What Just About Everyone Is Getting Wrong About Banning TikTok
Reading Time: 7 minutesWhy you would ban it. How you would ban it. And if we really, truly want to ban it., The debate over banning TikTok is completely broken.
Last week, TikTok CEO Shou Zi Chew underwent an experience familiar to many tech executives: getting heat in front of Congress. Unique to TikTok, however, was that some politicians used the hearing to argue for a complete ban of the platform in the United States. Rep. Cathy McMorris Rodgers opened the hearing by saying as much: ‘We do not trust TikTok will ever embrace American values, values for freedom, human rights, and innovation.’
TikTok has been at the center of public debate due to the U.S. government’s national security concerns. These concerns stem from TikTok’s parent company, Chinese tech giant ByteDance, and worries that the Chinese government could compel ByteDance or TikTok to hand over data on TikTok users or manipulate content on the platform. Debates about TikTok go back over three years. Some members of Congress and the Committee on Foreign Investment in the United States, or CFIUS, began scrutinizing TikTok’s ownership in the fall of 2019; in August 2020, former President Donald Trump attempted and failed to ban TikTok entirely.
I’ve been fairly engaged in this conversation over the past three-plus years, from writing a long, widely read article breaking down possible risks with TikTok in early 2020, to arguing with a Trump official as the White House considered a ban, to recently attending one of TikTok’s private briefings for industry representatives and researchers in Washington, D.C., where the company’s top leadership spent hours running through its ‘Project Texas‘ plan to address government security concerns. The debate has now reached fever pitch.
The problem is: The TikTok debate is broken. From policymakers completely talking past each other to the media falling into false binaries when discussing TikTok and a possible ban, too many narratives on the issue have been contradictory, full of logical leaps, or incredibly reductive. Last week’s hearing and the surrounding press coverage and punditry made this clear. In the process, we have lost a sense of why this conversation matters—for the public, for Americans’ privacy, and for U.S. policy toward the global internet.
Most congressional hearings with major tech executives are a mixed bag. There are technically absurd questions, which often get featured in memes and excerpted on morning shows; there are more nuanced and targeted questions, which often get ignored by the press and dodged by the person answering them. (Perhaps the most famous meme comes from Sen. Orrin Hatch asking Mark Zuckerberg in 2018 how Facebook remains free to users: ‘Senator, we run ads,’ Zuckerberg replied with a smirk.) TikTok’s hearing was similarly scattered. There were questions about TikTok’s parent company and the Chinese government’s ability to access data from the app or manipulate its content. There were questions about child safety on the platform, looking specifically at issues such as platform addictiveness and the mental health of young women on the app. There was also everything from points made about the broader lack of data privacy protections in the United States to questions about whether TikTok’s Chew had spoken with Chinese government officials (to which he repeatedly said no).
All told, representatives’ questions were a mashup of genuine concerns about TikTok, misguided concerns about TikTok, China-bashing, broader concerns about data privacy, and more. Some issues raised, like child safety, are incredibly important. Many platforms have or are contributing to problems vis-à-vis child safety, addictiveness for minors, and the mental health of teenage users. Although causal relationships are sometimes overstated (when they may be less clear), many social media companies will not tackle issues like addictiveness without stronger market and regulatory incentives. But these issues of child safety—raised at TikTok’s hearing as part of the argument for a ban—are not related to national security or TikTok’s parent company per se. Questions of algorithmic addictiveness are not directly related to national security either (and have generally not been part of the conversation about Beijing’s potential data access and content manipulation). Those hoping the hearing would make a clear case for a ban were faced with a confused and issue-crowded hearing.
The TikTok debate’s problems go well beyond the hearing. Over the past several months, too many pro-ban policymakers and pundits have argued that a ban will protect Americans’ sensitive data. This is wrong and ignores the tech picture: The U.S. has no strong, comprehensive privacy law for consumers. Even if a policymaker envisions that a TikTok ban would limit Beijing’s access to user data, the fact is that corporate ownership is only one risk vector. Websites frequently collect highly sensitive information on visitors and share it with third parties. Application developers use pre-built software development kits (SDKs) in their apps which siphon users’ data, and are hidden behind the apps themselves. In the privacy and national security domains, the multibillion-dollar, virtually unregulated data brokerage ecosystem is another major source of risk. Research by the Federal Trade Commission, nonprofit World Privacy Forum, Senate Commerce, Science, and Transportation Committee, and my team at Duke’s Sanford School of Public Policy, among others, has underscored that data brokers are selling Americans’ identifiable demographic, location, health and mental health, and political data on the open market. The Chinese government, which does indeed gather tons of data on U.S. persons, can easily exploit these privacy gaps. Nonetheless, the myth of a TikTok ban as a silver bullet still persists in many Capitol Hill offices, when Congress has failed to regulate so many of these other areas that activists, scholars, and regulators have called attention to for decades.
