TikTok Faces Criticism Over “Sell or Ban” Deadline Law
A law that gives TikTok a final ultimatum of “sell or ban,” which was issued by the U.S. government, has been criticized as a “ban” by some. TikTok argues that the U.S. government has not provided evidence to prove that TikTok poses a risk to national security, and therefore such drastic measures should not be taken. On the other hand, lawmakers and the U.S. intelligence community believe that if the app remains under the control of the Chinese Communist Party (CCP), it will pose a serious threat to national security.
On April 24, President Joe Biden signed the “Preventing Adversaries from Exploiting Apps Act (PAFACA),” which requires apps controlled by adversary countries to sever ties with foreign governments in order to operate in the United States. This means that the Chinese-based parent company of TikTok, ByteDance, must sell TikTok before January 19, 2025, or face a ban. ByteDance and TikTok have filed a lawsuit, claiming that this law violates the constitutional First Amendment.
The Congress introduced the bill in March and it passed with broad bipartisan support in the same month. Despite the bill quickly becoming law, negotiations had been ongoing between the U.S. and TikTok for several years prior.
TikTok entered the U.S. and global markets in September 2017, and two months later, ByteDance acquired Musical.ly, which had 200 million users, and merged it into TikTok. In 2019, the U.S. government raised national security concerns through the Committee on Foreign Investment in the United States (CFIUS) with ByteDance.
CFIUS has specific powers to review foreign transactions based on national security concerns, and there were questions about whether CFIUS had the authority to review the Musical.ly acquisition from two years ago.
By July 30, 2020, CFIUS had completed its formal review and announced an investigation into ByteDance’s acquisition of Musical.ly.
Two weeks later, President Donald Trump issued an executive order requiring ByteDance to divest its U.S. app TikTok. ByteDance filed a lawsuit, and the U.S. government lost due to legal procedural issues. The court questioned why the executive order was issued before CFIUS had completed its investigation. The executive order was subsequently revoked, and the lawsuit was frozen.
Since November 2020, the administration has been in ongoing talks with ByteDance and TikTok, reviewing dozens of proposals and conducting in-depth technical discussions to find a solution that does not involve divestment.
David Newman, the Deputy Assistant Attorney General for National Security at the Department of Justice, has been involved in these negotiations and stated in a sworn affidavit submitted to the court in July of this year that ByteDance’s gradual concessions have led the government to believe they can reach a resolution.
However, he mentioned that after years of discussions, ByteDance was not willing to agree to certain terms that would mitigate the risks associated with CCP access to user data and the CCP’s ability to influence the app.
On August 23, 2022, ByteDance submitted its final proposal and promoted a nearly $2 billion investment “Texas Project,” the project aimed to store data on U.S. soil. However, reviews by the government and experts found that this proposal was “insufficient” to address core national security issues.
Ultimately, the government would require the project company Oracle to review TikTok’s behavior within an impossible timeframe and rely on TikTok to voluntarily correct any improper behavior identified by the government.
As TikTok CEO Zhou Shouzi pointed out during a congressional hearing, ByteDance is a privately-owned company registered in the Cayman Islands. However, being headquartered in China means the company is subject to Chinese laws even if it is not a Chinese company. The CCP has passed several laws requiring anyone operating in China to assist the CCP’s digital authoritarianism, claiming “digital sovereignty” gives them the authority to enforce these laws overseas, even if they conflict with foreign laws.
The National Security Law passed by the CCP in 2015 defines security as the state and CCP interests being “in a state of no danger and free from internal and external threats.” The law requires Chinese citizens and organizations to report any evidence that could harm national security and assist authorities in national security work.
The Counterterrorism Law of 2015 broadly defines terrorism as “advocacy and actions that coerce state organs, international organizations to achieve their political, ideological goals,” and authorizes the state to conduct monitoring, while requiring all individuals and organizations in China to assist the CCP in this work.
The Cybersecurity Law of 2016 stipulates that foreign companies operating in China store data on servers located in China, and allows Chinese authorities access to this data, requiring network operators to be “subject to supervision by the government and society.”
The National Intelligence Law of 2017 gives the CCP the power to conduct intelligence work both within and outside Chinese borders using any “necessary methods, means, and channels” and can “require relevant organs, organizations, and citizens to provide necessary support, assistance, and cooperation.”
These laws also include clauses prohibiting individuals or organizations from disclosing whether they have been asked to comply with CCP actions.
In summary, these laws create conditions for ByteDance to secretly share data obtained from TikTok with the CCP while publicly denying it and even doing so without TikTok’s knowledge.
TikTok did not respond to inquiries from The Epoch Times.
