TikTok: Bans, Berman Amendments, and Regulation Practices

In a nation divided, where even the most minor of issues seems to polarize, there seems to be one that invites near universal indignation and scrutiny from politicians of both parties: TikTok.

The social media app, where users can make dance videos, has gained a shocking amount of detractors. Just in the last year or so, multiple state governments – from Maryland to Texas – have banned the app’s use by their officials, university systems have outlawed it from their devices, and President Joe Biden has issued an executive order labeling the app a potential “threa[t]… [to] the national security, foreign policy, and economy of the United States.” But why is this the case? 

Developed by Chinese tech giant ByteDance, the popular video-sharing, social media platform emerged as one of the COVID-19 pandemic’s biggest winners; since the app’s launch in 2018 (in its current form), it has skyrocketed in popularity during the pandemic – reaching over 2 billion downloads and 800 million active users worldwide in 2020. And it’s only grown since, with 21% of all U.S. adults and 48% of those under 30 reporting to use the app according to a 2021 Pew survey. 

With the social media platform’s stunning growth amongst the American populace, long-standing concerns about the relationship of both the app and its parent company ByteDance to the People’s Republic of China (PRC), and questionable data-collection policies have come under greater scrutiny by US officials. According to a report by the BBC, TikTok – like many social media companies – collects a monumental amount of user data including: video watch and comment history, user location, phone model and operating system, and the keystroke rhythms exhibited when typing. Combined with its parent company Byte Dance’s reportedly close relationship with the PRC government, a prominent geopolitical rival, TikTok’s rampant collection of user data has left many US officials uneasy.

“All of these things are in the hands of a government that doesn’t share our values, and that has a mission that’s very much at odds with what’s in the best interests of the United States,” warned Federal Bureau of Investigation (FBI) Director Christopher Wray, “That should concern us.”

Experts have warned that previous national security laws, namely the Counter-Espionage and National Intelligence laws, enacted by the government in Beijing in 2014 and 2019, respectively, compel Chinese companies to “support, assist and cooperate with state intelligence work.” In addition, users – in approving user agreements – have already acquiesced to government searches of their app data. “If the legal authorities in China or their parent company demands the data,” Bryan Cunningham, executive director of the Cybersecurity Policy and Research Institute at UC Irvine, said, “users have already given them the legal right to turn it over.”

While state governments and legislatures have largely heed these warnings, with at least 26 states enacting partial to total bans of the app on government devices, a federal ban has appeared more elusive for various reasons. Plenty of federal officeholders support a ban, including FCC Commissioner Brendan Carr, who said that he sees no “path forward for anything other than a ban.” However, some remain reticent, including President Joe Biden, who, upon assuming office, revoked the previous administration’s executive orders on TikTok as well as WeChat – another Chinese based social media app, and called for a more “evidence-based” analysis of the threat posed. 

That position, and the administration’s perceived lack of action against the threat posed by TikTok, has been subject to increasing bipartisan pressure from prominent Congressmembers. Leading Republicans – from Sen. Marco Rubio (FL) and Sen. Josh Hawley (MO) – and Democrats – notably Sen. Mark Warner (VA) and Rep. Raja Krishnamoorthi (IL) – have introduced or planned to introduce legislation that would enact a nationwide ban on TikTok or attempt to curb potential abuses of its influence in the US. 

However, any attempt – from the President or Congress – to ban or otherwise constrain the app is certain to face legal challenges. Cold War-era legislation, known as the Berman amendments, which revoked the President’s ability to regulate or ban the flow of “informational materials” from “hostile” foreign nations, such as Cuba, to the US was used by TikTok’s lawyers to shutter ban attempts by the Trump Administration. Needless to say, a prospective executive order by President Biden would likely face the same challenge. A repeal of the Berman amendments – aimed at pushing through a straight ban – is controversial. 

“I think in general the bar on regulating speech internationally back and forth is good,” said Sen. Hawley. “You don’t want the president to use [federal law] to regulate communications outside the United States.” 

 TikTok has denied any wrongdoing with regards to its user data collection, storage, usage practices and its relationship to the PRC government. “The suggestion that we are in any way under the thumb of the Chinese government is completely and utterly false,” Theo Bertram, TikTok’s head of public policy for Europe, the Middle East, and Africa, said, “we would definitely say no to any request for data [if approached by the Chinese government.]”

Matthew Song is from Monkton, MD, studying History and Classics

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