TikTok For Good … Or TikTok Goodbye

Could Congress come together to ban or limit TikTok in the United States?

Those of us who live in the D.C. area may have noticed the recent appearance of a bevy of TikTok television spots. The ads feature entrepreneurs who have used the platform to expand their businesses and help their communities. The ads are accompanied by a portal on TikTok’s website that allows people to share how they use “TikTok for Good.”

TikTok now has more than 150 million subscribers in the United States – nearly half of the entire population. If attracting new users to the platform isn’t the goal of this significant advertising effort, what is?

Make no mistake: these ads are not meant to draw new consumers or budding entrepreneurs. They are directed toward U.S. regulators and lawmakers who are eager to rein in the tech giant, which is owned by the Chinese firm ByteDance.

What is the status of these efforts, will they pass legal muster, and what could they indicate more broadly about Washington policymakers’ ability to regulate, or even ban, some technology platforms? We will take a look this week, but first, let’s take a look at how Americans feel about TikTok.

Americans Worried About TikTok And Support A Ban

Federal policymakers’ efforts to curtail TikTok come at a time when Americans are increasingly concerned about teen mental health and the impact social media platforms like TikTok have on young people and their emotional well-being.

Based on teens’ use of TikTok, these fears may be well-founded. According to a Financial Times report, nearly half of U.S. teens have reported they are on TikTok several times a day or “almost constantly.” That self-reported usage is higher than it is for SnapChat, Instagram, and Facebook.

Additionally, a recent Common Sense Media survey found teens who are experiencing symptoms of depression are more likely to say their lives would improve if they did not have access to social media apps. For example, that poll found 34 percent of respondents reporting severe depression said their lives would be better without TikTok. Only 29 percent said their lives would be worse.

Americans and their representatives in Washington are worried about TikTok for another reason too: national security. Because TikTok’s parent company is Chinese-owned, and in the wake of the recent spy balloon diplomatic kerfuffle, policymakers are concerned about surveillance and other potential invasions of privacy and communications. According to a NPR/PBS NewsHour/Marist poll released last week, 35 percent of U.S. adults say TikTok is a major threat to national security. Another 38 percent said the platform poses a minor threat. Less than one-quarter of respondents, 23 percent, said TikTok poses no threat to national security.

These voters also said they want Congress to take serious action against TikTok. In fact, 57 percent said they would support a federal ban on TikTok. (And yes, that means that at least some current TikTok users offered that they would support a ban.) That number included 48 percent of Gen Z and Millennials respondents.

The Pew Research Center also found half of Americans would support a TikTok ban. It noted support for a ban is higher among Republicans and independents who lean toward the GOP than among Democrats and is particularly high among conservative Republicans.

One reason support for a ban might be so high is that Americans do not trust Chinese social media companies. In fact, 88 percent said they have little or no confidence in Chinese social media firms to actually follow what their stated privacy policies say about how the firms will handle consumers’ personal information. A large majority, 87 percent, also do not believe Chinese social media companies will use their personal information in ways that they (the consumers) feel comfortable with. That number included 58 percent of respondents who said they have no confidence at all in these companies to handle their data.

What Washington Wants To Do With TikTok

U.S. government workers are already banned from having TikTok on their devices, but some lawmakers want to go further. Much further.

In January, Sen. Josh Hawley (R-Mo.) introduced legislation, the No TikTok on United States Devices Act, which would prohibit the TikTok app from being downloaded on any U.S. device and would ban commercial activity in the U.S. with TikTok’s parent company, ByteDance.

“TikTok poses a threat to all Americans who have the app on their devices,” Sen. Hawley said. “It opens the door for the Chinese Communist Party to access Americans’ personal information, keystrokes, and location through aggressive data harvesting. Banning it on government devices was a step in the right direction, but now is the time to ban it nationwide to protect the American people.”

Some Democrats have sounded open to the idea of a ban, but not all members of the party are on board.

In fact, progressive lawmakers in the U.S. House, like Reps. Jamaal Bowman (N.Y.), Alexandria Ocasio-Cortez (N.Y.) and Ilhan Omar (Minn.), all have raised objections to an outright ban on TikTok. Rep. Ocasio-Cortez even posted a video on TikTok voicing her opposition to the ban. Rep. Bowman said, “The First Amendment gives us the right to speak freely and to communicate freely and TikTok as a platform has created a community and a space for free speech for 150 million Americans and counting.”

Instead of banning TikTok, these lawmakers want Congress to implement industrywide standards and regulations that would address data privacy concerns on all social media platforms. That prescription is easier said than done, of course. Congress has been debating data privacy for well over a decade and it is still unclear when – or if – the parties might come together to craft a bill that could pass both chambers.

The progressive Democrats were joined last week by a strange bedfellow. Libertarian-leaning Sen. Rand Paul (R-Ky.) blocked an attempt by Sen. Hawley to fast track his TikTok ban legislation in the Senate. Sen. Paul warned the ban would set a bad precedent and could allow Congress to ban other online platforms. Sen. Paul said his fellow Republican lawmakers were trying to “emulate” China’s speech bans and, politically, voiced concerns that his party would lose younger voters if they implemented the ban.

Despite opposition from some Democrats and Sen. Paul, Rep. Pete Aguilar (D-Calif.), who leads the House Democratic Caucus, told reporters he thinks a potential ban of TikTok is still a serious possibility.

Will TikTok Survive?

Still, the inside-the-Beltway publication The Hill said Congress is unlikely to approve an outright ban on TikTok. (Other analysts disagree. In fact, according to MarketWatch, some analysts are 90 percent certain TikTok will ultimately be banned in the United States.)

More likely, according to The Hill, is that lawmakers will approve the bipartisan Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act, which does not target TikTok specifically, but would give the executive branch – specifically, the U.S. Department of Commerce – the power to regulate or ultimately ban technology linked to foreign adversaries, “including but not limited to China and TikTok.” More than a quarter of the U.S. Senate has signed on as co-sponsors of the RESTRICT Act.

The White House supports the legislation, but the American Civil Liberties Union (ACLU) has raised concerns about it.

“The Senate bill would ultimately allow the Commerce Secretary to ban entire communications platforms, which would have profound implications for our constitutional right to free speech,” said ACLU senior policy counsel Jenna Leventoff. “If the Secretary uses this newfound power to ban TikTok or other communications platforms without evidence of overwhelming, imminent harm, it would violate our right to freedom of expression.”

President Biden also could try to ban TikTok, but he would likely run into legal challenges — which is exactly what happened when former President Donald Trump tried to go after TikTok in 2020 via executive order. Facing legal challenges, President Biden withdrew President Trump’s executive order. He replaced it with on calling on the Committee on Foreign Investment in the United States (CFIUS) to review TikTok operations. (As The Hill explained, CFIUS is an interagency committee that can review certain transactions involving foreign investments in the United States and can push foreign companies to sell their holdings of U.S. companies and block potential foreign acquisitions of U.S. firms.)

No matter what action federal policymakers take against TikTok, however, the courts are likely to become involved somehow.

Aram Sinnreich, a communications professor at American University, told The Hill, a ban would be “an enforcement nightmare” and “would have broader sweeping implications for other capacities for government intervention, which has free speech and free trade implications.”

Timothy H. Edgar, a lecturer at Harvard Law School who advised President Barack Obama on cybersecurity policy and privacy issues, said this issue could take years to settle. Edgar told Harvard Law Today, that lawmakers will move to regulate TikTok in some way — while considering users’ rights to freedom of expression. “There are a lot of legitimate concerns, and we will be debating the issue for many years to come,” Edgar predicted.