Final week, the Biden administration demanded that TikTok, which is owned by the Chinese language expertise firm ByteDance, both divest its American operations or face the app’s banishment from the US market. I’ve written about requires TikTok to be banned domestically in the US thrice:
The primary two of those articles had been written in response to the Trump administration’s proposed ban of TikTok (and WeChat) in the US; the third was written in response to vital sentiment in direction of TikTok from a commissioner of the FCC, who had revealed a letter asking Apple and Google to take away the TikTok app from the US cases of the App Retailer and Google Play, respectively.
A lot of the commentary on a possible TikTok ban factors to 2 facets of ByteDance’s possession of TikTok — and its affect over 100MM US-based customers — as being problematic:
- ByteDance may very well be obligated to show its world consumer knowledge over to the Chinese language authorities in accordance with Article 7 of the Nationwide Intelligence Regulation of the Folks’s Republic of China. Whereas a consultant of TikTok claimed in Congressional testimony that the corporate doesn’t share knowledge with the Chinese language authorities, a former worker informed a Congressional listening to the other, and an inside investigation discovered that China-based staff had inappropriately accessed knowledge on US-based journalists;
- ByteDance, via management of TikTok’s content material suggestion algorithm, can affect social sentiment within the US in a approach that presents a nationwide safety menace. This concern renders the scenario notably flamable on condition that the Chinese language authorities is unlikely to permit the algorithm to be conveyed within the occasion that TikTok’s US operations are divested.
The dialogue round a possible ban on TikTok has been, to my thoughts, distracted by an unhelpful pressure of whataboutism: “American-domiciled social media platforms accumulate expansive quantities of information, so why is TikTok of specific concern?” However this line of argumentation misses the purpose: ByteDance might be compelled to give up user-level knowledge to the Chinese language authorities. The scope of information collected by TikTok relative to different social media platforms, or the truth that TikTok denies that it shares consumer knowledge with the Chinese language authorities, is essentially irrelevant. The concept knowledge from American customers may be shared with the Chinese language authorities is arresting; that chance alone renders comparisons with Meta, Google, Snap, and many others. wholly unsuitable.
I imagine that two questions ought to inform any remedy of TikTok at this juncture:
- Ought to an organization be allowed to function within the US market with out restriction if that firm might be legally obligated via a quirk of its home authorized surroundings to share consumer knowledge with its host authorities?
- If the reply to query #1 is “no,” then what restrictions have to be utilized to that firm such that its operations within the US market are permissible from a nationwide safety standpoint?
My private perception is that, as long as TikTok’s American operations might be comprehensibly and credibly ring-fenced and segmented from the broader TikTok group, with correct oversight from American regulators, its compelled divestiture or an outright and whole ban from the US market appears pointless.
It’s essential to needless to say Trump’s try to ban TikTok was blocked via a authorized problem and was in the end revoked early in Biden’s time period — so it’s unclear if a ban is even sensible. On this level, I discover this interview with a former intelligence official and present lecturer at Harvard Regulation College to be instructive. Significantly:
With out congressional motion, I believe you’d see that very same problem based mostly on the wording of IEEPA. I believe you’d most likely additionally see First Modification challenges, perhaps challenges below the Administrative Procedures Act. I believe it might be tied up within the courts at a minimal, and people challenges may succeed….The way in which I’d take a look at it’s, Trump’s ban was actually a sledgehammer. It was, for my part at the very least, designed to make headlines, virtually a type of trolling. So long as you get the headlines about attempting to ban TikTok, whether or not you succeed or not, perhaps that serves the political aim. And perhaps Biden has the identical motivation. But when what you’re attempting to do is tackle nationwide safety considerations, I believe you need an method that’s extra prone to survive a courtroom problem….However I do suppose that laws usually tend to survive within the courts, reasonably than a flat out ban. Perhaps it quantities to the identical factor if the method is so restrictive that the corporate chooses to not do it. However it’s important to at the very least attempt to present you can tackle the considerations in a approach different than simply by banning it.
Whereas a precedent for compelled divestiture exists in the case of Grindr, a ban on TikTok merely could also be inconceivable to implement, per Trump’s try. However the actuality is {that a} template for treating cross-border social media knowledge flows already exists, and it was established by the EU with the invalidation of the EU-US Secure Harbor framework and the EU-US Privateness Protect, two successive knowledge transmission frameworks that allowed knowledge to stream freely between servers within the EU and US. In a collection of authorized selections catalyzed by lawsuits from privateness activist Max Schrems, the European Courtroom of Justice struck down the Secure Harbor Privateness Ideas in 2015 in a choice referred to as Schrems I after which in 2020 declared that the EU-US Privateness Protect, which was enacted to switch Secure Harbor, was likewise invalid in a choice referred to as Schrems II. These frameworks had been invalidated as a response to the revelations of Edward Snowden associated to the US intelligence equipment’ potential to observe communications.
As mentioned in A deep dive on European knowledge privateness regulation, the alternative for the EU-US Privateness Protect — known as the Trans-Atlantic Knowledge Privateness Framework — has but to be ratified by European authorities, that means that trans-Atlantic knowledge flows might turn into unlawful as quickly as Could. And actually, there’s at the moment an initiative underway to power Meta — which is the topic of the Schrems I and Schrems II lawsuits, though it’s not the one firm to which these selections apply — to delete any knowledge transferred from the EU to the US since Schrems II was determined in 2020. The EU gives steering on learn how to take care of cross-border knowledge flows that may be topic to authorities statement: mix muscular privateness regulation with limitations on what might be transferred, and to the place.
To my thoughts, banning TikTok could be a careless, sledgehammer coverage, and it wouldn’t tackle the basis of the difficulty. Moderately, Congress ought to enact a Federal privateness regulation that 1) elides and clarifies the untenable patchwork of state-level privateness legal guidelines that firms should at the moment navigate and a couple of) units rigorous requirements for a way knowledge might be aggregated, activated, and utilized. Price noting is that China’s home knowledge privateness legal guidelines are comparatively strict, and its authorities has imposed exacting restrictions by itself expertise sector. The US ought to erect a coherent nationwide authorized customary for processing consumer knowledge and never try to attenuate systemic privateness vulnerabilities with slim, advert hoc options.
