Trump’s TikTok ban might have been right after all

Here’s something you rarely hear a Democratic senator say: “Donald Trump was right.”

But that’s what Sen. Mark Warner (D-VA) is saying now, and it’s all because of TikTok, the popular video app that Trump tried to ban in the waning months of his presidency.

“As painful as it is for me to say, if Donald Trump was right and we could’ve taken action then, that’d have been a heck of a lot easier than trying to take action in November of 2022,” Warner told Recode. “The sooner we bite the bullet, the better.”

Warner is the chair of the Senate Intelligence Committee, and his problems with TikTok are more than shared by his Republican counterpart, committee vice chair Sen. Marco Rubio (R-FL). Rubio’s been sounding the alarm about TikTok since 2019 — before Trump, even — and he’s still doing it now. He recently co-authored an op-ed in the Washington Post that called for the app to be banned. In December, he introduced a bipartisan bill with Reps. Mike Gallagher (R-WI) and Raja Krishnamoorthi (D-IL) that would do just that: the Averting the National Threat of Internet Surveillance, Oppressive Censorship and Influence, and Algorithmic Learning by the Chinese Communist Party (ANTI-SOCIAL CCP) Act.

“There is no more time to waste on meaningless negotiations with a CCP-puppet company,” Rubio said in a statement. “It is time to ban Beijing-controlled TikTok for good.”

The chances that the new ANTI-SOCIAL CCP Act will pass and become law in the few weeks remaining in this congressional session are slim to none. But Rubio is likely to reintroduce it in the next session, where TikTok appears to be Congress’s next Big Tech target. The Big Tech antitrust bills that once seemed sure to pass this year are likely dead. It’s uncertain if and how they’ll be revived in the next Congress. There’s also the fact that some of those Big Tech companies aren’t quite so big anymore, which makes it harder to make the argument that they’re hugely powerful and dominant companies that can only be curbed through targeted legislation. But the TikTok threat is something both sides might be able to agree on.

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That scrutiny isn’t limited to the legislative branch. The Biden administration hasn’t gone as far as its predecessor, but this past September, it issued an executive order that seems very much aimed at the company. Meanwhile, Republican Federal Communications Commissioner Brendan Carr can’t stop talking about the dangers he believes TikTok poses, calling for Google and Apple to ban it from their app stores and saying he thinks the government should ban TikTok (Carr doesn’t have the authority to order any of those things, however). Certain parts of the government — including branches of the military — have already banned workers from having TikTok on their phones at all.

But TikTok’s most pressing concern right now is probably the investigation by the Committee on Foreign Investment in the United States (CFIUS), an interagency group that reviews foreign investments in the United States for national security issues. CFIUS is looking at ByteDance’s acquisition of Musical.ly, which it then combined with its own TikTok app to become what it is today. TikTok is reportedly trying to reach an agreement with CFIUS that would allow it to continue to operate in the US, but it hasn’t gotten there yet. CFIUS can and has blocked or unwound acquisitions before. It could do it again. So even though Trump is no longer in power, TikTok still faces the same threat of being kicked out of the United States or forced to be divested from its parent company.

What did TikTok do to incur the wrath of DC? It all comes down to data and China.

“This was the entity that hacked into Equifax and literally collected information on close to 150 million Americans,” Warner said. “In a world where the analogy is ‘data is the new oil,’ we should be concerned about all this data about American citizens ending up in the hands of the Communist Party of China.”

The TikTok problem

In many ways, it’s a great time to be TikTok. One of the most popular apps in the world, TikTok had more than 1 billion users as of September 2021 (the most recent numbers TikTok has released). The app that was once used primarily for making music videos has become a whole lot more. Some users see it as a news source, a community, and even a search engine. Its ad business is growing steadily. It’s trying to make moves into music streaming, virtual reality, and shopping. If what its CEOs have to say is to be believed, Silicon Valley sees TikTok as a real competitive threat.

It may not be a great time for much longer. TikTok is owned by ByteDance, which is based in China. It isn’t an arm of the Chinese Communist Party, but Chinese laws say it can be forced to assist the Chinese government. That could mean handing all the data its app has collected about American citizens to China. And TikTok collects a lot of data about its users.