Kevin Vomdran, Assistant Director of Counterintelligence at the FBI, stated in court documents, “Chinese laws give the People’s Republic of China control over Chinese companies’ U.S. subsidiaries… China has and can benefit from the business success of these companies because the Chinese government uses its legal system and other tools to influence these companies for geostrategic gain.”
TikTok is currently challenging the U.S. National Security Law in federal appeals court.
In legal arguments, TikTok argues that the law violates the First Amendment and infringes on the freedom of speech of its 170 million American users. This argument has garnered widespread support from notable First Amendment advocates, including the Foundation for Individual Rights in Education (FIRE) and others who submitted amicus briefs.
Other legal experts argue that the issue has nothing to do with the First Amendment because the law targets non-expressive conduct (foreign ownership) rather than expression (content on the app). A group of legal experts argued in amicus briefs that the U.S. has historically used divestment to address national security issues.
The federal court supports the law (PAFACA), and currently three federal appellate judges are handling the case.
TikTok argues that PAFACA effectively bans the app in the U.S. because divestment is not an option, as the CCP regime does not allow ByteDance to sell TikTok.
Attorneys General from 21 states stated in an amicus brief that this admission is tantamount to recognizing that TikTok will follow Chinese law when in conflict with U.S. law.
Some critics of TikTok argue that the app has had many negative impacts on users, especially young users. They raise concerns about the CCP’s ability to influence the American public through TikTok and point out that two reports have concluded that the app’s algorithm suppresses content critical of the CCP.
Communication regulatory lawyer Joel Thayer told The Epoch Times that PAFACA does not target the content on TikTok; if it did, that would violate the First Amendment.
“Even after divestiture, one could still be the mouthpiece for CCP propaganda if they so chose. They just can’t be hooked up with a company so entangled with the CCP,” he said. Thayer is the chairman of the Digital Progress Institute, representing two groups who submitted amicus briefs advocating for the constitutionality of PAFACA.
Thayer said that when it comes to TikTok, pro-CCP content likely ranks quite low on the national security issue list.
Thayer said, “The message sent by the divestment law is that we are really concerned about the data transfer due to this relationship, the ability for these individuals to set algorithms in China, not just reflecting their viewpoint, but perhaps engaging in espionage.”
“This is a massive national security vulnerability, unrelated to whether the American people or American government like or dislike the content,” he added.
Some critics of PAFACA argue that most social media platforms collect data similar to what TikTok collects, and PAFACA does not address this issue. In fact, PAFACA also does not address TikTok’s data collection, which would require a more complex law.
Cybersecurity expert Joseph Steinberg told The Epoch Times that Facebook may have more data on Americans than TikTok since it has been in operation longer and is interconnected with other apps and accounts to act as login keys. Even though TikTok’s privacy policy mentions the potential collection of biometric information, it is not entirely unique, as acquiring such data is not particularly difficult today.
“If you shoot a high-definition video, I can conduct facial motion analysis on you, and if you have a high-resolution photo of your finger, I can collect your fingerprint,” said Steinberg.
Steinberg noted that the possibility of internal spies within U.S. tech and social media companies aiding foreign adversaries to obtain similar data exists. Moreover, he mentioned that there could be hardware vulnerabilities in popular devices like smartphones used by U.S. companies.
These devices can collect and do much more than software can. He added that this data is valuable to both corporations and adversaries, but the exact value remains uncertain.
Considering all the information recorded by teenagers and minors on TikTok, if a foreign government were to possess incriminating or exonerating evidence of a well-known individual several decades later, would that put them in a blackmail position?
Steinberg said, “Storing data is inexpensive, and storing everyone’s information is valuable to an adversary. ”
Cybersecurity expert and CEO of Macguyver Tech, Steve McKeon, told The Epoch Times that he has seen TikTok sending data to China. McKeon recalled helping a company deal with ransomware and discovered that malicious software was siphoning data collected by TikTok to China.
He and his colleagues at the Quokka Network Security company found TikTok participating in what they call “app collusion,” collecting data where they shouldn’t and sending it to China, which they reported to members of Congress during a risk briefing last year. App collusion involves TikTok obtaining data collected by other apps, which is a hallmark of malicious software.
“We can see where the data goes, but not its purpose and understand how actors supported by the CCP are operating in cyberspace,” McKeon said, “This may not be a good thing.”
McKeon pointed out suspicious behavior by TikTok, including its way of connecting to the internet. Typically, when an app connects to the internet, it connects to the nearest server.
