New Bill Proposes Banning TikTok in the U.S.

January 1, 2024
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Wednesday, December 28, 2022, 8:31 AM

A new bill effectively seeks to bring back Trump’s TikTok ban. While better at distinguishing between risks, its one-size-fits-all approach raises questions.

Tiktok by Solen Feyissa (https://www.flickr.com/photos/solen-feyissa/50179261657)

Justin Sherman @jshermcyber

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The Committee on Foreign Investment in the United States (CFIUS), which screens foreign investments in the U.S. for national security risks, is by multiple accounts in conversation with the social media platform TikTok, which is owned by the Chinese tech giant ByteDance. Little is publicly known about these conversations, but media reports indicate that CFIUS and TikTok are discussing a deal that would address U.S. government security concerns while also allowing TikTok to keep operating in the U.S. without sale by its parent ByteDance.

As this saga plays out behind closed doors, some members of Congress are pursuing a different approach. On Dec. 13, Sen. Marco Rubio (R-Fla.), along with House members Rep. Mike Gallagher (R-Wis.) and Rep. Raja Krishnamoorthi (D-Ill.), introduced a new bill to ban TikTok and ByteDance from operating in the United States. There has been some bipartisan consensus around TikTok-related issues, but Democratic co-sponsorship is notable, as Republicans have on the whole been more vocal in calling for a complete ban. The members titled the bill the Averting the National Threat of Internet Surveillance, Oppressive Censorship and Influence, and Algorithmic Learning by the Chinese Communist Party Act—or the ANTI-SOCIAL CCP Act, for short. The bill’s stated purpose is “to protect Americans from the threat posed by certain foreign adversaries using current or potential future social media companies that those foreign adversaries control to surveil Americans, learn sensitive data about Americans, or spread influence campaigns, propaganda, and censorship.”

In several ways, the bill contributes to the risk assessment landscape around foreign technology companies. It defines terms such as “entity of concern” and establishes a list of criteria that would indicate a foreign social media platform is unduly subject to a foreign adversarial government’s control. It also lists countries of concern beyond China, including Russia, Venezuela, Cuba, and North Korea.

The bill has several concerning components. While it describes particular risks associated with foreign social media platforms—including the ability for a foreign government to compel a firm to hand over data or compel a company to modify its content moderation practices—it is not clear the bill and its writers are building a policy that allows for a more nuanced risk assessment that translates into adaptable policy responses. Instead, the bill proposes a template, one-size-fits-all approach—a complete ban—to foreign social media companies identified as a security risk under the criteria. Notably, the bill would also circumvent an executive action limitation meant to constrain the president from overreaching in banning information-related transactions.

All told, it is a noteworthy piece of legislation, and it delineates between the risk of data access and the risk of content manipulation better than then-President Trump’s executive order on TikTok. But it raises many questions about how the U.S. government should approach concerns about foreign social media platforms and national security—and how the U.S. government should be able to respond to potential risks. In addition to clearly defining a problem and distinguishing between distinct security risks, a remaining imperative for legislators and policymakers is developing risk frameworks that are precise, nuanced, and compatible with a suite of tailored policy responses.

Invoking the International Emergency Economic Powers Act

This new bill has many provisions, but at its core, it directs the president of the United States to effectively ban certain foreign social media companies from operating in the United States—explicitly specified herein as ByteDance and TikTok. Based on how the legislation is more broadly written, the call for a ban could theoretically expand in the future to cover other foreign social media platforms deemed to be a risk to U.S. national security (the bill’s determination process for this status is discussed below). Calling for this action means rehashing, once more, one of the Trump administration’s most infamous, and failed, tech policy actions: attempting to ban TikTok in the United States.

The bill states that 30 days after the bill is enacted, the president will use their powers under the International Emergency Economic Powers Act (IEEPA) to “the extent necessary to block and prohibit all transactions in all property and interests of property of a social media company” as laid out in the bill. IEEPA, as explained by law professor Bobby Chesney, essentially allows the president to impose sanctions and embargoes on foreign entities when the president deems there is a “national emergency” with U.S. interests at stake. Trump invoked this authority in August 2020 when he issued executive orders to ban TikTok and WeChat in the United States. (Multiple courts subsequently overturned these actions, and the Biden administration withdrew the orders in July 2021.)

In this case, the bill would exempt the president from 50 U.S.C. § 1701 and § 1702(b) of the IEEPA, meaning that the president would not have to declare a national emergency before invoking IEEPA (which is required under § 1701)—and would not be constrained by the prohibitions (under § 1702(b)) on regulating the import or export of information or informational materials, among others. The former exemption is not surprising, because the bill’s very premise is that certain social media platforms pose risks to national security through their U.S. operations. The latter exemption is more notable. IEEPA is written explicitly to have limitations. By not constraining the president by 50 U.S.C. § 1702(b), the bill would circumvent IEEPA’s clear limitation on the president regulating or prohibiting, directly or indirectly, the importation or exportation “whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials.” Social media platforms could arguably fall under this definition, which makes circumventing the limitation all the more significant and potentially concerning. If Congress does pass this bill, that would indicate a legislative belief that TikTok’s security risks make it necessary to bypass the IEEPA constraint.

According to the bill, for a social media company to qualify for this blocking and prohibition, it must satisfy at least one of the following (paraphrased) criteria:

The company is domiciled, headquartered, or has its principal place of business in or is organized under the laws of a “country of concern.”
A country and/or entity of concern directly or indirectly owns, “controls with the ability to decide important matters,” or holds 10 percent or more of the company’s voting shares or stocks.
The company uses software or algorithms that are controlled, or whose export is controlled, by a country or entity of concern.
A country or entity of concern can substantially, directly or indirectly influence the company to (a) share data on U.S. citizens or (b) modify its content moderation practices.

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