House TikTok bill

On Wednesday, the US House of Representatives passed the Protecting Americans from Foreign Adversary Controlled Applications Act in a 352-65 vote. The bill would require the US version of social media app TikTok – used by 170M Americans – to either be divested from Chinese parent company ByteDance or be banned in the US.

President Biden indicated he will sign the bill into law if it passes through the Senate, which is expected to take its time conducting an assessment. The Chinese government has historically said it would oppose any forced sale of TikTok.

Specifics: The bill defines specific requirements for the divestiture, how a ban would be executed, and presidential authority for future cases. A few key provisions:

• ByteDance would have 180 days from the bill becoming law to divest TikTok before it is banned.
• TikTok must be sold to a company guaranteed to not be “controlled by a foreign adversary,” meaning China, Russia, North Korea, or Iran.
• A ban would employ prohibitions on web hosting services and app stores from supporting or making TikTok available in the US.
• The president would have authority to make determinations on similar cases in the future on any covered company deemed “a significant threat to the national security of the United States.”

For context: The House-approved bill is the furthest federal legislation has pushed among a series of government-driven efforts to regulate the app over the past few years. Lawmakers’ primary concerns are China’s potential for using TikTok to 1) access sensitive US user data and 2) manipulate public opinion in the US. TikTok has said it has not provided US user data to Chinese authorities and would not do so if asked.

Much of the debate has centered around the extent to which TikTok is a threat and the specific provisions and implications of the bill. Below are viewpoints from multiple sides to help you learn more and form a viewpoint of your own.

Notable viewpoints

GENERALLY SUPPORTIVE OF THE BILL

TikTok is a threat to US data security and should be divested by ByteDance or banned.

• Leaked internal recordings indicating ByteDance employees had access to private US TikTok user data between Sep 2021-Jan 2022 suggest US TikTok data can be accessed in China.
• TikTok’s danger is underscored by a discovery that employees of ByteDance were using user data to track journalists covering the company in 2022.
• Internal documents show that TikTok’s “Project Texas” effort to wall off American user data from parent company ByteDance and China has been porous – with workers sometimes sharing data with ByteDance without official approval.
• A 2017 Chinese intelligence law gives the Chinese government power to seize information from Chinese companies and use it for their own purposes, which could reasonably be extended to TikTok.

TikTok could be used to manipulate public opinion in the United States and should be divested by ByteDance or banned.

• The proposed bill should be put into effect as soon as possible given the likelihood TikTok manipulates sentiment on the platform; a Dec 2023 report by Network Contagion Research Institute found that TikTok appears to promote or demote content based on whether it aligns to Chinese government interests.
• A 2024 US Office of the Director of National Intelligence report found the Chinese government may have used TikTok accounts to target candidates in the 2022 US midterm elections.
• Despite TikTok’s algorithm being reviewable by US-based Oracle under “Project Texas,” the algorithm’s pace of change and complexity have made it difficult for experts to keep up or determine its potential to manipulate public opinion.
• TikTok has a demonstrated history of moderation policies that censor controversial issues in China such as Tiananmen Square and the Falun Gong religious group.
• TikTok’s decision earlier this month to send users push notifications encouraging them to contact their representatives and oppose the bill is an example of the company’s motivation for political interference and manipulation.

There is lawful precedent for banning TikTok and it would not violate the Constitution.

• Based on Supreme Court precedent such as Arcara v. Cloud Books, a TikTok ban would not violate the First Amendment because it is based on TikTok’s conduct (i.e., espionage) not the content of users on the platform.
• The bill does not violate the Constitution’s bill of attainder clause because it “does not punish TikTok for past conduct;” rather, it regulates TikTok’s activity going forward.
• With the US Committee on Foreign Investment’s forced sale of US dating app Grindr from China-based Beijing Kunlun Tech in 2020, there is precedent to force divestitures from China-based companies on national security grounds.

The bill includes adequate guardrails against future abuse of its power.

• “The House bill resolves [the TikTok threat] without giving the government any authority to ban any apps that are not controlled by China, North Korea, Russia, or Iran AND also a demonstrated national security threat.” (Brendan Carr, FCC Commissioner.)

In the event TikTok is banned, creators and other users that derive value from it will be able to move to other platforms.

• Creators will be able to shift their profiles and businesses to alternative platforms such as Instagram or YouTube.
• The bill empowers individuals and small businesses to switch platforms by ensuring banned apps provide copies of all personal data and content to users.

