TikTok offices in Menlo Park, California. Shutterstock.
The US House of Representatives passed a bill on Saturday that would force ByteDance, the Chinese company that owns TikTok, to choose between forcing it to stop selling the app or banning it. The Senate is expected to take up the matter today. If passed by the Senate, President Joe Biden has indicated his intention to sign the bill into law. Before that happens, lawmakers must provide the public with far more detailed information than they have provided so far about the nature of the national security threat that is allegedly driving them to rush to act against the digital media app used by 170 million Americans.
TikTok: Chinese weapons?
Lawmakers who support action against TikTok say the intelligence case is clear: The app is a data security threat and a vehicle for Chinese propaganda. Senators recently received classified briefings on the subject and appear to find the evidence compelling. For example,
Sen. Mark Warner, chairman of the Senate Intelligence Committee and host of the closed-door briefing, said last month, “If you don’t believe that the Chinese Communist Party can manipulate algorithms to make the news reflect their views, then you don’t understand the true nature of the threat.” He added that TikTok is perhaps “the most powerful propaganda tool of all time.” Sen. Warner and his Republican colleague on the Intelligence Committee, Sen. Marco Rubio (R-Fla.), issued a joint statement in support of the House bill. Senate Minority Leader Mitch McConnell (R-Ky.) said earlier this month that TikTok is “a tool for surveillance and propaganda” and “an issue that Congress must urgently address.” He said, “requiring Beijing-influenced entities to divest from TikTok would be entirely consistent with established constitutional precedent.” Sen. Eric Schmitt (R-Missouri) called the Senate intelligence briefing “disturbing” and said China’s “tracking capabilities, spying capabilities are shocking… I think we have to come to the realization that China is a brutal dictatorship with concentration camps inside its borders and is bent on world domination.” After the briefing, Sen. Brian Schatz (D-Hawaii) said, “I’m not wavering anymore. I think we have to get this done, whether it’s the House version or whatever we have to negotiate as adults.” He added, “I’m satisfied that this is not a fictional story, this is a real national security concern.”
That’s a scary story, but most of the publicly available information about this threat is merely hypothetical, at least according to key intelligence leaders.
At a March 2023 hearing of the House Armed Services Committee’s Subcommittee on Cyber, Information Technology, and Innovation, General Paul Nakasone, head of the National Security Agency and U.S. Cyber Command, and John Plumb, assistant secretary of defense for space policy and principal cyber adviser to the secretary of defense, noted only hypothetical risks from TikTok. Plumb referred to TikTok as a potential threat vector, and said Nakasone had “concerns” about the app. At a March 2024 House Intelligence Committee hearing, Avril Haines, director of the Office of the Director of National Intelligence, was asked by Rep. Raja Krishnamoorthi (D-IL) whether China could use TikTok as a platform to influence the 2024 election, to which Haines replied, “We cannot rule out the possibility that the Chinese Communist Party could use it.” Also, at the Senate Intelligence Committee’s hearing on global threats in March, Senator Rubio asked FBI Director Christopher Wray about TikTok. Senator Rubio presented the FBI Director with a series of threats that TikTok could pose, which Director Wray agreed were plausible. However, he offered little direct evidence and suggested that the difficulty with the tactics that Senator Rubio fears is that “they are very hard to detect, which is part of what makes the national security concerns that TikTok represents so significant.”
In fact, these tactics seem so hard to detect that no one seems to have detected any for sure. So far, there is little evidence that TikTok is a conduit for Chinese influence over Americans more than other major social media platforms. And when it comes to surveillance, lawmakers and TikTok’s critics often point to Chinese laws that would require the company to hand over Americans’ data to Chinese intelligence. Few seem satisfied with ByteDance’s claims that it has built a firewall between itself and TikTok’s data (it has dubbed it “Project Texas”).
