New Bill Proposes Banning TikTok in the U.S.
He adds:
As I have written previously for Lawfare, a persistent problemwith the Trump administration’s TikTok executive order and other, subsequent proposals around foreign apps is the blurring together of distinct security risks. With TikTok, for instance, one can imagine several different risksthat impact the security landscape, including the risk of data collection on U.S. government employees, the risk of data collection on non-government-employed U.S. individuals, the risk of TikTok censoring information in China at Beijing’s behest, the risk of TikTok censoring information beyond China at Beijing’s behest, and the risk of disinformation spreading on TikTok. In this bill, the top-line statement describes several risks associated with foreign social media companies: The governments that influence those companies surveilling Americans, learning sensitive data about Americans, and spreading influence campaigns, propaganda, and censorship.
Sherman concludes:
The Biden administration, to its credit, had begun to move away from the Trump administration’s dysfunctional and legally overturned approach to TikTok. On June 9, 2021, Biden signed Executive Order 14034, entitled Protecting Americans’ Sensitive Data From Foreign Adversaries. The order revoked Executive Orders 13942 (the so-called TikTok ban) and 13943 (the so-called WeChat ban). It also revoked Executive Order 13971, which Trump signed on Jan. 5, 2021, just before leaving office to prohibit U.S. persons from engaging in transactions with Chinese companies Alipay, CamScanner, QQ Wallet, SHAREit, Tencent QQ, VMate, WeChat Pay, and WPS Office, citing concerns they could “permit China to track the locations of Federal employees and contractors” and “build dossiers of personal information” by gathering data that Beijing could access. Importantly, the June 2021 Biden executive order stated explicitly that “the Federal Government should evaluate these threats through rigorous, evidence-based analysis and should address any unacceptable or undue risks consistent with overall national security, foreign policy, and economic objectives, including the preservation and demonstration of America’s core values and fundamental freedoms.”
Simultaneously, CFIUS and other security review bodies appear to be conducting more and more reviews as there are concerns raised as well about national security creep in cross-border investment reviews. CFIUS’s reported conversations with TikTok are another example of how the interagency committee might consider mitigation agreements that allow a particular company to describe how it has addressed security risks, rather than outright forcing companies to undo transactions. Concerns about national security creep are valid and especially important to ask in a democracy. In tandem, the individuals involved in those reviews should have a great interest in transparency, accountability, and targeted risk assessment. After all, a risk framework that says the risk to the United States is the same for every single company in a given country (such as China), for example, does not help to identify the most urgent cases for review—or the places where action is not needed and could unnecessarily consume limited security review resources.
This is why this bill is so significant. Not only does it propose to reattempt the Trump administration’s ban on TikTok, while concerningly skipping around limitations on IEEPA, but it also lays out a set of definitions and criteria that could be applied to other foreign social media platforms in the future. Security concerns about foreign technology companies are clearly not going away, which means it is all the more imperative for legislators and their staff to design substantive, nuanced risk assessment frameworks that help distinguish between real security risks and situations where risks are conflated and responses are not properly tailored.
