President Joe Biden on Wednesday signed a bill that will ban TikTok in the U.S. unless its Chinese parent company, ByteDance, sells the social media platform’s U.S. assets.
The bill is part of a broader $95 billion foreign aid package providing support to Israel, Ukraine and Taiwan.
Under the new law, ByteDance must divest its U.S. operations by Jan. 19, 2025. The U.S. House of Representatives passed similar legislation in March but the bill stalled in the Senate.
FBI Director Christopher Wray told NBC News earlier this week that TikTok is “a national security concern” because the platform is “beholden to the Chinese government.”
“The data, we’re talking about the ability to control or collect data on millions and millions of users, and to use it for all sorts of influence operations, like driving their AI efforts which are not remotely constrained by the rule of law,” Wray said.
Sen. Maria Cantwell (D-Wash.), chair of the Senate Commerce Committee, said, “Congress is acting to prevent foreign adversaries from conducting espionage, surveillance, maligned operations, harming vulnerable Americans, our servicemen and women, and our U.S. government personnel.”
TikTok also has come under fire for its negative influence on children and teenagers, including data collection and other privacy issues.
However, the bill’s language appears to leave room for the U.S. government to do more than just target TikTok and its parent company or address concerns over what content children are exposed to or about their privacy.
Aside from targeting other sites operated by “foreign adversaries,” the bill also gives the government the power to shut down any website “determined by the President to present a significant threat to the national security of the United States.”
Such “threats” are not explicitly defined in the bill.
But critics said lawmakers’ arguments merely mask other intentions underlying the law, including the desire of U.S. intelligence agencies to gain a similar foothold within TikTok as they have attained within U.S.-based social media platforms.
Some critics said they are concerned about the legal precedent a TikTok ban could create.
Tim Hinchliffe, editor of The Sociable, told The Defender he thinks “the attempt to force ByteDance to sell TikTok has little to do with China, the Chinese Communist Party and national security, and everything to do with censorship.”
“With its parent company based in Beijing, TikTok is an easier target to go after and silence than any of the big American tech companies — most of which the government funded through DARPA, the National Science Foundation and universities,” Hinchliffe said.
Austin-based attorney and technology expert W. Scott McCollough told “The Defender In-Depth” earlier this week “The real reason they are doing this isn’t to positively influence or change what social media does to our kids.”
McCollough said:
“Our intelligence services dislike TikTok because they do not control TikTok like they do the social media platforms that were grown here in the United States, the Facebooks and all of the others.”
Andrew Lowenthal, CEO of digital rights and civil liberties organization Liber-net, told The Defender, “I think it’s hard for me to believe that the explicit reasons being provided are the real reasons, given the information environment we’re in and the level of manipulation we’re seeing.”
Lowenthal added:
“I don’t think it’s unreasonable to assume there are risks from a Chinese-owned app in the same way that I’m sure lots of other countries see risks from an American-owned social media platform operating in their country.
“The question is, what are the real reasons? Can we trust the people bringing up the legislation? Is this thing going to open up other dangers that might risk censorship on other platforms?”
Cato Institute analysts Paul Matzko and Jennifer Huddleston said Congress opted for “the most extreme regulatory option on the table instead of adopting intermediate measures that could have addressed concerns about data surveillance and algorithmic manipulation.”
Reuters and CNN reported that TikTok is considering legal action against the U.S. government to challenge the law. In a video posted to TikTok, CEO Shou Zi Chew said:
“Rest assured: We aren’t going anywhere. We are confident, and we will keep fighting for your rights in the courts. The facts and the Constitution are on our side and we expect to prevail.”
Move to force sale of TikTok an effort to ‘control narratives’
According to CNN, if ByteDance doesn’t sell TikTok within 270 days, TikTok will be barred from accessing U.S. app stores and “internet hosting services.” The deadline can be extended for another 90 days if “progress” is made toward a sale.
Finding a buyer may not be easy, experts told Reuters. Even if ByteDance could find a buyer with the financial resources, it’s unclear whether China and U.S. government agencies would approve a sale.
The platform is worth anywhere from $20 billion to $100 billion, The Wall Street Journal reported.
Efforts to ban TikTok in the U.S. began in 2020, when then-President Donald Trump attempted, through an executive order, to ban the platform and Chinese-owned WeChat.
