Loyola Chicago School of Law, JD 2024
TikTok is making American headlines once again. Calls to ban the app have been revived by groups of bipartisan legislators. President Biden has threatened to ban TikTok from American digital markets over concerns for how the social media app handles domestic data. Former President Donald Trump attempted to ban the app in the US in 2020, but the ban was ultimately unsuccessful. However, pundits continue to debate whether regulators, legislators, or the President have the power to enforce a TikTok ban.
The main concerns about TikTok’s operations center on data privacy and security. TikTok collects user data, such as location and browsing history, and has faced allegations that it shares this data with the Chinese government. The Chinese-owned company, ByteDance, which owns TikTok, has denied these allegations and has taken steps to increase transparency and reassure users about data privacy. For example, after President Trump’s failed attempt to ban the app through executive order, TikTok entered into an agreement with US corporations Oracle and Walmart. Oracle would become the app’s cloud provider in hopes that this would lessen any concerns over the use of privacy. Walmart would purchase a 7.5% stake in the company and its CEO would serve as one of the five board directors.
In 2020, the Trump administration issued Executive Order 13873 to ban TikTok, citing national security concerns. The order stated that TikTok “automatically captures vast swaths of information from its users” and “threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.” The ban would have effectively barred TikTok from operating in the US.
However, the ban faced significant legal challenges, and two federal judges blocked the order from taking effect. The courts found that the administration had not adequately demonstrated that TikTok posed a national security threat and had violated the company’s due process rights by failing to provide a sufficient opportunity to respond to the ban. We will never know whether the Supreme Court would agree with the circuit court’s analysis because President Biden withdrew the executive order and ceased any additional legal intervention.
With a new administration in place, the fate of TikTok in the US remains uncertain. The Biden Administration has signaled that it will continue to scrutinize TikTok and other Chinese-owned apps’ data practices. One potential approach the Biden administration could take is to impose new regulations on TikTok’s data practices rather than seeking to ban the app altogether. This approach would aim to address the national security concerns while still allowing TikTok to operate in the US. Regulations could include requirements for greater transparency in data collection, limitations on the types of data collected, and restrictions on data sharing with foreign governments. For example, new regulations could include requiring TikTok to allow American tech companies like Oracle to have oversight over data collection and management.
Another option the Biden administration could pursue is to negotiate with TikTok’s parent company, ByteDance, to address concerns about data privacy and security. ByteDance has already made some concessions, such as creating a separate entity to manage TikTok’s US operations and allowing US-based experts to review its data privacy practices. Further negotiations could result in additional safeguards for user data and greater transparency into the company’s operations. However, any action President Biden chooses to take will likely not have the same impact as another executive order.
Another route Congress could take is to draft legislation to empower President Biden the authority to ban TikTok. For instance, Congress could chose to amend the 1977 International Emergency Economic Powers Act (IEEPA) which prohibits U.S. President from regulating “information materials”. This portion of IEEPA was purposely added to allow the free exchange of cultural products. However any potential legislation passed would also be subject to legal challenges. With over 150 million American users, an act prohibiting its use could conflict with the first amendment. In 2017, the Supreme Court struck down a law that prohibited convicted sex offenders from using social media. The Court held that the law was a violation of the First Amendment’s free speech protections, stating that social media was an important platform for public discourse and that the law was too broad and vague in its restrictions.
For now, the possibility of the US banning TikTok remains uncertain, and there are arguments for and against such a move. While concerns about data privacy and security are valid, a ban could have significant implications for the tech industry and international relations. The Biden administration could pursue other measures, such as regulations or negotiations.