In case you missed it: TikTok is big in the United States.
Not only did the company purchase significant ad time during this past Sunday’s Academy Awards, there are more than 170 million active monthly users in the United States — about 51 percent of the country’s population. Incredibly, nearly half of Gen Z say they use TikTok and Instagram as their main search engine, and that’s according to Google’s own data.
In no small part due to its popularity, TikTok has also attracted significant attention from Washington. A year ago this month, TikTok CEO Shou Zi Chew found himself on Capitol Hill defending the company’s data security practices and links to China.
The political environment for TikTok has not improved since then. Last week, the U.S. House Energy and Commerce Committee unanimously approved a bill, the Protecting Americans from Foreign Adversary Controlled Applications Act, that would prohibit U.S.-based app stores from carrying TikTok unless the platform’s China-linked parent company, ByteDance, relinquishes ownership of the popular social media site within 165 days of the legislation’s enactment into law.
The legislation is moving quickly on Capitol Hill. House lawmakers received an intelligence briefing from the Federal Bureau of Investigation, U.S. Department of Justice (DOJ), and Office of the Director of National Intelligence on yesterday, and, today, House lawmakers are expected to vote on, and pass, the TikTok bill.
Has the country ever seen a piece of legislation like this one, and what are the chances this bill will make it to President Joe Biden’s desk?
Let’s take a look.
Lawmakers Under Pressure As Former President, TikTok Users Unite
Just days after the House Energy and Commerce Committee approved the TikTok bill without any objection, former President Donald Trump came out in opposition to it. “Frankly, there are a lot of people on TikTok that love it. There are a lot of young kids on TikTok who will go crazy without it,” Trump told CNBC on Monday.
The former president also argued quashing TikTok would expand the influence of other social media platforms that lawmakers have criticized. “If you get rid of TikTok, Facebook and Zuckerschmuck will double their business. I don’t want Facebook, who cheated in the last Election, doing better. They are a true Enemy of the People!” Trump said on social media. (One of the bill’s GOP authors, Republican Rep. Mike Gallagher of Wisconsin, responded to that claim. He said, “Trump was right about the national security problem posed by TikTok in 2020. And he’s right today that just pushing TikTok users onto Facebook isn’t the answer. That’s why our bill is the right path forward — it surgically removes [Chinese Communist Party] control and creates an opportunity to put TikTok in better hands.”)
Meanwhile, TikTok has mobilized its myriad users to weigh in with lawmakers. As Politico explained, the company has run a pop-up on its app “encouraging users to call lawmakers to stop a ‘total ban’ of the app, arguing that it will infringe on their freedom of expression and damage millions of businesses.”
The ad deploys users’ own data — in this case, their locations — to identify the users’ own elected representatives, Politico reported. “It’s so, so bad. Our phones have not stopped ringing. They’re teenagers and old people saying they spend their whole day on the app and we can’t take it away,” one House GOP staffer told the Capitol Hill newspaper. (Some offices have temporarily shut down their phone lines as a result of the onslaught.)
This tactic is not the only one TikTok has deployed in an effort to stall the legislation. As AXIOS reported, the company also has been sending content creators and lobbyists to Capitol Hill this week.
For now, lawmakers seem to be ignoring the teenagers and the former president.
According to Punchbowl News, TikTok CEO Shou Chew is hurriedly trying to meet with senators, but many have declined the meeting requests. Additionally, despite former President Trump’s opposition, right-leaning groups like Heritage Action and Americans for Prosperity have said that they support the legislation. President Joe Biden has promised to sign the bill if it reaches his desk.
Still, while the House appears poised to approve the Protecting Americans from Foreign Adversary Controlled Applications Act, the bill will have a tougher road in the Senate and, certainly, in the courts if it’s signed into law.
Key Question: Is The TikTok Ban Really A Ban At All?
One key concern for some senators: whether the Protecting Americans from Foreign Adversary Controlled Applications Act is constitutional. After all, it singles out a specific company. Doesn’t the U.S. Constitution prohibit that kind of targeting?
