The Media Today

Will Congress succeed in banning TikTok?

April 18, 2024
Solen Feyissa, CC BY-SA 2.0, via Wikimedia Commons.

For almost four years, Congress has been talking about banning TikTok. Early last month, that talk seemed suddenly to turn into action: the House of Representatives brought forward a new bill—the Protecting Americans from Foreign Adversary Controlled Applications Act—that would force ByteDance, the China-based owner of TikTok, to either sell the company or see the app banned in the US. In his Platformer newsletter, Casey Newton described the legislative push as “fast-moving.” The Wall Street Journal described it as “hurtling towards a vote.” 

The House quickly did vote, 352–65, to pass the sale-or-ban law. But then the fast-moving effort seemed to stop hurtling and get stuck in quicksand. What happened? In a word, the Senate. Although some senators said that they supported the ban and wanted it passed, there appeared to be a lack of consensus in the chamber. As Newton noted in an update to his previous post, Chuck Schumer, the Senate majority leader, mentioned the possibility of a TikTok bill recently, but only in the context of a letter identifying a long list of other priorities, including online safety legislation for children and a child tax credit. Mitch McConnell, the minority leader, called on his colleagues to take action on TikTok, saying the matter requires “urgent attention.” But many of his colleagues didn’t seem convinced that urgent action, or in fact any action, was necessary.

Maria Cantwell—a Democrat who chairs the Senate Commerce Committee, which would have to approve any Senate version of the House bill—said recently that she doesn’t think the current legislation can withstand a legal challenge. (Senator Rand Paul, a Republican, also expressed concern that it would be struck down by the courts.) Cantwell said that the legislation is flawed because the executive branch, rather than Congress, should decide whether something constitutes a security threat. Cantwell proposed alternative legislation that would set up a process allowing the White House to make such decisions. But Punchbowl News pointed out that her bill didn’t have a Republican cosponsor, limiting its prospects.

Cantwell has said that she believes in a TikTok ban, but other senators seemed concerned that her stalling would endanger the chances of getting legislation in front of President Biden before Congress grinds to a halt because of the election. “Historically, the Commerce Committee is where this stuff goes to die,” Senator Josh Hawley told the Wall Street Journal. But there were still some options for getting a TikTok bill to the floor for a vote. It could, for example, have been attached to legislation reauthorizing the Federal Aviation Administration, which must pass by May 10. There were reports that the House might try to pass a different TikTok ban as part of a broader package of legislation for the same reason.

Yesterday, Mike Johnson, the Speaker of the House, said that he intends to package the TikTok ban with bills that would provide aid to Ukraine, Israel, and Taiwan. According to the New York Times, this version of the legislation would extend the amount of time that TikTok has to find a buyer, which Cantwell had advocated; in a statement, she said she supported the bill. Packaging it with the urgent foreign-aid provisions could “force the Senate’s hand,” the Times notes, with one analyst describing the move as “a bit of brinkmanship.” At time of writing, it was unclear what would happen next.

But challenges to the idea of a forced sale or ban remain even under this accelerated timeline. If TikTok does still manage to avoid being banned, it likely wouldn’t come as a surprise to anyone who has been watching its fortunes over the past few years. In 2020, Donald Trump issued an executive order saying that the app and its ties to China constituted a “national emergency” and pressuring Congress to come up with legislation to force a sale or ban. The courts struck down the order, however. And Trump, for his part, recently reversed his position on TikTok, saying that a ban would only help Facebook and Mark Zuckerberg, the CEO of Meta, whom Trump referred to as “Zuckerschmuck.”

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Pressure on Congress to do something about TikTok continued even after Trump’s order was quashed. But as lawmakers debated an outright ban through 2020 and into 2021, the company tried to assuage concerns about its ties to the Chinese government in a number of ways. It started discussions with several potential investors—including Oracle, the corporate software maker, and Walmart—about a deal that would have reduced Chinese involvement with the company and ushered in majority American ownership. In addition, it launched an initiative called Project Texas, which was designed to keep the data of US users separate from the rest of TikTok’s user base, and to house all of that data on servers based in the US rather than China.

A year ago, some observers felt that the clock was finally running out on TikTok after the Committee on Foreign Investment in the United States, a government body that reviews overseas investment on national security grounds (whose work we covered in this newsletter last year), gave ByteDance what appeared to be an ultimatum to sell the app to American interests or be banned. But that precipice started to recede as TikTok lobbied the committee aggressively, arguing that a combination of Project Texas and other efforts should quell government fears about Chinese government involvement. Under one arrangement, Oracle started to monitor the behavior of TikTok’s recommendation algorithms to ensure that they were not improperly influencing American users.

TikTok has maintained that it never shares US data with the Chinese government, that there is a firewall between its US and Chinese management, and that its recommendation algorithm is not influenced by China. In testimony before the House Energy and Commerce Committee last year, Shou Zi Chew, the CEO of TikTok, said that ByteDance “is not an agent of China or any other country.” Critics, however, have pointed to numerous reports of ongoing contact between American TikTok staff and those in China; this week, a report in Fortune quoted almost a dozen former staffers who said that such discussions were routine. Some have also argued that Chinese government influence was responsible for TikTok’s apparent removal of content related to the 1989 Tiananmen Square massacre and recent pro-democracy protests in Hong Kong.

Either way, various observers believe that if legislation banning TikTok were to be passed by Congress, it would run headlong into a significant roadblock called the First Amendment. In a recent piece for CJR, Seth Stern, a First Amendment lawyer and the director of advocacy for the Freedom of the Press Foundation, wrote that advocacy for a TikTok ban “forgets the lessons of the Pentagon Papers,” the seminal Supreme Court case that, as Stern put it, “established that ‘national security’ isn’t a magic word that nullifies the First Amendment” without hard proof that there is some imminent danger. The government is not allowed to pass legislation banning things “just in case,” Stern wrote.

And some experts argue that a forced sale of TikTok would not be much of a solution either. Meredith Whittaker, a security expert and the CEO of Signal, a secure messaging app, wrote recently that replacing a Chinese-owned social networking app with one controlled by American billionaires shouldn’t be seen as a win, since it would just replace one surveillance-oriented app with another. Whittaker also said that she could see no evidence that the House bill would offer any kind of meaningful privacy protection from China. Experts including Eric Goldman, a law professor at Santa Clara University, meanwhile, have pointed out that if the government gains the ability to ban TikTok, there’s no reason to believe that the same kind of legislative rationale won’t be used to ban other apps in the future.

A number of individuals and entities have reportedly expressed interest in acquiring TikTok if a sale were to happen: Steven Mnuchin, who was treasury secretary under Trump, is said to be interested in forming an investment group to acquire the company, and there have been reports that Bobby Kotick, the former CEO of the gaming company Activision Blizzard, held talks with Zhang Yiming, the cofounder of ByteDance, about a potential acquisition. (Zhang has denied this.) But there is at least one major hurdle standing in the way of such a deal: after Trump issued his executive order in 2020, the Chinese government passed a law requiring government approval of any sale of “sensitive” technology to a foreign entity, a requirement that applies to content recommendation algorithms such as TikTok’s.

Biden, for his part, has clearly signaled that he will sign the TikTok bill if it reaches his desk. But even his political incentives are scrambled: as Cameron Joseph reported recently for CJR, many young Americans get their news from TikTok and Biden desperately needs their votes—to such an extent that his campaign is now itself on TikTok. When it comes to efforts to regulate the app, nothing is as easy as a 352–65 vote might suggest.

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Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.