“The Chinese government has established clear pathways to empower itself to surveil individuals, to gather data from corporations, and through the 2017 [National Intelligence] law, to aggregate that data on government servers,” said Aynne Kokas, director of the University of Virginia’s East Asia Center and author of the recently released book Trafficking Data: How China Is Winning the Battle for Digital Sovereignty. “To the degree to which any of this is happening is difficult to know.”

TikTok has repeatedly said it isn’t happening and that it never will. It’s also tried to distance itself from its Chinese parent company. But those claims have been undermined by recent reports that say ByteDance has a great deal of control over TikTok and its direction, that China does have access to US data, and that ByteDance has tried to get location data from a few Americans through their TikTok accounts. (To these reports, TikTok has said that the app doesn’t collect precise location data and therefore couldn’t surveil US users this way, and that leaked conversations about Chinese employees having access to US data were in regards to figuring out to turn that access off.)

Warner doesn’t seem convinced. “There’s been three or four examples, just in the last six months or so, where these promises of ‘don’t worry, American data is going to be kept separate,’” he said. “There’s been examples of, well, no, it didn’t get kept separate. This group of Chinese engineers got to look at it.”

These security concerns have been brewing for years. TikTok has already been banned from certain government devices, and bills have been proposed that would make those bans law. Trump’s 2020 executive order said TikTok’s data “potentially allow[ed] China to track the locations of federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”

But that isn’t the only threat TikTok’s opponents cite. They also fear that TikTok, directed by the Chinese government, will push propaganda or disinformation, which wouldn’t be hard to do considering how TikTok feeds its users so much content with its “For You” algorithm. It’s also not out of the realm of possibility that it would do this. A 2019 report showed that ByteDance had a list of banned content on TikTok, which included Tiananmen Square, Tibet, and Taiwan. And China has been caught using social media to spread disinformation or propaganda before (as have many other countries, including the United States). But that was through someone else’s platform. With TikTok, China could directly control what’s on the platform and how it’s distributed. It can’t do that with Facebook or Instagram.

So while cybersecurity has gotten much of the attention, Lindsay Gorman, the senior fellow for emerging technologies at the Alliance for Securing Democracy, thinks propaganda, censorship, and disinformation may be an even bigger potential problem. It’s also harder to detect.

“Say a handful of American voters in a particular state watches or is engaged by a particular type of content,” Gorman said. “Then it’s way easier to capture your attention. If they do then decide to put political messages [in your For You page] or amplify certain political content, they know what grabs you.”

Social media companies love to keep their algorithms secret. TikTok is no different. So it’s impossible to know why you’re being shown what you’re being shown, or if it’s being manipulated to make you feel or think a certain way.

Finally, there’s the fear that China will be able to use TikTok’s data to power its AI innovations. That’s an advantage the US won’t have because its social media apps are banned in China and because there aren’t laws that would compel social media companies to hand over data just because the government wants it.

“They are aggregating literally billions and billions of images of not just Americans but people from around the world who are using TikTok,” Warner said. “That gives them so much more data to help them create tools that can be utilized in the AI world.”

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At least one person (besides TikTok) doesn’t seem to think the platform poses much of a threat to the US, or at least a unique one. James Andrew Lewis, director of the strategic technologies program at the Center for Strategic and International Studies, wrote in 2020 that TikTok wasn’t the massive national security threat some were painting it to be. He feels pretty much the same way now. He believes that the data China can get from TikTok isn’t particularly different or more useful than what it’s accused of obtaining through hacks or can just purchase from data brokers. Pro-Chinese propaganda is no concern to him, he said, adding, “Your average 15-year-old is not going to tune into a video extolling Xi Jinping.”

Where he does see some risk is that China could use TikTok to censor, manipulate, or distribute disinformation.

“But the question is, is there an acceptable level of risk that would let TikTok continue to operate?” Lewis said.

