The TikTok Saga: Why Are Some U.S. Policymakers Considering a TikTok Ban?

This piece was last updated on October 31, 2023

The pressure to ban TikTok has been mounting on all fronts in the United States, prompting direct actions from administrations, congressional proposals, and state legislative efforts. The core of the debate pits protecting users’ free speech with countering the potential influence that a foreign company has on American public. TikTok’s ownership and control by Chinese tech giant ByteDance, raised several concerns about whether the app’s influence and access to personal information of millions of U.S. citizens poses a risk to civil and human rights and/or national security.

Further, TikTok has been accused of censoring content dating back to 2019, when it seemed to be censoring content related to the Chinese Communist Party’s repression of Uyghurs in the Xinjiang area. Concerns that TikTok use may be contributing to depression, eating disorders, and other mental health issues in teens are also top of mind for the public and policymakers, prompting TikTok to create a new mental health awareness hub.

As one of the most dominant social media platforms, it has over 150 million active users in the United States. It evolved from a platform for teenage dance videos to a major player in the tech industry and a cultural phenomenon. At a time when most social media platforms used a “social graph” that aims to connect a person with people the user may know or have a connection to (i.e., the triadic closure principle), TikTok’s algorithms utilized social-interest graphs to determine a user’s potential interests by considering their current interests as well as their connections to generate specifically curated content for each user on its ‘For You’ page. This personalized stream of content, infinite scroll format, and short-form video content set the stage for an immersive user experience, making the app particularly popular. Rather than fight the change in content delivery, other social media companies have adopted new features to mimic or host content from TikTok. This further entrenches TikTok in the US market as audiences have grown to expect content delivered in this format.

National Security Concerns

In June 2022, BuzzFeed News reported leaked audio recordings from TikTok internal meetings that showed ByteDance was able to access U.S. user data from China. Because TikTok is owned by ByteDance and the Chinese government can access private company data, U.S. officials fear that the Chinese government may access U.S. user data. Concerns heightened after four Bytedance workers accessed information about U.S. journalists and users to find out who provided internal documents to Buzzfeed News and the Financial Times.

The FBI flagged additional concerns during a House Homeland Security Committee hearing in November 2022 and a Senate Intelligence Committee hearing in March 2023. FBI Director Christopher Wray highlighted the possibility that the Chinese government could take control of TikTok’s user data and recommendation algorithm and use them to conduct targeting for espionage, targeting for intellectual property theft, and other influence operations. He also mentioned the possibility that the Chinese government could use TikTok “to control software on millions of devices,” thereby giving China “an opportunity to potentially technically compromise personal devices.”

 

Legislative efforts

Congress has discussed and debated several bills that would restrict TikTok. Rep. Jack Bergman’s (R-MI) Protecting Personal Data from Foreign Adversaries Act would “prohibit the use of mobile applications or software that provide U.S. citizens’ data to a communist country, a foreign adversary, or a state sponsor of terrorism.” This would include prohibiting the use of mobile applications and software that facilitate such sharing. Additionally, the bill would authorize sanctions on mobile applications that are found to be illicitly accessing and sharing U.S. personal data with the Chinese government.

Sen. Josh Hawley’s (R-MO) No TikTok on United States Devices Act aims to “prohibit the Chinese-based TikTok app from being downloaded on U.S. devices and ban commercial activity with ByteDance.” Notably, Hawley previously sponsored legislation, No TikTok on Government Devices Act, which became law in December 2022. The newly introduced GOT Act “aims to prohibit officers, employees, and elected officials of the Federal Government from having, establishing, and maintaining official accounts on Tik Tok”. Over thirty states have enacted similar laws, with New York City recently banning TikTok on government-owned devices under Mayor Eric Adams’ administration.

Unlike the No TikTok on United States Devices Act, Sen. Mark Warner’s (D-VA) and Sen. John Thune’s (R-SD) Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act does not specifically mention TikTok or ByteDance, and instead would grant the Secretary of Commerce authority to investigate technology products and services originating in China, Cuba, Iran, North Korea, Russia, and Venezuela. Rep. Michael McCaul’s (R-TX) Deterring America’s Technological Adversaries (DATA) Act would give the President additional powers to block transactions related to the import or export of Americans’ sensitive data that could pose national security risks. Further, Sens. Marco Rubio (R-FL) and Angus King (I-ME) and Reps. Mike Gallagher (R-WI) and Raja Krishnamoorthi (D-IL) also reintroduced the ANTI-SOCIAL CCP Act to ban TikTok and other social media apps which are owned or influenced by China, Russia, and other foreign countries of concern, unless they completely divest of any foreign ownership. Similarly, Sen. Tom Cotton’s (R-AR) bill, the SAFETY on Social Media Act, would sanction “untrustworthy social media services like TikTok that are controlled by China and other adversary nations.”

