A new TikTok ban gains steam

After a year of laying low, ByteDance’s crown jewel faces a serious new threat

A new TikTok ban gains steam
(Pavlo Gonchar / Getty Images)

Today, let’s talk about a fast-moving new legislative effort in the United States to force ByteDance to divest itself of TikTok, or ban it nationally. The company has faced — and dodged — threats like this before. But while the odds are almost always against Congress getting new tech regulations over the finish line, there are reasons to believe things really might be different this time.

A year ago, I wrote in this space that TikTok was nearing the endgame. The Committee on Foreign Investment in the U.S, of CFIUS, had recently given ByteDance an ultimatum: divest itself of TikTok, or else. Amid growing concerns that the app is used to spy on Americans and could serve as an avenue for Chinese influence operations, the Biden administration told ByteDance that Chinese ownership of the app used by 170 million Americans was no longer tenable.

But “or else” never arrived. TikTok continued under Chinese ownership, and while the app has been banned on government devices in the federal bureaucracy and many states, last month President Biden’s campaign created an account on TikTok and started posting there.

I had made the classic mistake of assuming that US officials complaining loudly about social media would lead to action. Instead it led only, as usual, to those same officials posting videos to the very social networks that they loudly complain about.

Anyway, at the risk of making the same mistake I did last year: it appears as if US officials complaining loudly about social media might actually lead to action this time.

The reason is the Protecting Americans from Foreign Adversary Controlled Applications Act. Introduced just two days ago, on Thursday the bill passed unanimously out of the House Energy and Commerce Committee on a bipartisan vote of 50 to zero.

It has two main provisions. The first requires ByteDance to divest TikTok and other apps it controls within 180 days after the bill is enacted. Otherwise, those apps will be banned in the United States. The second provision creates a process that would let the president ban an app owned by a foreign adversary if it is determined to pose a threat to national security.

In other words, this is the “or else” that the Biden administration warned about last year. The call for ByteDance to sell TikTok would now carry added legal force. And if China blocked a sale — as observers assume it will — Congress would have created a process by which TikTok would be banned outright.

From TikTok’s perspective, it appears that forced sale is a nonstarter.

“This legislation has a predetermined outcome: a total ban of TikTok in the United States,” the company told me today in a statement. “The government is attempting to strip 170 million Americans of their Constitutional right to free expression. This will damage millions of businesses, deny artists an audience, and destroy the livelihoods of countless creators across the country.” 

Of course, that assumes that Congress’ bill will become a law. So what makes it feel different this time?

One key difference here is speed. It’s rare for any legislation, much less a major tech regulation, to be introduced and pass out of committee in two days.

Compare that to a similar bill introduced in the Senate last year. More than one quarter of senators co-sponsored the legislation, but the bill languished all year — and it never came up for a vote. (One of the lead sponsors, Democrat Mark Warner of Virginia, blamed inaction on intense lobbying from TikTok.) Another bill that sought to ban TikTok last year passed out of the House Foreign Affairs Committee but earned no votes from Democrats.

The House bill, by contrast, is moving briskly — and with strong bipartisan support.

That brings us to a second key difference about this bill: President Biden is working with Republicans.

The Associated Press reported today that the Biden administration is providing “technical assistance” to the Republicans drafting the measure. Press secretary Karine Jean-Pierre said the bill “still needs some work” to get Biden’s endorsement, but it appears that both sides are already basically aligned. We haven’t seen that with a TikTok bill before. 

The third and final difference with this bill is that TikTok seems seriously worried about it.

Over the past day, the company sent push alerts to users through the app, which opened to a screen bearing the following warning:

Speak up now — before your government strips 170 million Americans of their Constitutional right to free expression. This will damage millions of businesses, destroy the livelihoods of countless creators across the country, and deny artists an audience. Let Congress know what TikTok means to you and tell them to vote NO.

John W. Herrman reports at Intelligencer that, for him and at least some other users, the message could not be dismissed: users who wished to use the app had to either press the button to call the Congressional switchboard or hard-reset the app. (TikTok said it could be closed by tapping an X button or swiping it away; I haven’t seen the screen myself.) 

It’s rare but not unprecedented for platforms to draft their users into lobbying on their behalf: Uber, Facebook, Google, and Netflix are among the companies that have placed messages inside their various apps with calls to action.

But whether because of authentic user love for TikTok or the un-dismissable notification in the app, ByteDance’s lobbying resulted in a flood of phone-based activism into Congress on Thursday. 

Here are Cristiano Lima-Strong and Drew Harwell at the Washington Post:

Individual House offices have since received hundreds of calls from TikTok users, at times fielding upward of 20 a minute, according to eight congressional aides, who spoke on the condition of anonymity to describe the outreach. The volume has been so immense that some offices resorted to temporarily shutting off phones, two aides said, while others struggled to field unrelated calls. [...]

Some congressional aides said the callers bombarding their offices skewed young, while others said they appeared to range in age from teens to senior citizens.

One of the bill’s co-sponsors, Rep. Mike Gallagher (R-WI), criticized the lobbying effort, Semafor reported.

“Here you have an example of an adversary-controlled application lying to the American people, and interfering with the legislative process in Congress,” Gallagher said in response to the calls. “In a weird way it almost proves the point that we’ve been making here.”

I’m not sure how “asking Americans to call their elected representatives to voice their opinions” qualifies as “interfering with the legislative process.” But to the extent that it demonstrates how TikTok can influence politics — if only the politics around its own continued existence — then I suppose it does lend credence to fears that the app would prove useful in Chinese influence campaigns. 

If the House passes the bill, there’s no guarantee the Senate would follow. (Democrat Chuck Schumer, the Senate majority leader, is famous among Washington lobbyists for his willingness to quash tech regulations.) And even in the event that the bill is signed into law, litigation would surely follow. The American Civil Liberties Union and Electronic Frontier Foundation both oppose the bill. 

But where other tech regulations have transparently violated the First Amendment, this bill takes pain to note that it places no restrictions on content. Rather, it makes the case that TikTok poses a national security threat — a charge that, despite spending billions on its Project Texas data security project, TikTok has never been able to adequately refute. I suspect members of the Supreme Court, who don’t use or care about social media anyway, would give Congress wide latitude on this point.

Not everyone is so sure about that, though.

"The problem with the argument that this is just about data practices is all the politicians who keep saying that these measures are necessary because they're very concerned about the content on TikTok," said Evelyn Douek, an assistant professor of law at Stanford Law School and expert in content moderation.

"We're in a moment where platform regulations are testing the First Amendment all over the place, so it's hard to be confident on any outcome," Douek said. "But there's no workaround for the First Amendment where you can ban an entire speaker or medium of communication and say that it's just incidental to regulation of conduct. It's true that Courts will sometimes give more credence to national security arguments, but they shouldn't be a escape hatch from First Amendment problems, either."

I continue to feel ambivalent about the prospect of a TikTok ban. Even if such a move doesn’t violate the First Amendment, it would result in a broad suppression of speech — including lots of valuable political speech. And a world without TikTok is a gift to Meta and Google, whose power over the short-form video market will consolidate significantly as a result. 

But from surveilling journalists to pushing pro-China messaging in another one of its US apps, ByteDance ultimately made its own bed. And after all this time, it appears as if the company may finally be forced to lie in it.

Zoë Schiffer contributed to this report


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