Two US administrations have tried to ban TikTok over Chinese security concerns with little success. Why not address instead the real and urgent issues of social media harm and data protection?
A TikTok supporter outside the US Capitol in Washington on March 12. Photo: Bloomberg
The recent passage of controversial US legislation to force Chinese tech company ByteDance to divest itself of TikTok or face a ban is not the first time that TikTok has been a target in the complex narrative of US politics.
It is not even really about TikTok, popular though the short-video app is. The debate is merely a reflection of broader concerns about tech governance in the United States.
US policymakers have been in a dilemma over TikTok for years. In August 2020, president Donald Trump, labelling TikTok as a data security threat, issued an executive order banning Americans and American companies from having anything to do with TikTok’s parent company ByteDance after 45 days – effectively a ban on TikTok.
In doing so, he invoked the International Emergency Economic Powers Act (IEEPA). The legal bedrock for this is a declaration of a national emergency. This Trump had done the year before. In May 2019, he issued an executive order on “securing the information and communications technology and services supply chain”. He said “foreign adversaries” were “increasingly creating and exploiting vulnerabilities” in the US tech landscape and declared a national emergency over this perceived threat.
After Trump’s TikTok executive order, the US Secretary of Commerce specified the prohibited transactions, including maintaining TikTok on an app store and providing it with internet hosting services.
The move to ban TikTok was opposed by not just ByteDance but also many Americans who relied on TikTok to learn and earn. Lawsuits followed. At the heart of these were not so much whether TikTok posed a security threat as whether Trump had overstepped his authority.
The lawsuits hinged on two exceptions to executive powers under the IEEPA invoked by Trump. The first safeguards personal communications while the second protects a broad array of published or broadcast content. The courts were unequivocal, deeming the president to have overstepped his authority.
Trump’s unsuccessful attempt at invoking emergency powers to ban TikTok sparked discussions over users’ digital rights and highlighted the fragmented approach to digital governance in the US.
The absence of comprehensive federal data protection laws has led to a patchwork of industry-specific and state-level regulations which, while pioneering in some areas, could potentially be undercut by federal mandates. This fragmentation is a significant hurdle for the proposed American Data Privacy and Protection Act, which has struggled to gain traction since 2022.
One other perspective remains from Trump’s targeting of TikTok, which is related to the national emergency declared over foreign threats to the US supply chain. Trump’s 2019 executive order led to the Commerce Department’s drawing up of supply chain rules and gave it some oversight over tech transactions that involve foreign entities where risks to national security are perceived.
In 2021, Biden’s administration elaborated upon this with an executive order on “protecting Americans’ sensitive data from foreign adversaries”, which have been defined to include China.
TikTok’s alleged threat to the US supply chain, however, looks like more of the same bogeyman narrative. The supply chain rules, anchored in the IEEPA, may encounter the same legal hurdles that stymied Trump’s efforts. The TikTok bill – passed last month by the House of Representatives and awaiting debate in the Senate – marks another effort to navigate this complex scenario.
As social media become just as powerful, or even more so, than traditional media, strategic concerns have risen over foreign ownership and national interests. Countries have long been wary of foreign operators controlling the local media and US President Joe Biden has been quick to declare that he would sign the TikTok bill into law as soon as Congress passes it.
Yet again, such developments lead back to questions over whether the current US policy framework is capable of addressing the real issues at hand. Let’s consider a hypothetical America where TikTok is fully banned.
TikTok has been blamed for fanning a shift in support among young Americans for the Palestinian cause, causing difficulties in an election year for a Biden administration that staunchly backs Israel. In the absence of TikTok, would the shift in support simply reverse? Or would American voters’ concerns over the adverse effects of social media on their children magically dissipate?
Many of TikTok’s investors, which include US multinationals, have been silent. Does this suggest concerns about TikTok’s threat to national security and the supply chain or, in my opinion, the likelier prospect that they are focused on financial gains post-divestment?
For the US government, a more pragmatic approach would be to update its legal and regulatory frameworks covering privacy, antitrust issues and transparency so as to safeguard digital platforms including TikTok as well as user rights. But this is complex terrain, given the US socioeconomic and political landscape. Especially in an election year, politicians would be concerned about accusations of impinging on the freedom of speech or losing political contributions from large corporations.
Like it or not, digital platforms with their algorithmic black boxes have emerged as a new mass medium. Regulators and politicians worldwide must confront the challenge of responsibly managing the information flow to win the hearts and minds of all stakeholders.