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TikTok’s Draft Deal With the U.S. Government
August 31, 2023

TikTok’s Draft Deal With the U.S. Government

Reading Time: 5 minutes

Unpacking the Negotiations to Keep TikTok in the U.S., Unpacking the ByteDance negotiations, TikTok’s draft deal with the U.S. government

This past spring, the conversation around TikTok centered on whether the app would be banned in America. TikTok CEO Shou Zi Chew was hauled in front of Congress to testify about his company’s links to China, the government demanded that TikTok’s China-based parent company, ByteDance, sell the app or face a ban, and then … nothing. The storm that had been building against TikTok just seemed to fizzle.

While Congress was on summer vacation, Forbes technology reporter Emily Baker-White got her hands on a draft deal from last year that was between TikTok and the United States government and shows what the company was willing to do to keep operating in the U.S.

On Friday’s episode of What Next: TBD, I spoke with Baker-White about those negotiations—what they mean for TikTok and for regulating social media, and whether the government might be asking for surveillance powers that go too far. Our conversation has been edited and condensed for clarity.

Lizzie O’Leary: You got your hands on the draft of a deal between TikTok and CFIUS, the Committee on Foreign Investment in the United States, which basically fences and approves what foreign entities can do here. That draft outlined what TikTok would have to do to keep operating in the United States. What was in it?

Emily Baker-White: This draft agreement would give the government much broader power over TikTok, both in what it can access and what it can veto, in a way that struck me as not remotely the way any of our other major platforms are regulated. The way the agreement was structured gives a lot of power to the CFIUS monitoring agencies. Generally, it was framed as something called ‘non-objection power.’

What does that mean?

If you give an agency non-objection power, you have to notify them when you’re going to do something, and unless they affirmatively say they object to it, you’re fine. If some amount of time passes and they haven’t said anything, you can move ahead.

There was a lot of non-objection power in the draft of this agreement. My understanding is that this is not unique—CFIUS agreements often frame things in terms of non-objection power. However, one of the most interesting specifics from this contract is that the U.S. government would have non-objection power over changes to platform policies, including content policies. Which means that if TikTok wanted to make a material change to their content policies—if they wanted to change the rules about what speech is allowed on the platform—they would have to notify the government in advance.

There’s one part of the draft agreement that really stands out. It’s the creation of a third-party executive security committee operating in total secrecy from ByteDance. What does that mean?

It would require TikTok’s USDS division—a separate entity that would be in charge of dealing with decisions about U.S.-based users’ private information—to have a security committee that would operate in secrecy from ByteDance and make decisions about security issues.

There are layers upon layers upon layers of agreements in this draft plan. You also got to see some of the comments between ByteDance and the government lawyers.
What did their comments tell you?

There was one really interesting comment from the ByteDance lawyers to the CFIUS lawyers that talked about how they wanted to make sure that CFIUS could not come after ByteDance if the recommendations algorithm showed content that they didn’t like.

What if the recommendation algorithm is recommending posts from people who are sharply critical of the U.S. government? How would that fly?

That is something I think ByteDance and the U.S. government today would agree is protected speech, and the recommendations algorithm can recommend that content. We definitely don’t want it to get into a situation somewhere down the line where some future administration would try to curtail that. Because that’s a really, really fundamental right under the First Amendment.

There is a level of irony here. In attempting to make sure that China or the Chinese government doesn’t influence or censor or promote certain kinds of content, the U.S. is opening up the possibility for them to influence, censor, or promote different kinds of content. What do we do with that?

That’s one of the central tensions here.

The first tension is about practicability. Can you run a company this way? ByteDance is pushing back on that. The other tension is about the company’s independence when it comes to speech issues. If I worked for the U.S. government, my core questions would be: How do we craft something here that does not give the government direct power over speech considerations? What language can we add? What can we specify to make sure that no future administration could try to use this very, very, very powerful tool in a way that could warp discourse to their own political or financial gain?

TikTok is so big and so powerful that anybody who can is going to try to get a piece of that and use it for their own benefit. I think we’re seeing this tug between governments. I hope that the U.S. government would try to stop that and push back on the idea that the government should have that kind of control.

Does the U.S. have a good reason to do this? You, after all, were tracked and surveilled by ByteDance.

We don’t know, and we’re not likely to know. The assessment of threats that goes on behind the scenes for CFIUS is often informed by classified government intelligence. The draft agreement did not have any classified material in it, because it went to ByteDance, but the U.S. government is probably looking at a bunch of confidential intelligence that we don’t have.

We’re in the difficult position of having to trust the government and trust that we would agree with their assessment of classified human intelligence about what’s actually going on on the ground in China. I don’t know what’s going on. I don’t know if I would agree with the assessment of threats or not. What I do know is that both the Trump administration and the Biden administration have been firm that they believe this is a threat.

You talked to a number of free-speech advocates who look at this thing and say, ‘this does not bode well for the future.’ Does this mean anything for other social media companies? Or is this case totally unique to TikTok?

A lot of the issues that we’re worried about with TikTok, we’re worried about with other companies too—propaganda campaigns, disinformation campaigns, censorship issues, and data privacy. We have talked about these issues with Facebook, Meta, Google, and other massive companies. But with TikTok, there’s a geopolitics layer that makes these issues salient to a new group of people who weren’t necessarily tuned in to those conversations about domestic platforms but are tuned in to those conversations about TikTok.

It is very likely that, in the future, there will be other tech companies that are not going to be based in the United States, foreign platforms that are very powerful engines of speech. I hope that our conversation about TikTok, wherever it lands, can help us think about what to do about the sort of massive power of these platforms in an international, politically connected age.


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