Smoke and Phone Screens: a TikTok Ban Isn’t About Protecting Americans’ Privacy

Last week, TikTok users opened the app to see a notice warning them that Congress was planning on banning the platform. TikTok urged users to call their representatives. They did, in droves, flooding the inboxes of lawmakers. Days later, on March 13th, 2024, the House passed the Protecting Americans from Foreign Adversary Controlled Applications Act (H.R. 7521), referred to (un)popularly as the “TikTok ban bill.” 

The passage of this bill is the latest in a series of previous failed efforts to ban TikTok in the U.S. For years the FBI, CIA, and NSA have claimed that TikTok poses a credible, albeit entirely hypothetical, threat to U.S. national security. President Trump issued an executive order in 2020 attempting to force a sale of the platform. In 2023, Senator Mike Warner (D-VA) introduced the RESTRICT Act, which would have given the U.S. Secretary of Commerce the power to ban any technology company from conducting business in U.S. borders if they are found to be cooperating or dealing with a foreign adversary country (this would include TikTok). The state of Montana approved a ban of TikTok, but it was thwarted by a district court on First Amendment grounds. TikTok is already banned on most government devices

Now, Congress is on a bipartisan fast track to ban the over 100 million Americans that use TikTok from accessing the app, unless a divestment agreement is reached in which ByteDance sells the platform to an American company. Their reasoning? Privacy, apparently

H.R. 7521 is born out of a fear that ByteDance, TikTok’s Chinese parent company, could be compelled by Beijing government officials to use their platform to shift public opinion, spy on users, and collect mass data on Americans. But as Representative Thomas Massie (R-KY, 4) argued on the House floor, the TikTok ban bill is a trojan horse masquerading as privacy legislation. Aside from the fact that there is no evidence that TikTok has ever actually coordinated with Beijing, it’s both disingenuous and hypocritical to care about Americans’ digital data only when it involves a foreign government.

It’s fair to worry about the intrusive practices of the Chinese government. However, U. S. lawmakers should worry first about what X, Meta, and Google are doing right here in the U.S. X and Meta partner with companies on the unregulated data broker market, which collect, package, analyze, and sell your personal information to anyone willing to pay. Developers of social media surveillance tools like Dataminr, Babel Street, Skopenow, and Shadow Dragon publicly claim to have access to data from X and Meta. Surveillance vendors partner with law enforcement, providing powerful tools and vast quantities of data, leading to tangible harms to Americans. 

U.S. police have used data from Meta and X to track and suppress Black Lives Matter protesters. Recently, those seeking abortion care in states that have criminalized the procedure have been prosecuted based on private messages and data supplied to police by Meta, Google, and online pharmacies. Last month, Senator Ron Wyden (D-OR) shared that his office uncovered that Near, a data broker company, tracked patient’s visits to over 600 Planned Parenthood clinics across 48 states using cell phone location services. An anti-abortion prosecutor could easily acquire this data to throw women and those who help them in prison. These private companies are doing right now what TikTok is only alleged to be capable of: Spying on Americans and collecting mass amounts of data that the government can easily gain access to. 

If TikTok were blocked from the U.S. market, X and Meta would gain greater shares of potential consumer data as American users migrate to their platforms. Lawmakers who want to take down “Big Tech” by supporting the TikTok ban bill, would only be making U. S. Big Tech firms bigger. 

In 2023, ODNI declassified a report revealing that intelligence agencies directly purchase Americans’ data in vast quantities. This “data-broker loophole” allows the government to acquire sensitive information from a shadowy data-broker market they would otherwise need a judicially-approved warrant for under the Fourth Amendment. American law and intelligence officials also continue to abuse their access to Section 702 data collected under the Foreign Intelligence Surveillance Act. The head of the House Permanent Select Committee on Intelligence, Mike Turner (R-OH, 10), recently gave a closed-door briefing urging for a clean renewal of Section 702 in part because it allows the government to surveil pro-Palestine and anti-war protesters. It’s worrying for the government to have an app popular among young people that is not wholly subservient to U. S. interests in particular. We recognize that TikTok’s privacy practices, like Meta’s or X’s, are subpar, but that doesn’t mean that banning TikTok would help any American’s privacy on net. It’s very possible to view the move to ban TikTok, rather than being about privacy, as being part of a larger strategy by surveillance and national security hawks. To paraphrase Spencer Ackerman, the American surveillance state wants to maintain its monopoly on your data. If the NSA can’t have it, no one can. Thus, a TikTok ban. 

Let’s take a closer look at the actual language of H.R. 7521. If it becomes law, it would be illegal for any entity (company, organizations, etc.) to “distribute, maintain, or update…a foreign adversary controlled application.” This means that app stores cannot host or sell, nor can internet hosting services accommodate, any applications controlled or based in North Korea, Russia, Iran, and China. Exempt are foreign adversary controlled applications that execute a qualified divestiture – in simple terms, an American business acquires the application for a negotiated price. The bill provides a short timeline of 180 days for divestiture proceedings, and hefty civil penalties for any entity that violates the act – $5,000 per number of users within U.S. borders. 

H.R. 7521 gives broad discretion to the president to determine what foreign adversary controlled applications present a “significant threat to the national security of the United States.” Given the loose and mostly hypothetical reasoning for the current TikTok ban proposal, it’s not much of a logical leap to assume that a future president won’t need much justification to target other foreign technology companies. President Biden is eager to sign the bill into law should it come to his desk, despite his campaign launching their own TikTok page this year

The president should not have the power to decide what Americans can see on their phones and computers. It’s not the first time that presidents have tried. The Radio Act of 1912 gave the government control of the radio spectrum; the 1950s Red Scare saw the government trying to block Americans from receiving printed materials in the mail from Warsaw Pact countries. The Berman Amendment was passed 35 years ago to prevent the president from regulating or banning the import or export of news, art, and other information, even from hostile nations. When President Trump attempted to ban TikTok under the International Emergency Economic Powers Act (IEEPA), two lawsuits opposing the measure referred to IEEPA exceptions. The Berman Amendment falls under the “informational materials exception.” Additionally, under the “personal communication exception,” the president cannot restrict “any postal, telegraphic, telephonic or other personal communication, which does not involve a transfer of anything of value.” TikTok clearly qualifies under both these exceptions, where users share personal stories, communicate with friends and family, and display various artistic creations. The platform is also home to creators who focus on world events, national news, and live-coverage reporting. 

No government should be emboldened to regulate and censor their citizens’ media consumption based on its country of origin. It is a fundamental democratic value for Americans to receive information across the globe, the very basis of an informed and engaged citizenry. Americans (rightfully) criticize the Great Firewall, China’s mix of legislative actions and technologies that regulate what Chinese citizens can and cannot access on the internet. Insert idioms about glass houses or black pots and kettles here, ad infinitum

Our lawmakers often endorse myopic approaches to digital safety and privacy that criminalize various ways of using the internet. This includes not only the TikTok ban bill, but also bills like the Kids Online Safety Act (KOSA), the EARN-It Act, and the STOP-CSAM Act, which would make it harder for consumers to use properly encrypted services and virtual private networks. Rather than a TikTok ban, we need a comprehensive federal privacy law like the ADPPA that requires companies to practice data minimization, provide options for opting-out of data collection, and clear, plain-language privacy agreements. The TikTok ban bill even has a provision that provides users the right to request any data the platform may have about them. This is an important transparency provision, but for all firms, not just TikTok.