House committee votes 50-0 to advance legislation aimed at separating the Tiktop app from its Chinese ownership
In a whirlwind of activity, House lawmakers are swiftly advancing a plan that could see TikTok banned from the United States. Within just two days this week, a pivotal House committee introduced and greenlit a bill aimed squarely at TikTok. The full House is poised to vote on it as early as next week, with the White House signaling President Joe Biden’s readiness to endorse it.
But is a TikTok ban truly on the horizon? And what sets this proposal apart from previous attempts to rein in the popular video-sharing platform, which boasts 170 million American users?
Here’s the lowdown on the contentious legislation.
What’s the aim of the bill?
Should it become law, the bill would compel TikTok to sever ties with its parent company, ByteDance, which has links to China, within approximately five months. Failure to comply would result in U.S. app stores being barred from hosting TikTok on their platforms.
It extends similar restrictions to any app purportedly under the control of foreign adversaries like China, Iran, Russia, or North Korea. Additionally, it establishes a process for President Biden, or any future president, to designate apps for banning under this legislation, and App stores found in violation of the law could face fines calculated based on the number of users of a banned app, with fines set at $5,000 per user. For TikTok, this could potentially hold Apple and Google accountable for up to $850 billion each in fines.
The House Energy and Commerce Committee unanimously voted to push the bill forward on Thursday.
What is TikTok’s response?
TikTok is denouncing the legislation as an assault on the First Amendment rights of its users. It has launched a campaign within its app, urging users to contact their representatives in Washington to oppose the bill. Several congressional offices have reported receiving a deluge of calls.
“The government is attempting to strip 170 million Americans of their Constitutional right to free expression,” TikTok stated. “This will damage millions of businesses, deny artists an audience, and destroy the livelihoods of countless creators across the country.”
Why are lawmakers taking a hard line against TikTok?
They assert that TikTok represents a national security risk because the Chinese government could exploit its intelligence laws to compel ByteDance to surrender the data of U.S. TikTok users. Policymakers fear this information could be used to pinpoint intelligence targets or facilitate disinformation and propaganda campaigns.
Thus far, the U.S. government hasn’t publicly presented evidence of China accessing TikTok user data, and cybersecurity experts view this as a potential scenario rather than a confirmed threat.
Didn’t President Trump attempt something similar before?
During his tenure, Trump utilized executive orders in a bid to pressure ByteDance into selling TikTok and to prevent app stores from hosting the platform. Legal challenges stymied these efforts, but Trump was instrumental in elevating TikTok as an issue, intertwining it with a broader anti-China agenda that encompassed a trade war and provocative rhetoric, sparking concerns of anti-Asian sentiment.
However, in a surprising turn, Trump has now voiced opposition to a TikTok ban, stating on Truth Social that such action would only bolster Facebook and Meta CEO Mark Zuckerberg, whom he labeled as “a true Enemy of the People!”
The reasons behind Trump’s sudden reversal remain unclear. Trump is the presumptive Republican presidential nominee and is expected to challenge Biden in the upcoming November election.
What sets this legislative push apart?
Firstly, it’s a congressional initiative, not executive action, which carries significant implications. During Trump’s presidency, there was debate over whether the president possessed the authority to ban a foreign-owned social media app. This bill circumvents that debate by establishing clear, entirely new powers for the president to do just that.
Secondly, Trump’s attempts to ban TikTok faced substantial First Amendment challenges at the time. Lawmakers behind this week’s bill claim to have addressed those concerns extensively.
“Wisconsin Republican Rep. Mike Gallagher, one of the bill’s lead cosponsors, says the bill does not ban TikTok; it simply offers TikTok the choice to be divested, with the consequence of a ban if it doesn’t comply. Gallagher says he and others have worked on the bill for the past six months, consulting with officials from the White House and across Washington to ensure it can withstand a legal challenge.”
And, notably, White House Press Secretary Karine Jean-Pierre has publicly announced administration support for the bill.
“We welcome it,” she told reporters this week. “Obviously, we’ve been working with [lawmakers] on it. And we would want to see this bill get done so it can get to the President’s desk.”
Can it actually pass?
The bill is advancing remarkably quickly in the House. With how quickly House leaders are promising a floor vote, it suggests they are confident it has enough votes to clear the chamber.
The question is whether the bill has a future in the Senate. If it’s taken up there, Gallagher said, it would likely fall to the Senate Commerce Committee. There is currently no companion bill to the House bill in the Senate, however. And Washington Sen. Maria Cantwell, who chairs the Commerce Committee, has provided a largely non-committal statement on the bill that acknowledges the concerns of its opponents.
“I will be talking to my Senate and House colleagues to try to find a path forward that is constitutional and protects civil liberties,” Cantwell said in a statement to CNN.”
Does the bill violate the First Amendment?
“Civil society groups say that even if the bill’s actual text doesn’t directly censor TikTok or its users, it still has the ultimate effect of doing so.
“There’s no denying that it would do just that,” said Jenna Leventoff, senior policy counsel at the American Civil Liberties Union. “We strongly urge legislators to vote no on this unconstitutional bill.”
The bill’s primary mechanic — setting up a choice for TikTok that could lead to a ban — is really a sleight of hand that courts will see through instantly, according to First Amendment experts.
Ken White, a First Amendment litigator at the law firm Brown White & Osborn, said courts can and do look at whether the functional effect of a law is to stifle speech, not just what the text of the law says. Lawmakers may try to say the bill regulates TikTok’s foreign ownership, not content. But, White said, “’foreign influence’ aren’t magic words that get you out of First Amendment problems. It’s not at all clear that Congress’ fig leaf of an excuse will work.”
An important part of First Amendment scrutiny will be whether lawmakers could have achieved their goals through a “less restrictive alternative” to a flat-out ban, said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. Passing a nationwide privacy law regulating how all companies, not just TikTok, handle Americans’ data would lead to the same result without raising First Amendment concerns, he said.
Setting that aside, courts have held that Americans have a constitutional right to receive foreign propaganda, even if the US government doesn’t like it.
By that precedent, it would be unconstitutional for the government to ban TikTok even if it were blatantly a direct mouthpiece for the Chinese government, Jaffer said.
“If you give the government the power to restrict Americans’ access to propaganda,” he said, “then you’ve given the government the power to restrict Americans’ access to anything the government deems to be propaganda.”