The TikTok solution

While some have come around to thinking Trump was right to want to ban TikTok, they don’t necessarily agree with how he tried to do it. Courts didn’t agree either, and blocked his August 2020 executive order that would have forced ByteDance to sell TikTok or be banned. But it never made it to an actual trial, as Biden took office and revoked the executive order.

Republican leaders have criticized President Biden for not being as tough as Trump on TikTok and appearing to support the platform by reaching out to some of its biggest influencers. But the Biden administration isn’t going easy on TikTok, either. Biden recently issued an executive order expanding the definition of national security for the purposes of CFIUS reviews to include data and technologies necessary to “protect United States technical leadership.” It doesn’t directly address TikTok, but it certainly includes it.

CFIUS, by the way, has been reviewing ByteDance’s acquisition of Musical.ly for several years now. CFIUS doesn’t comment on ongoing investigations, but TikTok said in a statement to Recode that “we will not comment on the specifics of confidential discussions with the US government, but we are confident that we are on a path to fully satisfy all reasonable US national security concerns.”

To that end, TikTok is currently trying to wall US data off from China to satisfy CFIUS’s concerns in an effort it’s dubbed “Project Texas.” That would keep what’s considered “protected” data on US users on US-based servers run by Oracle, with controls over who has access to it.

TikTok has also been trying to beef up its presence in DC to better make its case to lawmakers. ByteDance’s spending on federal lobbyists has steadily grown over the years, from just $270,000 in 2019 to $5.2 million in 2021 — and it’s on track to surpass that in 2022. It recently brought on Jamal Brown, who worked for the Biden administration and was the press secretary for Biden’s presidential run, to manage its policy communications in the US. It also sent representatives to testify before congressional panels in 2021 and 2022 after refusing to do so in 2019.

A deal between CFIUS and TikTok has reportedly been imminent for weeks now, but it hasn’t happened yet. There are doubts that anything short of forcing ByteDance to sell off TikTok would guarantee that China can’t access user data or do anything about concerns over pushing propaganda and disinformation.

“I know there have been good-faith negotiations going on between the Justice Department and TikTok,” Warner said. “But if you can’t find a way to get the yes in two years …” He added that he’s open to the possibility that TikTok can work something out that would alleviate his concerns with TikTok, but did not sound too hopeful that it could happen. “You’ve got a big hill to climb.”

These problems could be solved very quickly if ByteDance were to sell off TikTok, but that doesn’t seem to be an option. The Chinese government would have to approve such a move, and experts say that’s very unlikely.

“The Chinese government loves TikTok,” Lewis said, pointing out that it’s the only social media app from China that’s been successful outside of the country. “The Chinese government will protect it.”

As for FCC Commissioner Carr’s public statements against TikTok, the company has said he “has no role in or direct knowledge of” its negotiations with the government, and “appears to be expressing his personal views.”

Warner and Rubio also co-authored a letter to the Federal Trade Commission in July asking it to investigate TikTok, which the FTC may well be doing now (it does not make ongoing investigations public).

A law — like the one Rubio says he will soon introduce — could ban TikTok, assuming it’s actually passed, which is always a big uncertainty, even with bipartisan agreement. But some believe that focusing solely on TikTok won’t fix the environment that has helped it become a privacy and disinformation threat in the first place.

“Addressing TikTok alone will not solve the problem of Chinese mis- and disinformation in the US social media landscape,” said Kokas, who would also like to see a privacy law that protects Americans’ data on all apps, not just the ones based in China. Congress hasn’t been able to pass a consumer digital privacy law that might better protect Americans’ data, even as other countries — including China — have for their citizens.

“One reason we’re in this mess is because we’ve been unable to enact a privacy law for 25 years,” Lewis said. “There’s a big problem with social media. TikTok’s a small part of that.”

While the government tries to figure things out, TikTok continues to grow and further entrench itself in America, with tens of millions of users in this country who love and use it all the time. It’s hard to see them letting go of their favorite app at this point — if anyone ever actually tries to make them.

Update, December 13, 1:40 pm ET: This story, originally published November 14, has been updated with the news that Sen. Rubio introduced a TikTok-banning bill.