Perhaps. What the U.S. Constitution does prohibit are bills of attainder, which are pieces of legislation that declare a party guilty of a crime and allow the government to punish that party for the crime without due process. Articles 1 and 9 of the U.S. Constitution prohibit bills of attainder. As Cornell Law School has explained, courts have adopted a three-part test to determine if a law functions as a bill of attainder:
- The law inflicts punishment.
- The law targets specific named or identifiable individuals or groups.
- Those individuals or groups would otherwise have judicial protections.
As the Duke Law School journal has noted, the Supreme Court has never decided whether the prohibition on bills of attainder applies to corporations.
While it is unclear whether Congress ever has targeted a company in exactly this way, the federal government certainly has used its power to break up companies. As the American Action Forum explained six years ago, in the early 20th century, DOJ and the Federal Trade Commission “broke up a number of different companies, including Standard Oil and American Tobacco.” Those actions relied on anti-monopoly statutes as opposed to national security concerns.
Of course, a few years ago there was Huawei, a Chinese-owned technology company.
As the Congressional Research Office has explained, in 2017, Congress restricted the use of Huawei equipment in certain Department of Defense (DOD) networks. In 2018, lawmakers prohibited federal agencies from obtaining equipment, systems, and services that use Huawei equipment or services as a substantial or critical component, and it prohibited the use of federal grants and loans for Huawei products. The next year, the U.S. Department of Commerce (DOC) required U.S. companies to obtain a license to export goods to Huawei. In 2020, Congress appropriated $1.9 billion to remove Huawei equipment from U.S. networks. Congress also has approved legislation that requires the Federal Communications Commission to adopt rules clarifying it will no longer review or issue equipment licenses to companies that pose a national security threat. Those rules would include Huawei.
But even beyond the Protecting Americans from Foreign Adversary Controlled Applications Act’s targeting of a specific company, there are additional potential constitutional concerns with the bill.
As The Hill noted, opponents of the bill like the American Civil Liberties Union have said the legislation would violate the First Amendment. Rep. Cori Bush (D-Mo.) agreed, arguing, “Rather than target ONE company, Congress must pass comprehensive data privacy legislation.” (That legislation has been stalled on Capitol Hill for many, many years, of course.)
A federal court already has overturned a law passed in Montana that would have banned the platform in that state. According to Vox, which interviewed First Amendment experts, “Congress can’t outright ban TikTok or any social media platform unless it can prove that it poses legitimate and serious privacy and national security concerns that can’t be addressed by any other means.”
Of course, the 50 House lawmakers who voted in committee for the Protecting Americans from Foreign Adversary Controlled Applications Act already have an answer to this claim: The TikTok ban is not actually a ban. At last week’s Energy and Commerce Committee hearing, Ranking Member Frank Pallone (D-N.J.) argued the bill merely creates a new authority to ban apps in “narrowly defined situations” when they are controlled by a foreign adversary.
Only time will tell if that argument holds, but no matter what happens in today’s House vote, or in the Senate, this saga is far from over.
The House Always Wins: Other Ways To “Ban” TikTok
Given the level of support from members of both parties, even if the Protecting Americans from Foreign Adversary Controlled Applications Act fails in the Senate or in the courts, this attempt to rein in TikTok will not be Congress’ last.
Sen. Maria Cantwell (D-Wash.) has been working on legislation, the Guard Act, which would rein in TikTok. Though the legislation has not yet been formally introduced, it reportedly would give the DOC greater authority to regulate and oversee platforms the federal government believes present a threat to U.S. national security. In testimony last year, Commerce Secretary Gina Raimondo said, “[T]he threats are different today than they were 10 years ago. And so the right way to do this is to empower us with a statutory set of tools, to have a comprehensive approach to these connected apps that pose the national security risks, you say … I’m supportive of attacking it in a comprehensive statutory way.”
As Vox noted, lawmakers also could use a long-stagnant data privacy bill to address concerns about TikTok. The 2022 American Data Privacy and Protection Act “included provisions requiring companies to allow consumers to consent to or reject the collection of their data, to allow consumers to download the data being collected on them and delete it, requiring consumers’ affirmative consent to share that data with a third party, and more,” Vox noted.
Capitol Hill staff members better get used to hearing from the kids of America.