TikTok is one step closer to being effectively banned on mobile devices in the U.S, though an outright prohibition still faces significant hurdles.
A House committee voted along party lines on Wednesday to advance a bill to block U.S. activity on the popular Chinese-owned video app used by more than 100 million Americans. The measure was forced through by Republicans on the committee over opposition from Democrats, who said that the legislation has not been properly vetted and that it could ensnare U.S. businesses that don’t pose a national security risk.
Before the vote, it appeared that the gap between Democrats and Republicans over TikTok’s threat to the U.S. was diminishing. Democrats have increasingly been supporting measures to take action against the social media app, with the White House on Tuesday giving all federal agencies 30 days to delete the app from government devices and a member of the Senate Judiciary subcommittee on privacy calling for the separation of TikTok from its Chinese parent company. Wednesday’s vote in the House Foreign Affairs Committee represents a split between both sides in the severity and speed of measures that should be taken.
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Democrats, for now, are on TikTok’s side concerning a national ban. That will have to change for the bill to pass the Senate.
“Everybody knows what TikTok is,” said committee Chair Michael McCaul, R-Texas, on Tuesday when the measure was being considered. “It’s too dangerous to be on our phones as members of Congress. In my judgment, it’s too dangerous to be on our childrens’ phones. That’s the whole point of this bill.”
The legislation directs the Treasury Secretary to issue a directive prohibiting Americans from engaging transactions with entities that could transfer sensitive personal data to entities directed or influenced by the Chinese government. It also empowers the President to impose sanctions on certain transactions relating to connected software applications controlled by entities that could facilitated China’s intelligence, censorship or surveillance activities, including efforts to steer U.S. policy and regulatory decisions. Under the bill, the president can waive certain sanctions and make a decision on whether TikTok or any of its affiliated companies meet the criteria for sanctions.
There’s no evidence that the Chinese government has demanded American user data from TikTok or parent company ByteDance or influenced the content users see on the platform.
In a statement, TikTok spokesperson Brooke Oberwetter said that a “U.S. ban on TikTok is a ban on the export of American culture and values to the billion-plus people who use our service worldwide.”
“We’re disappointed to see this rushed piece of legislation move forward, despite its considerable negative impact on the free speech rights of millions of Americans who use and love TikTok,” she added.
The bill could violate the First Amendment. In a letter sent on Monday, The American Civil Liberties Union detailed constitutional concerns with the measure.
“In a purported attempt to protect the data of U.S. persons from Chinese government acquisition, this legislation will instead limit Americans’ political discussion, artistic expression, free exchange of ideas — and even prevent people from posting cute animal videos and memes,” wrote ACLU federal policy director Christopher Anders. “While the ACLU’s opposition today rests on free speech harms, we note that with more time to review this legislation, we anticipate finding other sweeping implications.”
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The ACLU also took issue with the legislation creating a loophole to the Berman Amendment, which removes the president’s authority to regulate the exchange of cultural goods between the U.S. and hostile nations. It said that the bill creates a “slippery slope” that could “leave U.S. residents without some of their favorite international books, movies, and artwork.”
TikTok in 2020 successfully argued that the former president’s effort to force a sale of the company to a U.S. firm violated the Berman Amendment.
In another case dealing with a ban on a Chinese-owned app because of national security concerns that same year, a federal judge blocked a government directive requiring Apple and Google to remove Tencent’s WeChat from their app stores. U.S. Magistrate Judge Laurel Beeler found that the order could infringe on users’ First Amendment rights by making the app unusable.
Anupam Chander, a professor of law and technology at Georgetown University, told The Hollywood Reporter that “there are other ways to protect American data than to ban an app because it is foreign-owned.”
“We shouldn’t borrow the Chinese strategy of banning foreign information apps like Twitter and Facebook,” he added. “Banning TikTok would prove the Chinese right in banning our apps. The strength of our democracy is its openness.”
The US Committee on Foreign Investment, which reviews business dealing that may be a threat to national security and is empowered to force TikTok to sell to a U.S. company, is currently reviewing ByteDance’s 2017 merger of TikTok and Musical.ly. In August, TikTok proposed to permit ByteDance to continue owning the app in a deal that would silo U.S. user data and restrict access by employees in China.
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