While most of the previously stated legislations are still under consideration, Montana was the first state to ban TikTok from all devices. The Bill 419 represents Montana’s bold move to protect their residents’ private data and sensitive personal information.

Policymakers from different sides of the aisle have come together to oppose a TikTok ban, and issues surrounding the risks of censorship have led to interesting political alliances. Joining progressive Democrats, like Rep. Alexandria Ocasio-Cortez (D-NY) and Rep. Jamaal Bowman (D-NY), Sen. Rand Paul (R-KY) is one of the latest members to express his opposition to a complete ban. Ocasio-Cortez and Bowman argued that banning TikTok threatens free speech and fails to address the wider problem of data privacy practices on other major tech platforms. Sen. Paul echoed free speech concerns, contending that a ban would violate the First Amendment.

Depending on the form of a ban, legislation could trigger a range of legal challenges. A unilateral ban may violate the Berman Amendments to the International Emergency Economic Powers Act (IEEPA), which seek to protect the free flow of content internationally. Banning TikTok may also trigger First Amendment lawsuits, with TikTok, users, and/or advocacy groups likely to claim that a ban would unduly restrict the right to free expression and the right to access information.

 

TikTok’s Response: Project Texas

TikTok’s primary initiative to ease concerns about China’s access to Americans’ data is “Project Texas,” which involves collaborating with Oracle Cloud, a U.S.-based company that specializes in cloud software for data storage. Under the $1.5 billion restructuring project, specific teams within TikTok’s U.S. subsidiary, U.S. Data Security Inc. (USDS), will house and handle American user data and content moderation decisions on the app, though exceptions for “public data, business metrics, interoperability data, and certain creator data” apply. Oracle will be responsible for hosting TikTok, including its algorithms and content moderation functions, in the United States, essentially acting as a firewall.

Project Texas will also provide the Committee on Foreign Investment in the United States (CFIUS), the federal entity responsible for reviewing foreign investments from a national security lens, more oversight into the data collection and storage practices of TikTok in the U.S. Project Texas gives CFIUS the authority to review the USDS board of directors’ appointees and requires the appointed board of directors to report to CFIUS.

 

TikTok’s Trip to D.C.

TikTok has attempted to create some separation from its Chinese origins, saying 60% percent of ByteDance is owned by global institutional investors such as Carlyle Group. However, these efforts have not deterred policymakers’ interest in learning more about TikTok’s connections to the Chinese government. On March 15, the Biden administration called for the Chinese ownership of the app to divest its stake or risk getting banned, a stricter approach by the White House to addressing national security issues.

On March 23, TikTok CEO Shou Zi Chew testified before the House Energy and Commerce Committee about the app’s relationship with its China-based parent company and the way it handles Americans’ personal data. During the hearing, Republicans and Democrats questioned Chew about TikTok’s content moderation practices, the company’s strategy for safeguarding Americans’ data, and allegations of spying on journalists.

When questioned about whether TikTok employees can spy on or target individuals in the United States, Chew did not provide a straightforward response of “yes” or “no” and ultimately acknowledged that Beijing-based TikTok employees would still have access to U.S. user data until Project Texas is complete. However, he reiterated that, as part of the restructuring process, a digital firewall would prevent Chinese employees from accessing the personal information of Americans.

Notably, Chair Cathy McMorris Rodgers (R-WA) and Ranking Member Frank Pallone (D-NJ) emphasized that a federal consumer data privacy law could help address the concerns that TikTok–and other online platforms–raise. The bipartisan privacy bill that Reps. Pallone and McMorris Rodgers co-sponsored last congress, the American Data Privacy and Protection Act, received almost unanimous support during its committee hearing last year and is expected to be reintroduced at some point this Congress.

 

Conclusion

Some Members of Congress are advocating for aggressive measures, given the extensive security concerns associated with TikTok. Other Members of Congress and advocacy groups worry that banning or heavily restricting TikTok may unduly limit free speech and set a dangerous precedent for future policy actions. Currently, next steps remain unclear.

Regardless of whether Congress continues to consider direct action against TikTok, addressing data privacy and security risks would be a significant step forward. Addressing general data privacy concerns may be most widely supported and effective path forward to mitigate many of the risks that TikTok poses and risks across other online platforms and apps.