The Wall Street Journal’s John D. McKinnon reported on Thursday that, following “a major shift in policy” from the Biden administration, short video platform TikTok could be forced to split from its Chinese parent company or be banned from the United States amid concerns over data privacy and manipulation of public opinion:
TikTok said Wednesday that a forced sale wouldn’t address the perceived security risk. It has pledged to spend $1.5 billion on a program to safeguard U.S. user data and content from Chinese government access or influence.
[…] In 2020, the Trump administration sought to force a sale of TikTok to U.S.-majority ownership, based on similar national-security concerns. But that effort ultimately ran aground when TikTok and ByteDance went to court to block a proposed federal ban. The companies argued that the ban would violate a law known as the Berman amendments, which exempt cross-border communications from the president’s powers to address national-security threats through economic sanctions.
The Biden administration’s move against TikTok could face a lengthy and bumpy road as well. The company can argue that any forced sale would amount to a ban, because the Chinese government wouldn’t allow the TikTok algorithm to be sold along with it. The company also might be able to argue that the move would violate the Berman amendment, as well as the First Amendment.
The Cfius [Committee on Foreign Investment in the U.S.] move came at the same time that Senate lawmakers were rolling out a legislative proposal that could strengthen the government’s legal hand in dealing with perceived threats from foreign-owned apps. [Source]
This week also brought news that MPs in the U.K. and New Zealand will be banned from using TikTok on government-owned phones and devices, following a slew of similar restrictions elsewhere. On Thursday, Forbes’ Emily Baker-White reported that the FBI and U.S. Department of Justice are investigating the use of TikTok data by a China-based ByteDance team to surveil American journalists, including Baker-White herself, in an attempt to identify their sources within the company. The company has acknowledged this activity, but said it was unauthorized, and that those involved have been fired.
The political and media focus on TikTok over data privacy concerns has met widespread pushback from tech journalists, scholars, and activists, who argue that it ignores the more fundamental issue of unrestricted harvesting and sale of Americans’ data. TechCrunch’s Zack Whittaker, for example, recently bemoaned the “terrifying” business models of “most” American startups pitching the site for coverage:
[…] TikTok isn’t the only company capable of sharing data with China. Thousands of American apps and companies share our information with advertisers and data brokers, which also expose that data to China, in large part because nothing exists to curb the sharing or selling of data to anyone who wants it, from startups to authoritarian regimes.
But while lawmakers and the government endlessly fixate about TikTok and China, they continue to neglect the larger problem, and that’s at home. The scary calls are coming from inside America’s house.
[… A] national TikTok ban would not stop Americans’ data from ending up in China. The data has to be stemmed at the source — by not allowing American tech companies to collect gobs of data from people’s devices to begin with.
America stands alone as one of the few superpowers without a data protection or privacy law. It is this uncontrolled and unregulated environment that allows Americans’ data to end up in the hands of China or anyone who will pay for it. […] [Source]
The EFF has extensively tracked the use of this unregulated data by entities including federal and local law enforcement, who can use it to circumvent the need to obtain a warrant. Last week, the FBI admitted for the first time having purchased such data. From Dell Cameron at Wired:
The disclosure came today during a US Senate hearing on global threats attended by five of the nation’s intelligence chiefs. Senator Ron Wyden, an Oregon Democrat, put the question of the bureau’s use of commercial data to its director, Christopher Wray: “Does the FBI purchase US phone-geolocation information?” Wray said his agency was not currently doing so, but he acknowledged that it had in the past. He also limited his response to data companies gathered specifically for advertising purposes.
[…] Sean Vitka, a policy attorney at Demand Progress, a nonprofit focused on national security and privacy reform, says the FBI needs to be more forthcoming about the purchases, calling Wray’s admission “horrifying” in its implications. “The public needs to know who gave the go-ahead for this purchase, why, and what other agencies have done or are trying to do the same,” he says, adding that Congress should also move to ban the practice entirely.