But there is no indication that TikTok data, whether purchased or scraped, is any more useful to Chinese intelligence than other personal information that abounds on the internet. In light of this reality, the House unanimously passed another bill just over a week after the initial vote on the TikTok bill. This bill would make it unlawful for a data broker to provide certain personally identifiable and sensitive data of individuals residing in the United States to North Korea, China, Russia, Iran, or any entity controlled by these countries. Relatedly, the Biden administration issued an executive order in March 2024 authorizing the Department of Justice (DOJ) and other federal agencies to take steps to block “large-scale transfers of personal data of U.S. persons to countries of concern.” These policies, along with tougher restrictions on data collection by all technology platforms, would more directly address the very real threat that foreign governments will have access to personal data and information of U.S. persons.
Legal challenges have already been filed
But one thing is certain: if the bill becomes law, it will be challenged on First Amendment grounds. Speaking at an event at Harvard’s Berkman Klein Center for Internet and Society, Georgetown University law scholar Anupam Chander predicted the case would make it all the way to the Supreme Court. The First Amendment argument is almost self-evident.
“We think the appropriate standard is actually even higher than strict oversight,” Jenna Leventoff, senior policy counsel at the American Civil Liberties Union (ACLU), said at the Harvard event. “This is prior restraint. It’s blocking the speech of 170 million Americans before they have a chance to say anything. This is the most strict form of speech regulation that can be implemented.”
Something like a foreshadowing of this happened in Montana last year. In May 2023, the Governor of Montana signed a bill (SB 419) banning TikTok from operating within the state’s jurisdiction. In response to this law, TikTok filed a complaint in federal court against the Montana Attorney General, challenging its constitutionality. The complaint argued that “the ban restricts free speech in violation of the First Amendment, violates the U.S. Constitution in many other respects, and is preempted by federal law.” In November 2023, U.S. District Judge Donald W. Molloy ruled in favor of TikTok and issued a preliminary injunction blocking the law from taking effect.
In assessing the First Amendment claims in the TikTok case, the judge found that “even applying interlocutory scrutiny, the state has failed to demonstrate that SB 419 is constitutionally permissible.” According to the ruling, “to pass interlocutory scrutiny, a law must demonstrate both ‘advancement’ and ‘advancement.'”[] Important government interests unrelated to the suppression of free speech[,] “It does not burden speech more than is necessary to further those interests…” and “reserves sufficient alternative avenues for the communication of information….” Overall, the court found that the law “is not narrowly limited and does not leave alternative avenues for the communication of targeted information.” Moreover, given other means by which the Chinese government collects data from Montana residents, the court found that the ban does not alleviate data security concerns or “direct and significant harm.”
For the federal government to have any hope of defending the bill lawmakers are trying to pass, it will need to prove potential national security risks in much more detail than it has done in the past. Lawmakers therefore have an obligation to demand the declassification and urgent release of as much information as possible related to TikTok and its possible use as a tool by the Chinese government. The public is entitled to more than just hypotheses, and ultimately the courts will demand details.
According to NPR, Senator Warner told reporters in March that he supports declassifying some of the analysis conveyed in intelligence briefings provided to senators. Perhaps things didn’t move along the timeline the Senate expected. Senator Schumer had suggested that the Senate would move things slowly after the House passed the initial bill before combining it with military aid that House Speaker Mike Johnson would make sure to pass. But now there is a limited time to declassify the information. The public should see it before the bill reaches the president’s desk.
resource:
TikTok and National Security. Dr. Milton L. Mueller and Dr. Karim Farhat, Internet Governance Project, School of Public Policy, Georgia Institute of Technology. (January 8, 2023)Lawmakers say TikTok is a national security threat, but the evidence remains unclear. Brian Fan, CNN (March 21, 2023)TikTok: Recent data privacy and national security concerns. Congressional Research Service (March 29, 2023)TikTok: Hate the game, not the players. Rose Jackson, Seth Stodder, Kenton Thibault, DFRLab (February 14, 2024)TikTok and National Security. James Andrew Lewis, Center for Strategic and International Studies (March 13, 2024)
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