. TikTok is not the first, nor likely will it be the last, company to be banned over cybersecurity concerns. As of 2019, the Russian-based cybersecurity company Kaspersky was banned over similar national security concerns, and the Trump administration is also currently attempting to ban the Chinese-owned messaging platform, WeChat.[14] With this approach, it would seem as though the United States government has chosen to deal with the issue of protecting digital privacy and national security on a case-by-case basis. However, if the national government is concerned about the potential threat of harvesting American’s personal information, this approach may be entirely inadequate.
In our increasingly technologically-based society, it is nearly impossible to live without a sizable digital footprint. That is to say, so much of our lives already exist online – do nations such as China or Russia really gain more from TikTok, Kapersky, or WeChat than they already do from the organizations that already harvest our data and from what we make publicly available? If the government is truly concerned with protecting digital privacy, then it must take broader actions and fundamentally re-evaluate its stance on digital privacy. In the future, the United States might look toward the European Union’s General Data Protection Regulation (GDPR), which was passed in 2018. The GDPR restructured and reinforced principles of digital privacy and, more importantly, largely blocked the transfer of personal data outside of the EU.[15] Regardless, whichever approach the government takes in dealing with these issues, it must act quickly because it is clear that the current approach, which is both limited and embroiled in lawsuits and accusations of government transgression, just is not cutting it.
[1] Alex Sherman, TikTok Reveals Detailed User Numbers For the First Time, CNBC (Aug. 24, 2020, 6:33 PM), https://www.cnbc.com/2020/08/24/tiktok-reveals-us-global-user-growth-numbers-for-first-time.html#:~:text=TikTok%20has%20about%20100%20million,million%20daily%20active%20U.S.%20users.
[2] Tony Romm and Drew Harwell, TikTok Raises National Security Concerns in Congress as Schumer, Cotton Ask for Federal Review, Wash. Post (Oct. 24, 2019, 4:58 PM), https://www.washingtonpost.com/technology/2019/10/24/tiktok-raises-national-security-concerns-congress-schumer-cotton-ask-federal-review/.
[3] Mary Meisenzahl, US Government Agencies are Banning TikTok, the Social Media App Teens are Obsessed with, Over Cybersecurity Fears – Here’s the Full List, Bus. Insider (Feb. 25, 2020, 11:14 AM), https://www.businessinsider.com/us-government-agencies-have-banned-tiktok-app-2020-2#7-this-week-tsa-became-the-latest-agency-to-specifically-ban-the-app-7.
[4] Id.
[5] Exec. Order No. 13942, 3 C.F.R. 85 (2020).
[6] Id.
[7] Mike Issac, TikTok Is Said to Wrestle With Two Competing Offer, N.Y. Times (Aug. 27, 2020), https://www.nytimes.com/2020/08/27/technology/walmart-tiktok-deal.html.
[8] Rachel Lerman, Judge Blocks TikTok Ban in Second Ruling Against Trump’s Efforts to Curb Popular Chinese Services, Wash. Post (Sept. 27, 2020, 9:54 PM), https://www.washingtonpost.com/technology/2020/09/27/tiktok-ban-injunction/.
[9] Nick Statt, Clearview AI to Stop Selling Controversial Facial Recognition App to Private Companies, Verge (May 7, 2020, 8:29 PM), https://www.theverge.com/2020/5/7/21251387/clearview-ai-law-enforcement-police-facial-recognition-illinois-privacy-law.
[10] CNN, Clearview AI’s founder defends controversial facial recognition app, CNN Bus. (Feb. 10, 2020), https://www.cnn.com/videos/business/2020/02/10/clearview-ai-facial-recognition-orig.cnn-business/.
[11] Kashmir Hill, The Secretive Company that Might End Privacy as We Know It, N.Y. Times (Feb. 10, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html?utm_source=Memberful&utm_campaign=41977c2de4-daily_update_2020_01_21&utm_medium=email&utm_term=0_d4c7fece27-41977c2de4-111021813.
[12] CNN, supra note 10
[13] Id.
[14] Ana Swanson and David McCabe, U.S. Judge Temporarily Halts Trump’s WeChat Ban, N.Y. Times (Oct. 5, 2020), https://www.nytimes.com/2020/09/20/business/economy/court-wechat-ban.html/
[15] Claudia Biancotti, For the United States, More Digital Privacy Would Mean More National Security, Peterson Inst. for Int’l Econ. (Apr. 10, 2019, 5:30 PM), https://www.piie.com/blogs/realtime-economic-issues-watch/united-states-more-digital-privacy-would-mean-more-national.