Time is Ticking for TikTok

Here’s an interesting scenario for the election. President Biden signs a bill requiring TikTok to be divested from Chinese ownership or be banned from the US. The company and its content creators whip young voters into an anti-Biden frenzy and the youth vote, which normally trends Democrat, shifts abruptly to the right. Biden goes down to defeat in the swing states due to the TikTok vote.

That scenario became more possible earlier this week when President Biden signed an appropriations bill that included a provision requiring TikTok to be sold to a company not controlled by a “foreign adversary” within 270 days or it will be banned within the US. The 270-day timeline notably puts the moment of truth for TikTok roughly nine months away, about three months after the election. Wired points out that divesting TikTok is easier mandated than done since the TikTok algorithm is on China’s export control list. This means that the Chinese government would have to approve any sale.

The TikTok bill was part of a larger appropriations bill that included aid to Israel, Taiwan, and Ukraine as well as a number of other items. The bill received strong bipartisan approval in both houses of Congress.

The TikTok bill that ultimately became law was preceded by a host of other TikTok bills that fell by the wayside. Proposed TikTok bans received support from both political parties, including Donald Trump, who considered an executive ban while he was president and who issued an Executive Order On Addressing the Threat Posed by TikTok. Earlier this year, however, Trump reversed himself and came out against a TikTok ban after meeting with a donor who had a major stake in the platform. On the other side of the argument but the same side of the aisle, Mike Pence called TikTok “digital fentanyl.”

In 2023, the federal government banned TikTok from government devices. Several countries have similar bans. Montana also tried to ban the app, but that legislation has been blocked by a federal judge. TikTok is not even available in China, but there is a similar app called Douyin that is aimed primarily at older people.

The movement to ban TikTok gained steam in March with a classified briefing for senators about the threat posed by the app. What was discussed in that briefing was not made public, but we do know that it included details about China’s ability to harvest user data and access microphones and keyboards to track what users are doing in other apps. There is also concern that China could track Americans through the geolocation of their phones. The briefing seems to have changed the minds of many skeptical senators.

“This app is a spy balloon in Americans’ phones,” said Rep. Michael McCaul (R-Texas). “It is a modern-day Trojan horse of the CCP used to surveil and exploit Americans’ personal information.”

The concerns don’t stop there. There are also additional worries about the nature of TikTok algorithms. The Chinese government might use TikTok to sway public opinion or push propaganda. For example, critics argue that TikTok algorithms are slanted to push pro-Hamas and anti-Taiwan content. With about a third of young Americans reporting that they regularly get news from TikTok, the danger here is obvious.

Beyond political concerns, there are more traditional social media concerns such as addiction and harmful content. The Washington Times reported that researchers found that TikTok pushed videos that “exploit the vulnerability” of users. Accounts that simulated young teens received recommended videos that damage self-image and even promote suicide.

An example of the potential dangers of TikTok came in March when the app urged users to contact Congress to voice opposition to the proposed ban. Enraged TikTok users flooded Congress with calls. Some callers were kids who didn’t know what Congress was or who threatened to commit suicide if the app was banned. Ultimately, the effort backfired.

“Here you have an example of an adversary-controlled application lying to the American people, and interfering with the legislative process in Congress,” Rep. Mike Gallagher (R-Wisc.) said. “In a weird way, it almost proves the point that we’ve been making here.”

Defenders say that TikTok is a typical social media platform. The platform allows many Americans and companies to boost their businesses, generate sales, and contribute to the GDP. The difference is that TikTok, unlike other media companies, is controlled by a company that is beholden to the communist Chinese government. Ironically, Republicans like Donald Trump, in the past an ardent foe of China, are on the same side as Democratic progressives on the issue. (If you’ve followed me long, you will get the sarcasm there. I don’t think it’s ironic at all when the former longtime Democrat sides with progressives.)

Critics also argue that a TikTok ban would violate the First Amendment rights of users. However, as I‘ve noted in the past, the First Amendment guarantees the right to free speech, not the right to a platform from which to speak. Further, other platforms also have similar short video formats. TikTok is not unique in that regard.

TikTok’s opponents compare banning the company to current laws that ban foreign ownership of more than 20 percent of the stock in broadcasting companies or 25 percent of holding companies that control broadcast licenses. The rationale is simple: We don’t want to grant potentially adversarial entities control of the flow of domestic information. (Of course, Tucker Carlson et al are proof that you don’t have to be a foreigner to disseminate foreign propaganda.)

TikTok owner ByteDance has threatened to sue to block the new law from taking effect.

“Rest assured, we aren’t going anywhere,” TikTok CEO Shou Chew said in a video response that was ironically posted to the platform formerly known as Twitter. “The facts and the Constitution are on our side, and we expect to prevail again.”

But is the Constitution on TikTok’s side? That remains to be seen.

What we do know is that the Supreme Court has previously ruled that the government cannot block the spread of foreign propaganda. In Lamont v. Postmaster General (1965), the first of the “Sanford and Son” cases*, the Court held that blocking mail delivery of communist propaganda was a “limitation on the unfettered exercise of the addressee’s First Amendment rights.”

Legal pundits say that the government’s best argument is not a First Amendment attack or concerns about data privacy, but that TikTok presents a national security risk. TikTok’s most dangerous threat – and the most constitutionally actionable one – is that Chinese control of TikTok exposes American users to insidious manipulation by a foreign adversary. One chilling scenario is the possibility that China might use its influence on TikTok to gin up opposition to American involvement in defending Taiwan against a Chinese invasion.

TikTok has proposed “Project Texas” as a way to ease minds about the Chinese government’s influence short of divestiture. “Project Texas” would make the company more independent from ByteDance by partnering with Oracle. The problem is that any relationship between TikTok, ByteDance, and the Chinese government would retain the possibility of nefarious Chinese influences.

One of the most dangerous aspects of freedom is that enemies can use our liberty against us. Russia tried to attack our electoral system to sow division and chaos, now China is similarly attempting to use the First Amendment as a weapon to deceive large numbers of Americans with their propaganda. The balancing act between preserving freedom and allowing our Union to be destroyed from within is a difficult one.

Given TikTok’s immense popularity (170 million Americans are users), the issue of the TikTok ban has the potential to impact the outcome of close elections. The bipartisan nature of both support and opposition to the ban further muddies the waters.

I tend to come down on the side of the ban while my 20-year-old son, a TikTok fan, is opposed. While we disagree on the issue, he did have a really good point.

“If TikTok is so dangerous,” he said, “They should show the people why.”

I agree on that point. If the evidence is convincing enough to sway a bipartisan group of 79 senators, bring the case to the American people. Show us why TikTok is a threat and why we shouldn’t use it. That’s especially true if the evidence is from open-source material or is unclassified.

The one thing that we can probably say for sure at this point is that TikTok users who don’t know what a congressman is are unlikely to rally to the polls in numbers large enough to replace Congress with representatives who will repeal the TikTok bill. That’s especially true when the ban won’t go into effect until long after the election (but not long enough for voters to remember it in 2026) and assumes that the incensed TikTok users are even old enough to vote. Further, the bipartisan nature of the opposition to TikTok makes it difficult for either side to use the issue as a wedge.

It’s unlikely that the election will hinge on the TikTok bill, although the company will undoubtedly try to make its future an issue. But if TikTok is going to survive in its current form, its best chances are with the courts.