GENERALLY OPPOSED TO THE BILL

There isn’t compelling evidence TikTok is a significant threat to US data security.

• The US government has not publicly presented evidence that the Chinese government has access to US TikTok user data and cyber security experts have said it remains a hypothetical scenario.
• “Not a single thing [lawmakers] heard in [a] classified briefing [before Wednesday’s vote] was unique to TikTok. It was things that happen on every single social media platform.” (Rep. Sara Jacobs, D-California.)

TikTok does not pose a significantly higher risk of manipulating public opinion than any other platform.

• The 2024 US Office of the Director of National Intelligence report finding the Chinese government may have used TikTok accounts to influence 2022 US midterm elections is not a strong case for forcing a sale of TikTok because anyone could set up fake TikTok accounts for such a purpose regardless of the company’s owner.
• The Network Contagion Research Institute’s 2023 report finding TikTok promotes topics aligned to Chinese interests “fails to take into account the basic fact that hashtags are created by users, not by TikTok…the content [the report creators] refer to is widely available and claims of suppression are baseless.” (TikTok statement to NBC News.)

Banning TikTok would violate the Constitution.

• Banning TikTok would infringe upon Americans’ First Amendment right to free speech “because millions of Americans rely on the app every day for information, communication, advocacy, and entertainment.” (American Civil Liberties Union.)
• “Fifth Amendment says you can’t take someone’s property without due process. And a bill of attainder says you can’t write legislation against one person or one company. Those are pretty strong arguments.” (Sen. Rand Paul, R-Kentucky.)
• A TikTok ban would violate free speech rights, as a federal district court in Montana ruled in Nov 2023 when blocking the state's attempted TikTok ban.

The bill would set a dangerous precedent for the US and for presidential power.

• The bill’s granting of presidential authority to ban an app “controlled by a foreign adversary” could set a dangerous precedent and open the door to abuse; for example, a president could shut down an app if a political opponent was successfully using it to gain support.
• “The answer to CCP-style propaganda is not CCP-style oppression. Let us slow down before we blunder down this very steep and slippery slope.” (Rep Tom McClintock, R-California.)
• Passing the bill would be an unnecessary and dangerous move toward dictating where Americans can and can’t express themselves.

Creators and other users would be negatively impacted by a ban.

• TikTok generates more benefit than harm and is a livelihood source for hundreds of thousands of creators and 7M+ American small businesses; according to a TikTok-sponsored report, it drove $14.7B in revenue for small businesses in 2023.
• TikTok provides a meaningful space for community and creativity to millions that would be lost through a ban.
• “TikTok is a space for representation, and banning TikTok also means taking away a voice and a platform for people of color and queer creators that have made TikTok their home.” (Rep. Robert Garcia, D-California.)
• It wouldn’t be easy for many creators to switch to other platforms like Instagram or YouTube because of the unique nature of TikTok’s technology and community.

There are better ways to regulate TikTok than a forced divestiture or ban.

• There are better ways to regulate TikTok including passing the American Data Privacy and Protection Act or improving TikTok’s own “Project Texas” effort to wall off its US operations from China with US-based oversight.

OTHER VIEWPOINTS

The bill would likely result in a ban of TikTok because a divestiture from ByteDance would not be practical.

• A separation between TikTok and ByteDance would be challenging from a technical perspective, given ByteDance owns the algorithm powering TikTok and would likely be unwilling to allow it to be owned by another company.
• China is unlikely to permit a non-Chinese company to use ByteDance’s algorithm.

The bill will likely face legal challenges.

• If passed, the bill is likely to face legal challenges that may escalate as high as the Supreme Court, which could either delay or prevent its taking effect.

From the source

Read more from the full text of the bill and select primary sources:

• Full text of the bill: Protecting Americans from Foreign Adversary Controlled Applications Act
• US Constitution: First Amendment
• US Constitution: Fifth Amendment
• US Constitution Bills of Attainder Doctrine: ArtI.S9.C3.2
• Government list of “foreign adversary” countries: Title 10 Section 4872(d)(2)
• Full text of draft data privacy bill: American Data Privacy and Protection Act

Be heard

We want to hear from you! Share your perspective on the House’s proposed bill and we may feature it in our socials or future newsletters. Reply to this email in the format of your choosing (text, audio, or video). Below are topic ideas to consider.

• Do you support the House’s proposal to force a sale of TikTok or ban it?
• If the bill is passed, what do you see as the most likely eventual outcome?

Give us your feedback! Please let us know how we can improve.

#BTW

A melodic rock tune by indie folk band Big Thief.