US lawmakers have long failed in their attempts to pass a comprehensive privacy law, and most of the bills put forth have purposely avoided the government’s own acquisition of US residents’ personal data. The American Data Privacy and Protection Act (ADPPA) introduced last year, for instance, contains exemptions for all law enforcement agencies and any company “collecting, processing, or transferring” data on their behalf. Several bills authored by Wyden and other lawmakers have attempted to tackle the issue head-on. The Geolocation Privacy and Surveillance Act, for example, has been reintroduced in Congress numerous times since 2011 but has failed to receive a vote. [Source]
Use of location data by other parties was highlighted last week by The Washington Post. Michelle Boorstein and Heather Kelly reported on a Denver-based Catholic organization’s use of at least $4 million worth of purchased data to identify priests who had used gay dating apps, and report them to church authorities for breaches of celibacy:
One report prepared for bishops says the group’s sources are data brokers who got the information from ad exchanges, which are sites where ads are bought and sold in real time, like a stock market. The group cross-referenced location data from the apps and other details with locations of church residences, workplaces and seminaries to find clergy who were allegedly active on the apps, according to one of the reports and also the audiotape of the group’s president.
[Justin Sherman, a senior fellow at Duke University’s public policy school, who focuses on data privacy issues,] said police departments have bought data about citizens instead of seeking a warrant, domestic abusers have accessed data about their victims, and antiabortion activists have used data to target people who visit clinics.
[…] The digital advertising industry has compiled and sold such detailed data for years, claiming that stripping away information like names made it anonymous. Researchers have long shown, however, that it is possible to take a large amount of data for a specific location and re-identify people using additional information such as known addresses, and the outing of Burrill showed the practice in action. This buying and selling of data — from demographics and political beliefs to health information — is a multibillion-dollar, almost unregulated industry, said Sherman of Duke University. [Source]
For those following US TikTok developments, a reminder that part of the data and national security conversation needs to focus on the vast amount of data collected, inferred, aggregated, and sold and shared by data brokers. My Feb. 2022 piece @lawfareblog: https://t.co/3OGElIJYpg
— Justin Sherman (@jshermcyber) March 16, 2023
In a recent opinion piece in The Sydney Morning Herald, the Australian Strategic Policy Institute’s Fergus Ryan agreed with the necessity of broader data privacy rules, but argued that ByteDance’s ties to Beijing justify additional, more focused and urgent regulation:
Most major social media apps, regardless of their country of origin, pose risks of data-harvesting and content-manipulation to influence public opinion, sowing discord, or even tilting an election – which are the main national security concerns about TikTok.
But TikTok is different because it is based in a country with an authoritarian political system, where the government ultimately can – and does – tell it what to do. That significantly exacerbates the risks.
[…] Therefore, while industry-wide legislation is needed to deal with all apps, there also needs to be bespoke legislation that deals with TikTok and any other emerging major social media apps from authoritarian countries. Doing so is not xenophobic.
[… Banning TikTok on government devices] would not solve the content manipulation problem – which could be the bigger concern for Australians who worry about the state of our political and social harmony. There’s no technical solution to manipulation – which leaves a [general] ban.
Yet, any ban can’t just be about TikTok because inevitably it will be succeeded by other apps based under authoritarian regimes. A better approach would be legislation to tackle all state-controlled apps now and into the future. [Source]
SMH’s Nick McKenzie further emphasized the risk of disinformation and manipulation over data protection while reporting this week on a submission to an Australian parliamentary inquiry part-authored by former China correspondent John Garnaut. The report cites the growing entanglement of China’s tech companies with its government to argue that these risks are not merely hypothetical:
“TikTok provides Beijing with the latent capability to weaponise the platform by suppressing, amplifying and otherwise calibrating narratives in ways that microtarget political constituencies abroad,” the submission says, noting that use of the short video streaming app has exploded in Western countries including Australia.