On the flip side, many have argued that TikTok is literally no different than Facebook or Google—but this is a techno-centric analysis that loses the geopolitics. Looking at the data that TikTok collects is important to understanding the platform’s privacy and security risks. Looking only at the data TikTok collects to understand national security risks, however, is an analytical mistake. Regardless of what one thinks of a TikTok ban, the Chinese government has made clear its ability to coerce technology firms in China to hand over data, manipulate content, and otherwise assist with the state’s objectives. This doesn’t mean every company is under Chinese government influence all the time, or in the same ways (assuming as much is also a leap and will lead to bad policy). But it does mean that TikTok’s ownership by ByteDance, a major Chinese tech firm, does change the risks posed to U.S. users and to the U.S. government. For example, this is what makes it more concerning that multiple ByteDance employees accessed location data on U.S. journalists using TikTok, which is now under investigation by the Justice Department: There is a different potential impact when a foreign government could be involved.
Most recently, the media is rife with talk of the Biden administration and its threat that ByteDance sell TikTok to a U.S. owner or face a TikTok ban. Taking this at face value is misguided. When Trump attempted to ban TikTok in August 2020, he invoked the International Emergency Economic Powers Act, which allows the president to declare a ‘national emergency’ and then investigate, regulate, or prohibit transactions with certain entities that pose a security threat, such as a foreign company. The IEEPA, though, has an explicit limitation: The president cannot use it to restrict the import or export of ‘information or informational materials.’ TikTok obviously transmits information, and multiple federal courts cited this IEEPA limitation in 2020 when they ruled that Trump’s TikTok executive order exceeded presidential authority. The IEEPA has not changed since 2020. While some congressional bills, like the DATA Act and the RESTRICT Act, could address the executive branch’s challenge here, the Biden administration would need a new bill passed to even have a chance at trying to ban TikTok in the U.S. It remains to be seen if the RESTRICT Act could be passed. The administration’s threat of a forced divesture, similarly, demands skepticism; it sounds great, and the executive branch has compelled the sale of companies back to U.S. owners before, but the Chinese government has already said it would oppose any forced sale of TikTok.
False binaries make this even worse. The media framing of ‘ban’ or ‘no ban’ is harmful to the TikTok debate, because it pushes people into one of two camps. Pursuing a ban and doing nothing are not the only two options; passing a strong federal privacy law for all companies, that has additional provisions for certain foreign ones, is just one example of an approach between those two extremes. Discussing TikTok as a ‘risk’ or ‘not a risk’ is also harmful (and media, pundits, and policymakers have all done so). This is not what ‘risk’ means. Risk is about possibility—about the potential for a hypothetical scenario to occur. It does not necessarily mean the event has occurred before. It does not mean it will occur with complete certainty, either. It’s about possibility and what steps should be taken to address that possibility. The TikTok ‘risk’ conversation should really be about breaking out distinct security risks, discussing what evidence the government should or should not have to supply to substantiate concerns about TikTok, and whether proposed responses appropriately match those concerns—not reductively asking whether TikTok is a ‘risk’ or ‘not.’
The utter brokenness of the TikTok debate matters because the U.S. government is debating whether to heavily restrict or entirely expel a major technology platform, used by 150 million Americans, from the United States. Followers of U.S.-China policy will know that it’s hardly the first time a Chinese tech firm has drawn the U.S. government’s attention. Chinese telecom Huawei, for instance, was the subject of much national security debate before it was eventually effectively pushed out of the country. But restricting the use of telecom equipment in 5G networks is very different than restricting Americans’ access to a platform delivering information.
Proposed limits on TikTok use, on top of the federal device ban passed in December 2022, implicate questions of free speech, access to information, and how other countries view the U.S.’ commitment to a free and open internet. To say that banning TikTok will enable internet censorship worldwide takes agency away from governments that already censor the internet—including in China, Russia, and Iran. Yet the U.S. does need to consider any proposals about TikTok in a global context. Blurring economic and national security considerations has put the U.S. in hot water repeatedly in the past several years, especially during the Trump administration; the reality is that some countries will look at the U.S. seeking to expel a major Chinese tech company, one that is now competitive with U.S. giants (and that Facebook wants to sink), and wonder whether it’s the U.S. using national security as a cover to go after a rival of domestic social media giants. Even U.S. allies and partners might ask the same question in the face of Congress’ decades-long failure to pass a comprehensive federal privacy law.
Further, modifying or superseding a core restriction in the IEEPA, which prohibits the president from restricting the import or export of information or informational materials, would be a major decision. It should not be rushed without intense deliberation, and there are plenty of strong arguments for not modifying this limit on executive power at all. We need to repair this debate so that we stop falling into false binaries and simplistic narratives—and refocus on why this conversation matters for all Americans and for U.S. technology policy around the world.
Reference: https://slate.com/technology/2023/03/tiktok-ban-debate-broken-congress-biden.html
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