“TikTok doesn’t do that. TikTok goes halfway around the world, straight to China first,” he said, and there’s no good reason for doing so, “It’s not connecting to a few different servers and then eventually getting there other.”
He added that if Chinese engineers receive data before its stored in the U.S., storing the data within the U.S. doesn’t have much meaning, explaining why ByteDance’s final proposal failed to convince the U.S. government.
If the CCP can easily access these vast databases, digital surveillance becomes possible. With the CCP’s law enforcement abroad, a TikTok tethered to the CCP could potentially allow the regime to track dissidents and human rights activists in China, a regime that openly states it will extradite these individuals back to China and may punish them if necessary. The FBI and international human rights organizations call this “transnational repression.”
Thayer said, “This is not just a national security issue, it’s a human rights issue.” One of the amicus groups he represents is a coalition of several human rights organizations advocating for Uighurs, Hong Kongers, and Tibetans, who are well-versed in CCP digital surveillance and persecution.
Rushan Abbas, founder and executive director of the non-profit “Campaign for Uyghurs,” has been designated by the CCP as a “terrorist.” In a September 5, 2018 event in the U.S., Abbas condemned the CCP’s persecution of Uyghurs, including the disappearance of 24 of her relatives, including her husband.
Five days after the event, Abbas’s sister, Gulshan Abbas, went missing. It wasn’t until December of 2020 that Abbas confirmed her sister had been abducted and detained by the CCP, sentenced to 20 years in prison on charges of terrorism and undermining social order.
Abbas told The Epoch Times, “I became the target of continuous CCP harassment, threats, defamation, and blackmail, both in person and online. The purpose is to discredit me for organizing events for the Uyghurs who are experiencing genocide.”
Abbas explained that TikTok can not only track users but also their contacts, posing a real security threat to human rights activists and their families in China.
“Under CCP control, TikTok must share user data with the Chinese government, which poses a severe risk to our privacy, exposes sensitive information, and contributes to CCP’s transnational repression,” she said.
Researchers at Rutgers University noted that TikTok has also suppressed content relating to CCP human rights abuses. In a rapidly spreading incident, social media user Feroza Aziz posted a tutorial on how to curl eyelashes, mentioning the CCP’s persecution of Uighur Muslims. The video quickly garnered 1.6 million views but was deleted by TikTok within an hour, and Aziz lost access to her account. TikTok later apologized for the mishap, calling it an error.
ByteDance, the parent company of TikTok, also has a record of targeting dissenters.
Last year, ByteDance’s former executive, Yintao “Roger” Yu, sued his former employer seeking compensation for damages. He reportedly was dismissed because he expressed concerns about ByteDance stealing intellectual property. In court documents, he claimed that Chinese engineers can access data directly from the U.S. and have extensive management authority to influence the app.
Soon after Yu publicly made these accusations, he and his lawyer claimed in court filings that there were signs that they were under digital surveillance. For example, his lawyer was intercepted by an uninvited user during a private Zoom call. In another incident, one of Yu’s college classmates said they received a visit from a private investigator who told them ByteDance wanted to contact Yu.
Another former ByteDance employee stated in an affidavit that after publicly disclosing ByteDance’s collaboration with the CCP to scrutinize content, his father was detained by police from the CCP Public Security Bureau in a remote secret facility and was told it was because he had given interviews about ByteDance and the CCP.
“In extreme fear, my mother tearfully told me that my father had been detained,” the statement reads, written to support Yu’s arguments that certain witnesses should be protected from ByteDance knowing their identities. “Based on my personal experience, I believe that ByteDance will view employees who dare to speak out against the company’s practices as ‘traitors’ and seek to destroy them at all costs.”
While TikTok and its supporters argue that the U.S. government has not provided any evidence to show TikTok is engaging in nefarious activities and therefore the divestment law should not be implemented, lawmakers believe this misconstrues the role of policy-making.
On September 25, Representative John Moolenaar, Chairman of the U.S.-China Competition Subcommittee in the House, stated in a subcommittee meeting, “A smoking gun means the gun has been fired. Requiring to see a smoking gun before taking action puts policymakers at a disadvantage.”
He suggested, “We should be looking for a ‘loaded gun,’ such as companies under CCP’s National Security Law.”
After PAFACA became law a few months ago, Congress introduced a series of bills aimed at addressing CCP threats during the autumn session. Several bills have garnered widespread support and quickly moved forward, primarily targeting future behaviors, such as Chinese investments in U.S. institutions.
The Biden administration has also proposed a series of regulations to protect U.S. supply chains, reduce dependence on the CCP, such as adding tariffs, or proposing to ban the use of Chinese software and hardware in U.S. automobiles.