The report claims a detailed review of corporate filings and other company material confirms that not only is TikTok owned by Chinese company ByteDance but that ByteDance is so tied to the Chinese Communist Party and government agencies that it “can no longer be accurately described as a private enterprise”. To support this claim, the report cites as an example Zhang Fuping, who is both ByteDance’s Communist Party committee secretary and its editor-in-chief.
“In our view, ByteDance has demonstrated sufficient capability, intent, and precedent in promoting Party propaganda through its Chinese platforms to create material risk that they would do the same through TikTok,” it says.
[…] The report alleges that the CCP has sought to use Zhang’s “triple-hatted position incorporating the roles of party secretary, editor-in-chief, and vice president” of ByteDance as a means of projecting party control and influence in the company. [Source]
In any case, the legal prospects for a U.S. ban remain uncertain, as Drew Harwell and Cat Zakrzewski reported at The Washington Post:
Adam Segal, a national security and Chinese policy expert at the Council on Foreign Relations, said he questioned how the U.S. government’s strategy would differ from Trump’s attempt, which fueled a geopolitical standoff and Chinese claims that the United States was attempting a “smash and grab.”
“I still don’t know what they think the outcome is going to be,” Segal said. “Many of the legal issues that TikTok used to block the forced sale under the Trump administration would still be relevant. And there’s still the high possibility that the Chinese wouldn’t allow a sale.”
[…] The Biden administration has more tools at its disposal to escalate pressure on TikTok. It remains unclear whether federal officials would push to bar American companies from working with ByteDance or TikTok, an aggressive measure that could starve the company of vital technological resources, including U.S. servers or software. The government adopted a similar approach against the Chinese telecommunications giant Huawei, cutting off its phones from being able to use basics, such as Google’s Android operating system, and almost entirely eradicating Huawei’s phone business in the United States.
[…] “If your top concern was the misuse of American citizens’ data, your top concern would be national data laws, not just banning TikTok,” Segal said. Of TikTok, he added, “there’s a sense they can’t win in the current domestic environment, no matter what happens.” [Source]
The EFF’s objections to a TikTok ban go beyond its call for broader data regulation. From Adam Schwartz and David Greene on Thursday:
Freedom of speech and association include the right to choose one’s communication technologies. Politicians shouldn’t be able to tell you what to say, where to say it, or who to say it to.
So we are troubled by growing demands in the United States for restrictions on TikTok, a technology that many people have chosen to exchange information with others around the world. Before taking such a drastic step, the government must come forward with specific evidence showing, at the very least, a real problem and a narrowly tailored solution. So far, the government hasn’t done so.
[…] In a First Amendment challenge, courts would apply at least “intermediate scrutiny” to a TikTok ban and, depending upon the government’s intentions and the ban’s language, might apply “strict scrutiny.” Either way, the government would have to prove that its ban is “narrowly tailored” to national security or other concerns. At the very least, the government “must demonstrate that the recited harms are real, not merely conjectural.” It also must show a “close fit” between the ban and the government’s goals, and that it did not “burden substantially more speech than is necessary.” So far, the government has not publicly presented any specific information showing it can meet this high bar. [Source]
Politicians shouldn’t be able to tell you what to say, where to say it, or who to say it to. So we are troubled by growing demands in the United States to limit TikTok, where millions of people have chosen to exchange information. https://t.co/FuCeYM9byW
— EFF (@EFF) March 16, 2023
The fact that successive administrations’ actions toward TikTok have faced tight legal constraints demonstrates some distinction between a U.S. ban and similar restrictions in China, which appear to be imposed with little or no limitation, warning, discussion, or explanation. Nevertheless, the uncomfortable similarity remains. Former U.N. Special Rapporteur David Kaye, now director of the International Justice Clinic at University of California Irvine’s School of Law, noted recently that “The United States has long criticized other governments for their restrictions on websites and social media applications, from Facebook to Twitter to YouTube and Wikipedia, among others. U.S. officials should turn the spotlight they typically direct against others toward themselves and rigorously review any potential restrictions according to human rights law. We fear that anything less would incentivize a new wave of global internet restrictions.”