This effort was blocked in court. In 2022, Biden signed legislation barring U.S. government employees from using TikTok on government phones.
According to Reuters, in November 2023, a Montana judge struck down a state ban on TikTok, on the basis of free speech grounds.
TikTok is set to challenge the new law on First Amendment grounds and TikTok users are expected to take legal action again.
Lawyer and tech expert Greg Glaser told The Defender that aside from the perceived threat China poses, geopolitics of a different sort may have played a role in the new bill’s passage.
“The political will for the TikTok ban happened immediately after the Israel-Palestine killings in October 2023, when it was revealed that young people overwhelmingly support Palestine, by about 10 to 1.”
Hinchliffe made a similar observation. “Notice how this piece of legislation was lumped together in an aid package for Israel, Ukraine, and Taiwan? I think the move to ban TikTok may have something to do with trying to control narratives surrounding those countries and conflicts in the short term, along with any others that may come in the future,” Hinchliffe said.
According to CNN, a potential obstacle in the way of a TikTok sale “is that TikTok’s parent is subject to Chinese law,” with the Chinese government “on record opposing a sale.”
CNN noted that China has imposed export controls governing algorithms, which may prevent TikTok’s algorithms being included in a potential sale.
‘There’s no national security exception to the First Amendment’
CNN reported that “TikTok’s looming legal challenge will be one of several that could eventually reach the U.S. Supreme Court that could completely redefine online speech,” alongside other high-profile First Amendment free speech cases.
The U.S. government may have difficulty defending the law. CNN quoted legal scholars, who argued the government has only a “very narrow argument to stand on to force the sale.” Some scholars argued the argument with the best chance of success for the U.S. government would be the national security argument.
Hannah Bloch-Wehba, associate professor of law at Texas A&M University, told Wired that courts are occasionally more lenient toward arguments of national security.
But Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said, “There’s no national security exception to the First Amendment. Creating such an exception would make the First Amendment a dead letter.”
And Jenna Leventoff, senior policy counsel at the American Civil Liberties Union, told Wired that the new law is “nothing more than an unconstitutional ban in disguise,” with “devastating consequences for all of our First Amendment rights.” She noted the law “will almost certainly be struck down in court.”
Experts: Intelligence agencies want access to TikTok
According to Reuters, last week, Apple said China had ordered it to remove Meta Platforms’ WhatsApp and Threads from its App Store in China over Chinese national security concerns.
Lowenthal said, “It’s not uncommon, in a sense, for other countries — maybe not so much the U.S. — to have these sorts of restrictions on foreign ownership of what they might consider sensitive industries or even foreign ownership of land and property in those countries. But it’s not something we’re used to seeing from the U.S.”
McCollough told The Defender:
“If the U.S. can force TikTok to divest and sell to U.S.-controlled actors, doesn’t that mean the European Union can force Google or Meta or X to divest and sell to EU controlled actors? Will this lead to divestiture of all Big Tech into country-specific owned entities?”
For McCollough though, the real rationale behind the law is to force a sale of TikTok to a U.S.-owned entity that will give intelligence agencies access to the platform.
“They’re making them sell to somebody controlled by the United States and even more specifically the United States Intelligence Services, so that those are going to be the ones in control,” McCollough said. “They don’t like TikTok because they can’t control TikTok. That’s the problem.”
Hinchliffe said, “It seems to me that the U.S. government and the whole censorship-industrial complex would’ve liked to work with TikTok on controlling narratives, just like they’ve done with American platforms that they funded, but since they couldn’t do that, they’re doing the next best thing for themselves and that is to ban TikTok or sell it to someone they can control.”
McCollough told “The Defender In-Depth” that the new law “gives extraordinary power” to the president to deem virtually any entity, whether social media or not, a foreign threat and thereby allowed the takeover and control of them.”
“This is all just another effort by the current administration, which is in cahoots with all of these other organizations to begin to institute a top-down totalitarian one-world government to control the information flow,” McCollough added.
McCollough also said he was “not interested in defending TikTok’s — or any other platform’s — ‘First Amendment rights,’” but is instead “interested in regular people’s rights.”
“What is paramount is the people’s right to speak and have access to the speech of others. That is what I care about,” he said.
