Mariam Rahmani is a first-year law student at the American University Washington College of Law. Prior to attending law school, she earned an MPP (with a concentration in national security policy) and a BA in government and international politics from George Mason University.
TikTok CEO ,Shou Zi Chew, was questioned for nearly six-hours by both Republican and Democrat lawmakers at a Congressional hearing held on March 23, 2023. There are concerns regarding national and personal security as the app continues to grow in popularity, with more than 100 million users nationwide.[1] The app has become a bipartisan target as calls to ban TikTok outright from all devices nationwide have been supported by both chambers of Congress and most recently, the Biden administration.[2] In his written and oral testimony in response to concerns about user data, age restrictions, and privacy, Chew often notes that TikTok practices reflect common industry standards.[3] The issue for U.S. lawmakers, however, is not the app itself, but the government behind it.
Legislative history and the RESTRICT Act
The attempts to ban TikTok began in 2020, when then-President Trump signed two executive orders to ban it along with WeChat, another app; he eventually withdrew both orders in June 2021 after they were overturned by federal judges.[4] In 2022, the No TikTok on Government Devices Act was signed into law, banning the app on work-provided devices. More recently, a Republican lawmaker introduced the Deterring America’s Technological Adversaries (DATA) Act in February, and members of both parties introduced the Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act just a few weeks later.[5] Although the DATA Act has received opposition by Democrats, with critique that it is “overly broad”, the RESTRICT Act has received a statement of support from the White House urging Congress to pass the bill, which is expected to garner steady congressional support.[6] If passed, the RESTRICT Act provides what has not been seen from Congress in many years – a framework for the U.S to manage non-U.S. tech companies, products, and services.[7] Lawmakers issued a press release in support of the bill, claiming it “…proactively tackles sources of potentially dangerous technology before they gain a foothold in America, so we aren’t playing Whac-A-Mole and scrambling to catch up once they’re already ubiquitous.”[8]
What are the concerns, really?
Despite the commitments made by CEO Chew that no government has unequivocal access to data retrieved by the app[9], the U.S. is adamant that the potential threats will be unveiled if left alone. The Chinese government, said to be masters of the long game, [10] are likely collecting data from TikTok users, possibly using this data to spy on users, and using a biased algorithm to reinforce negative thoughts and affect public opinion, some experts say.[11] For lawmakers, the evidence lies with the app’s parent company, ByteDance, which is currently being investigated by the Justice Department for allegedly using the app to monitor U.S. journalists.[12] As a Chinese company, ByteDance must abide by a national security law requiring that it turn over any collected data to Chinese authorities when requested.[13] As far as many lawmakers are concerned, this is enough to warrant concern that downloading TikTok is the anecdotal equivalent to welcoming a spy balloon – openly allowing the Chinese government to retrieve their personal information at will and use it as they please.[14]
Even if the RESTRICT Act becomes law, can (and will) TikTok be banned?
In early March, the White House provided an ultimatum: the Chinese owners could sell their stakes in the company, or face a possible U.S. ban on the app[15]; a ban could mean that Apple and Google could no longer offer the app on their app stores and current users would no longer be able to download needed updates, rendering the app eventually unusable.[16] But, is this likely to happen so drastically and has it ever happened before? Many say that banning a platform with more than 100 million users would be unprecedented, and likely draw anger from the Chinese government.[17] Many U.S. organizations like the American Civil Liberties Union (ACLU) oppose the restriction of TikTok, saying that it violates First Amendment freedoms to disallow millions of Americans from expressing themselves as well as important information many receive from the app.[18]
If the RESTRICT Act does pass and if TikTok is banned from being downloaded, the U.S. will join the likes of nations such as India, Pakistan, and Afghanistan that have already banned the app and others such as Canada and the U.K. that are gradually restricting access to it.[19] Instead of an outright ban, it is possible that the administration could still approve of TikTok continuing to operate in the U.S. This could be possible if TikTok ditches ByteDance and operates under an American company instead. Nonetheless, if the RESTRICT Act passes and becomes law, it will mean broad authority for U.S. commerce officials to handle identified risks by products or services owned or controlled by foreign companies through both civil and criminal penalties.
[1] Haleluya Hadero and Farnous Amiri, TikTok CEO Grilled by Skeptical Lawmakers on Safety, Content, AP News (Mar. 23, 2023), https://apnews.com/article/tiktok-ban-ceo-congressional-hearing-bytedance-china-44d948c5b0ba18e2a714e0fa62d52779?utm_source=apnews&utm_medium=relatedcontentmodule.
[2]Sapna Maheshwari and Amanda Holpuch, Why Countries are Trying to Ban TikTok, The New York Times (Apr. 4, 2023), https://www.nytimes.com/article/tiktok-ban.html.
[3]Testimony, U.S. House Committee on Energy and Commerce, Written Statement of Testimony of Shou Chew, (March 23, 2023), https://docs.house.gov/meetings/IF/IF00/20230323/115519/HHRG-118-IF00-Wstate-ChewS-20230323.pdf.
[4]Justin Sherman, Two New Bills on TikTok and Beyond: The DATA Act and RESTRICT Act, Lawfare, (Mar. 23, 2023 8:31 AM), https://www.lawfareblog.com/two-new-bills-tiktok-and-beyond-data-act-and-restrict-act.
[5] Sherman, Supra Note 4.
[6] Id.
[7] Id.
[8] Press Release, Office of Mark Warner, Senators Introduce Bipartisan Bill to Tackle National Security Threats from Foreign Tech, (Mar. 7, 2023), https://www.warner.senate.gov/public/index.cfm/2023/3/senators-introduce-bipartisan-bill-to-tackle-national-security-threats-from-foreign-tech.
[9] Testimony, Supra Note 3.
[10]Rush Doshi, The Long Game: China’s Grand Strategy to Displace American Order, The Brookings Institution (Aug. 2, 2021), https://www.brookings.edu/essay/the-long-game-chinas-grand-strategy-to-displace-american-order/.
[11]Doug Jacobson, Analysis: Can the U.S. Government Ban Tiktok, PBS News Hour, (Mar. 25, 2023), https://www.pbs.org/newshour/nation/analysis-can-the-u-s-government-ban-tiktok.
[12]U.S. Prosecutors Probe ByteDance’s Use of TikTok to Track Journalists, Financial Times, (Mar. 16, 2023), https://www.ft.com/content/a617dfba-4946-4977-a1f8-dcfb8997ef51.
[13]Mariah Espada and Nik Popli, Why the U.S. and Other Countries Want to Ban or Restrict TikTok, TIME, (Mar. 16, 2023), https://time.com/6263851/why-us-wants-to-ban-tiktok/.
[14] Id.
[15]John D. McKinnon, U.S. Threatens Ban if TikTok’s Chinese Owners Don’t Sell Stakes, The Wall Street Journal, (Mar. 15, 2023), https://www.wsj.com/articles/u-s-threatens-to-ban-tiktok-if-chinese-founder-doesnt-sell-ownership-stake-36d7295c.
[16] Jacobson, Supra Note 12.
[17] Irina Ivanova, As Congress Eyes a TikTok Ban, What Happens to the Social Media Platform? CBS News, (Mar. 24, 2023), https://www.cbsnews.com/news/tiktok-ban-ceo-testimony-congress-sale-whats-next/.
[18] ACLU Strongly Opposes House Bill that Would Ban TikTok and Threaten First Amendment Rights, ACLU, (Feb. 27, 2023), https://www.aclu.org/press-releases/aclu-strongly-opposes-house-bill-that-would-ban-tiktok-and-threaten-first-amendment-rights.
[19] Espada and Popli, Supra Note 14.