Kaye’s comments prefaced a report by the IJC’s Celine Gruaz and Gabriel Lazo on the high bar a ban would have to meet to comply with international human rights rules, specifically the International Covenant on Civil and Political Rights:
A nationwide ban or similar substantial restriction would constitute a serious restriction on Americans’ freedom of expression, one that resembles acts of censorship that the United States condemns in countries around the world. The United States has international legal obligations under the International Covenant on Civil and Political Rights (ICCPR) to promote and protect the freedom of expression, and any restriction on that fundamental freedom must meet the tests of legality, legitimacy, and necessity. Considering the millions of Americans who use TikTok to seek, receive, and impart information and ideas of all kinds, any prohibition on the social media app must meet the high standards of human rights law under the ICCPR. This report seeks to place the calls to ban TikTok in a human rights context.
[…] The Human Rights Committee has stressed that “generic bans on the operation of certain sites and systems” are incompatible with the freedom of expression. For the United States to meet its obligations under Article 19, it must meet what are understood to be the “strict tests” of the necessity requirement: proportionality, least intrusive means, and direct relation to the need. With over one hundred million active TikTok users in the United States, the government has a heavy burden to demonstrate that a prohibition of the app, a restriction that would eliminate vast amounts of protected speech, would be a necessary and proportionate response to the alleged harms it causes. The United States would have to do more than show that banning TikTok would merely be ‘useful’ or ‘desirable.’ If there are other viable policy alternatives that could address the asserted legitimate objectives, then a blanket prohibition on the social media app would be neither necessary nor proportionate.
[…] Generally speaking, the existence of a range of other policies and potential legal avenues to address privacy and national security concerns casts serious doubt on the necessity and proportionality of severe restrictions or bans on TikTok. It may very well be that social media platforms like TikTok, YouTube, Facebook and Instagram pose serious risks to privacy, democratic institutions, and human well-being (particularly of teenagers), but these are industry problems not specific to TikTok. The failure of advocates of bans to introduce more than conjecture, to talk of risks rather than evidence, also speaks to the uncertain ground on which any severe restrictions on TikTok stand.
There is also the fact that any ban or restriction on TikTok – in effect, a ban on American individuals’ use of the platform to exercise expressive rights – runs counter to longtime U.S. policy and advocacy. Indeed, one wrinkle in the U.S., Canadian and European push to ban or severely restrict TikTok is that they all have condemned restrictions on access to major platforms, mostly American owned, around the world. The United States has repeatedly emphasized freedom of expression and access to information when criticizing country bans on platforms, even when those countries themselves emphasize their own national security. In the 2021 State Department Country Report on Human Rights in Pakistan, the U.S. government condemned Pakistan’s continued control of “social media and video-streaming services such as YouTube, Twitter, and TikTok.” In 2019, the U.S. Department of State released an official statement condemning China for stifling freedom of expression and included the government’s blocking of social media hubs such as Google, YouTube, Twitter, and Facebook in its reasoning. When the Nigerian government banned Twitter in 2021, the United States stated, “Banning social media and curbing every citizen’s ability to seek, receive, and impart information undermines fundamental freedoms.” The U.S. Embassy in Lagos emphasized that “the need for individual expression, open public conversation, and accountability has never been greater.” Moreover, in the past the United States has widely condemned any government censorship of social networking websites, specifically criticizing China, Vietnam, Egypt, Tunisia, and Uzbekistan.
[…] As a party to the ICCPR, the United States should be grappling with those same rules it has promoted in the past and UN human rights mechanisms have advanced. Adherence to those standards does not mean that the United States – or any government – is barred from protecting its legitimate interests, whether the privacy rights of its nationals or its national security. It does, however, require governments to meet the tests of legality, necessity and legitimacy and to demonstrate that with evidence and transparency. In the absence of such demonstrations, it may very well be difficult to distinguish a U.S. ban of a popular social media app from other nations’ bans of similar social media apps or other blanket restrictions on online content. [Source]