Joe Biden is taking a close look at whether TikTok, the popular social video app, is a national security threat, a move that acknowledges the concerns behind Donald Trump’s failed attempt to ban the app last year. Biden appears to share his predecessor’s concern that the ByteDance, TikTok’s Chinese parent company, poses a threat to America’s national security.
“There’s a concern about Chinese firms’ access to US citizens’ data and those firms could be pressured by the Chinese government to turn it over for espionage or other purposes,” said Adam Segal, who directs the digital and cyberspace programs at the Council on Foreign Relations.
Despite sharing this concern with the Trump administration, Biden is taking a very different approach. On June 9, Biden rescinded Trump’s executive orders effectively banning TikTok and WeChat, the Chinese messaging app. He also ordered a Commerce Department-led review of software that is “designed, developed, manufactured, or supplied by…a foreign adversary.”
TikTok is not named explicitly as the target of the order, but there is no more popular Chinese software in the US than the short-form video app, which has amassed more than 100 million users in the US, aided immensely by the pandemic economy. While the US government has mainly targeted chipmakers in its tech battles with China, regulatory action on Chinese software is largely uncharted territory with vast implications for free speech and enterprise in the US.
James Lewis, a tech policy expert at the Center for Strategic and International Studies (CSIS), who has engaged in discussions with the Biden White House about TikTok, has become more concerned with the company’s data collection over time, especially as TikTok has signaled its interest in expanding its e-commerce capabilities. “If TikTok stuck to just being karaoke videos, then who cares?” he said. “But when you say we’re going to offer financial services or e-commerce services, that increases the risk.”
He said it doesn’t really matter that they collect the same amount of data as Facebook or other social media apps because any seizure of that data can be used to inform espionage and influence operations. “Facebook doesn’t operate in the world’s largest police state—that’s the big difference here,” Lewis said. “If China was like Brazil or like India, nobody would care.”
Donald Trump’s first attempt to ban TikTok in August ended in failure. The original order used the president’s emergency economic powers to ban US-based “transactions” with TikTok, later clarified to mean that app marketplaces like the Apple App Store or Google Play Store could not allow downloads of the app. The order also prohibited new security updates for those already using the app, which would have made the app even more vulnerable to security breaches.
Numerous federal courts struck the order down. In December 2020, a federal judge in Washington, DC blocked Trump’s executive order, calling it “arbitrary and capricious” since the administration did not consider any reasonable alternatives to an all-out ban on TikTok. But the executive orders were only one way that Trump tried to banish TikTok. He also used the Committee on Foreign Investment in the US (CFIUS), a little-known agency led by the US treasury secretary, to try to force ByteDance to sell a major stake in TikTok to Oracle and Walmart. But after orchestrating the sale, the Trump administration inexplicably let the deal wither away rather than actually pull the trigger.
Biden’s recent executive order rescinds Trump’s orders and sets up a new review of various Chinese apps and their data security practices. The review process aims to demonstrate that the government explored multiple options and sought interagency perspectives before imposing harsh regulatory remedies on TikTok or other foreign apps.
That may allow the Biden administration to finish what the Trump administration started. “This is clearly a much better process,” says James Lewis of CSIS, “but it leads you to the same outcome.” TikTok declined to comment on the new executive order and the White House did not respond to questions about its approach to TikTok last week.
Banning a social media app has dangerous implications for free speech, but Biden’s attempt to conduct a comprehensive inquiry is a step in the right direction for some free speech advocates who opposed Trump’s original TikTok ban.
David Greene, senior staff attorney at the Electronic Frontier Foundation, who originally called the ban a “seed of genuine security concern wrapped in a thick layer of censorship,” shifted his outlook after he felt Trump’s personal motives were not driving the effort. “I was skeptical that the security concern was actually the issue and the way that the platform was being used to criticize the president was actually the issue,” Greene said.
The New York Times reported that Trump’s rally in Tulsa last summer had inflated expectations of attendance because of the online organizing of K-pop-loving teens on TikTok who registered en masse for the rally, a source of consternation for the former president. Greene now says that if the government is genuinely concerned about security, then this new review is an appropriate way to handle it.
CFIUS, now under Biden’s purview, could still force ByteDance to divest from TikTok if it wants to keep doing business in America. CFIUS action has largely been used to block mergers that would cede control of tech infrastructure, like when it blocked Singapore-based Broadcom’s takeover of Qualcomm in 2018, a deal that the Trump administration said would’ve hindered the US effort to remain ahead of China in the race to develop advanced computer chips. But CFIUS has some experience with consumer apps as well. In 2019, the Committee forced the Chinese company Beijing Kunlun Tech to sell the gay dating app Grindr, citing concerns over its access to Americans’ private health data.
Yet Americans’ user data may be the wrong issue to focus on in regards to TikTok, says Alec Stapp, who directs the tech policy program at the Progressive Policy Institute. He says the app’s algorithm, the engine that decides what users see, should be the focus because of its potential to censor what Americans see and promote Chinese propaganda. “The real risk is the censoring of content because you don’t know what you haven’t seen,” Stapp said. “What if there would be lots more TikToks on the Tiananmen Square massacre on that anniversary but for some reason, it just doesn’t seem to appear on most Americans’ TikToks.”
So far, there is little evidence that ByteDance is currently collaborating with the Chinese government, though the potential for such behavior remains. In March, a report from Citizen Lab, a research lab at the University of Toronto, found that TikTok did not pose a threat to US national security, does not collect more data than other social media apps, did not appear to censor content beyond typical content moderation practices, and did not have any “overt data transmission to the Chinese government.”
But The Guardian obtained leaked documents in 2019 that showed TikTok instructed its moderators to erase content that would likely anger Chinese government censors such as videos related to Tiananmen Square, Tibet, or the religious group Falun Gong.
Biden could pursue a divestment strategy or seek certain compliance protocols, but any measure that restricts users’ ability to access either app will be heavily scrutinized by speech advocates and, likely, the US court system. WeChat, an app with a smaller user base that’s seen as an important communications link to the Chinese mainland, may also fall under the same restrictions as TikTok. Trump also tried to ban WeChat and failed.
“Under the First Amendment, if the government seeks to ban an entire communications platform like TikTok or WeChat, it has to establish that the harm from the app is extraordinarily serious and imminent,” said Ashley Gorski, a senior staff attorney at the American Civil Liberties Union. “With these two apps, there’s simply no evidence that’s the case.”
The high bar for taking down a communications platform makes a complete ban unlikely in the US. But TikTok is currently banned in India and Pakistan, and has been heavily scrutinized by governments around the world. TikTok itself does not operate within China, though ByteDance operates a similar app called Douyin in its home country. Even if a ban isn’t imposed, TikTok could still face serious repercussions in the US like another divestiture deal that could see it sold to Western owners.