by Jacob Fischler, Daily Montanan
April 18, 2023
As TikTok has mushroomed to more than 150 million monthly U.S. users, so have warnings among both state legislators and members of Congress about its potential danger as a tool of the Chinese government.
Dozens of states and the federal government this year banned public employees from downloading the popular app on their government devices. But the Montana Legislature went further and on Friday passed the nation’s first statewide ban, though GOP Gov. Greg Gianforte has not yet signed the measure and it’s not clear how it would be enforced. If it becomes law, it would go into effect on Jan. 1.
Members of both parties in a U.S. House hearing in March told TikTok CEO Shou Chew they were considering a total, nationwide ban. That idea has raised a slew of objections, not the least of which is how banning an app that provides a platform for speech could be consistent with the First Amendment.
Below are answers to five common questions about the debate in the nation’s capital.
Why does Congress want to ban TikTok?
Members of both parties have expressed concerns about TikTok’s data collection practices and its ties to the Chinese Communist Party.
Chew said the data TikTok collects from users is no different from those of other platforms, including domestic products like Instagram. TikTok is based in Singapore and Los Angeles, Chew said. The product is not even available in China, whose ruling Communist Party does not offer the same guarantees of free speech as the U.S. Constitution.
But lawmakers say TikTok is unique because the Chinese government could compel the company to provide its user data.
TikTok’s parent company, ByteDance, is Chinese, and is beholden to laws that require private companies to provide information to Chinese authorities, lawmakers have said.
“The CCP’s laws require Chinese companies like ByteDance to spy on their behalf,” Cathy McMorris Rodgers of Washington, the chairwoman of the U.S. House Energy and Commerce Committee, told Chew during the March 23 hearing. “That means any Chinese company must grant the CCP access and manipulation capabilities as a design feature.”
Attempts to ban TikTok are also part of a trend of lawmakers seeking to appear tough on China. U.S. House Republicans created a select committee this year to respond to China’s rising power. And members of both parties have voiced support for restrictions on foreign ownership of farmland, mainly targeting China.
What proposals have the most support?
There are leading contenders from a host of options in each chamber of Congress.
In the Senate, 13 Democrats and 13 Republicans have signed on to support the RESTRICT Act, written by Virginia Democrat Mark Warner and South Dakota Republican John Thune. Jake Sullivan, a high-ranking national security official in President Joe Biden’s White House, applauded the measure.
The bill would authorize the secretary of Commerce to ban applications from six adversarial countries, including China.
But key senators, including the chair and ranking member of the Senate Commerce, Science and Transportation Committee and floor leaders of each party, have not signed on.
Civil libertarians on both the far left of the Democratic Party and the far right of the Republican Party have voiced their disapproval, Jenna Leventoff, senior policy counsel at the American Civil Liberties Union, said in an interview.
The bill also lacks support from some senators who favor TikTok bans.
Missouri Republican Josh Hawley, the sponsor of another bill to explicitly ban TikTok, said in a March 29 tweet that the Warner-Thune measure does not go far enough.
“The problem with the RESTRICT Act is — it doesn’t ban TikTok,” he wrote. “It gives the President a whole bunch of new authority and does nothing to stop the CCP. Just ban TikTok.”
In the House, the Foreign Affairs Committee approved a bill by its chairman, Texas Republican Michael McCaul. But no Democrats voted for the measure in committee. A party-line vote could send the measure through the House, but it would need bipartisan support to pass the Senate.
How would the bans work?
It’s not entirely clear, but a ban would likely involve blocking companies like Apple and Google from offering TikTok in their app store.
The two leading bills would take different regulatory approaches — the Senate version would go through the Commerce Department, while the House bill provides authorities to the Treasury Department, for example — but users would likely see similar effects under either.
Mobile device makers can approve or reject applications from appearing in app stores. Removing TikTok from those sources would keep users from downloading the app. Those who already have the app on their devices would see its usability decrease over time as updates could not be installed.
But the technical uncertainty about how exactly a ban would play out was among the Democratic criticisms of the House bill.
“We’re being asked to rush this bill through committee with no input from sanction experts, technologists, the business community or even the regulatory agencies who would be in charge of enforcing a ban,” Arizona Democrat Greg Stanton said at a March 1 markup of the bill.
Rhode Island Democrat David Cicilline said he was sympathetic to the national security concerns, but said the measure was “not well-written” and lacked “definitions about critical components.”
“There is broad and maybe universal support on this committee to do exactly what this bill intends to do, but this is incredibly important that it be done right,” Cicilline said. “We all want very much to give the administration the tools that it needs, but in its current form — without a lot of amplification and a lot of definitions — it’s difficult for me to support this.”
Didn’t Trump already try this?
Former President Donald Trump did issue an executive order in 2020 under the International Emergency Economic Powers Act, or IEEPA, to ban TikTok, citing many of the same concerns members have recently brought.
A federal court struck down that order because under the law he cited, the president did not have authority to ban the app. Amendments to that law, enacted in 1988 and 1994, prevented presidents from regulating “information and informational materials,” such as books, movies or digital media.
The judge did not rule on the First Amendment concerns.
The Thune-Warner bill was written specifically to make such an order compliant with the IEEPA.
“The RESTRICT Act responds to foreign-adversary technology threats of today by giving the force of law to former President Trump’s nearly identical effort, and it prepares for the threats of the future so the United States isn’t forced to play Whac-A-Mole every time a platform like TikTok rears its ugly head,” Thune said in a statement.
Is any of this constitutional?
That will be the subject of debate.
In a March 29 response to Hawley’s Senate floor speech, Kentucky Republican Rand Paul said proposals to ban an app that fostered free expression mirrored China’s own TikTok ban.
The First Amendment protects even unpopular speech. Hawley’s bill to ban the app would violate the free speech rights of both the owners of TikTok, some of whom are American, and the app’s users, he said.
“Do we really want to emulate Chinese speech bans?” Paul said. “We don’t ban things that are unpopular in this country.”
Hawley responded that the First Amendment did not protect espionage, which he said TikTok enabled the Chinese government to conduct.
A complete ban can only be consistent with the First Amendment if it is a response to immediate and significant harm and there is no less restrictive way to respond, Leventoff said.
“That test is not going to be met,” she said. “We don’t have any evidence of an immediate and significant harm. And even if we did have that evidence, it’s hard to argue that banning TikTok is the least restrictive solution.”
While TikTok is sometimes described as a platform where young users share dance videos and other unserious content, political speech is also plentiful on the app, Leventoff said, making a nationwide ban even more dangerous from a free speech perspective.
“We view this as an extremely important component of speech,” she said.
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