Experts say TikTok can be hard to ban: Here’s why
WASHINGTON: The Biden administration is under pressure to ban the popular Chinese-owned social media app TikTok, but any such move is likely to depend on the passage of a new law strengthening the government’s power to regulate speech, experts said.
Lawmakers and national security hawks are mounting pressure to ban TikTok, owned by China’s ByteDance, because the app can censor content, influence users and pass Americans’ personal data to Beijing, claims the company denies.
Courts blocked an earlier bid by the Trump administration to ban the app, in part on the grounds that such a move violated free speech protections.
That means any measures to block the app will likely depend on the passage of legislation like the RESTRICT ACT, a bipartisan bill introduced by senators this month that gives the Commerce Department new powers to ban foreign technology that poses a national security risk. Lawyers and China watchers said this would circumvent speech protections built into existing law.
“RESTRICT is really useful because it gives this a whole new legal authority that doesn’t have these complications under other laws,” said Emily Kilcrease, a senior fellow at the Center for a New American Security and a former assistant professor of law. US Trade Representative. “It’s a much stronger, purer legal authority.”
TikTok previously criticized the RESTRICT Act, saying that “the Biden administration does not need additional authority from Congress to address national security concerns about TikTok: it can accept the deal negotiated with (the Biden administration) over the two years it has spent the last six months reviewing.”
TikTok CEO Shou Zi Chew will testify before the House Energy and Commerce Committee on Thursday and face tough questions from lawmakers who want to ban the app.
TikTok, which FBI Director Christopher Wray said in November could be used to “control software on millions of devices,” has been in the US government’s crosshairs for years, with powerful Republican Senator Marco Rubio pushing for a review in 2019.
Courts overturned former President Donald Trump’s effort to block TikTok in 2020 with an executive order that gave the Commerce Department similar powers to the RESTRICT Act.
In that case, the executive order Trump invoked had a major hurdle: It was powered by the International Emergency Economic Powers Act, which separates the import and export of “informational material” and “personal communications” through the Berman Amendment. , which sought to protect speech.
Meanwhile, a decision by the Committee on Foreign Investment in the United States, a powerful body that scrutinizes foreign investments for national security risks, to force Bytedance to divest its US TikTok business is still stuck in negotiations two and a half years later.
White House National Security Adviser Jake Sullivan endorsed the RESTRICT Act on March 7, saying it would “strengthen our ability to address the discrete risks posed by individual transactions and the systemic risks posed by certain transactions involving countries of concern in sensitive technology sectors.”
But the bill is unlikely to provide immediate solutions to those calling for the app to be banned. Although the legislation has the support of both parties, no supplementary bill has yet been introduced in parliament. It’s also not yet clear when Congress might take it up — and some think it could be tied to a year-end defense measure.
Some experts said that using the new legal tools to ban TikTok could still raise First Amendment challenges.
“Realistically, I don’t see this tool coming into use before 2024,” said CFIUS attorney Nicholas Klein of DLA Piper. “And there will likely be a legal challenge if it banned TikTok.”
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