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TikTok CEO Shou Zi Chew will face a tough crowd Thursday when he testifies before the House Energy and Commerce Committee while his company is getting ready to a potential ban in the U.S.
Although TikTok is in the new seat, the hearing can even raise existential questions for the U.S. government regarding the way it regulates technology. Lawmakers recognize that the concerns over broad data collection and the power to influence what information consumers see extend far beyond TikTok alone. U.S. tech platforms including Meta’s Facebook and Instagram, Google’s YouTube, Twitter and Snap’s Snapchat have raised similar fears for lawmakers and users.
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That signifies that while trying to understand whether TikTok can effectively protect U.S. consumers under a Chinese owner, lawmakers can even have to grapple with how best to address consumer harms across the industry.
Conversations with lawmakers, congressional aides and outdoors experts ahead of the hearing reveal the difficult line the federal government needs to walk to protect U.S. national security while avoiding excessive motion against a single app and violating First Amendment rights.
Evaluating a potential ban
There’s little appetite in Washington to accept the potential risks that TikTok’s ownership by Chinese company ByteDance poses to U.S. national security. Congress has already banned the app on government devices and a few states have made similar moves.
The interagency panel tasked with reviewing national security risks stemming from ByteDance’s ownership has threatened a ban if the corporate won’t sell its stake in the app.
Still, an outright ban raises its own concerns, potentially missing the forest for the trees.
“If members focus solely on the prospect of a ban or a forced sale without addressing a number of the more pervasive issues, particularly those facing children and younger users, shared by TikTok and U.S.-based social media corporations, I believe that might be a mistake,” Rep. Lori Trahan, D-Mass., a committee member, told CNBC in an interview Tuesday. Trahan said members should ask about national security risks of the app, but those questions ought to be substantive.
A TikTok commercial at Union Station in Washington, DC, US, on Wednesday, March 22, 2023.
Nathan Howard | Bloomberg | Getty Images
Rep. Gus Bilirakis, R-Fla., who chairs the Energy and Commerce subcommittee on innovation, data and commerce, said he and plenty of of his colleagues are going into the hearing open to solutions.
“We now have to be open-minded and deliberate,” Bilirakis told CNBC in an interview Wednesday. “But at the identical time, time is of the essence.”
If the federal government moves for a ban where the concerns could reasonably be mitigated with a less restrictive measure, it could pose First Amendment issues, according to Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University.
“A ban here is in some ways under-inclusive because it will be focused just on TikTok or a small variety of platforms, when in fact many other platforms are collecting this type of information as well,” Jaffer said. “And in other ways, it will be over-broad because there are less restrictive ways in which the federal government could achieve its ends.”
While some might wonder if cutting off Americans’ access to TikTok is basically such a violation of rights, Jaffer said the general public should consider it in terms of the U.S. government’s authority to determine which media Americans can access.
“It’s a good thing that if the federal government wants to ban Americans from accessing foreign media, including foreign social media … it has to carry a heavy burden in court,” Jaffer said.
Many lawmakers agree that the federal government should make its case more clearly to the American public for why a ban is mandatory, should it go that route. The bipartisan RESTRICT Act recently introduced in the Senate, for instance, would require such an evidence, to the extent possible, when the federal government wants to limit foreign-owned technology for national security reasons.
Trahan said she could support laws similar to the RESTRICT Act in the House, which might create a process to mitigate national security risks of technologies from foreign adversary countries, but passing such a bill would still not be enough.
“The message that I need folks to hear is that we cannot afford to pass this laws or something prefer it, watch the administration ban or force the sale of TikTok and declare victory in the fight to rein in the abuses of dominant Big Tech corporations,” Trahan said. “I believe the conversation straight away about a ban actually threatens to let Big Tech corporations off the hook, and it’s on Congress not to fall into that trap.”
Even when the U.S. successfully bans TikTok or forces it to spin off from ByteDance, there is not any way to know obviously that any data collected earlier is out of reach of the Chinese government.
“If that divestment would occur, how do you segregate the code bases between ByteDance and TikTok?” asked John Lash, who advises clients on risk mitigation agreements with the Committee on Foreign Investment in the U.S., or CFIUS, but hasn’t worked for TikTok or ByteDance. “And the way is the U.S. government going to get comfortable that the asset, TikTok, which is hypothetically sold, is freed from any sort of backdoor that was either maliciously inserted or simply weaknesses in code, errors that occur repeatedly in how code is structured?”
“I believe the priority is valid. My big issue is that genie’s kind of out of the bottle,” Eric Cole, a cybersecurity consultant and advisor to Theon Technology who began his profession as a hacker for the Central Intelligence Agency, said of the information security fears. “At this point, it is so embedded that even in the event that they were successful in banning Tiktok altogether, that the damage is completed.”
Addressing industrywide concerns
Thursday’s hearing will feature several lawmakers on either side of the aisle calling for comprehensive privacy reform, like the type the panel passed last yr but which never made it to the ground for a vote.
Those calls function recognition that most of the concerns about TikTok, other than its ownership by a Chinese company, are shared by other distinguished tech platforms headquartered in the U.S.
Each Trahan and Bilirakis mentioned the necessity for privacy reform as a more systemic solution to the problems raised by TikTok. Each are especially concerned concerning the social media company’s potentially harmful effects on children and said they’d drill down on TikTok’s protections in the hearing.
TikTok has touted a complex plan often called Project Texas to help ease U.S. concerns over its ownership. Under the plan, it is going to base its U.S. data operations domestically and permit its code to be reviewed and sent to the app stores by outside parties.
A TikTok commercial at Union Station in Washington, DC, US, on Wednesday, March 22, 2023.
Nathan Howard | Bloomberg | Getty Images
Chew plans to tell Congress that he strongly prioritizes the security of users, and particularly teens; that TikTok will firewall U.S. user data from “unauthorized foreign access”; that it “is not going to be manipulated by any government,” and it is going to be transparent and permit independent monitors to assess its compliance.
Experts and even some lawmakers acknowledge that Project Texas offers a step forward on some facets of consumer protection they’ve pushed for in the tech industry more broadly.
“TikTok is in a really unusual position straight away to take some positive steps on issues that a lot of top American corporations have fallen behind and albeit even regressed on, whether it’s protecting kids or embracing transparency,” Trahan said. While she believes there are still many questions TikTok needs to answer concerning the adequacy of Project Texas, Trahan said, she is “hopeful” concerning the company’s professed “openness to stronger transparency mechanisms.”
Lawmakers and aides who spoke with CNBC ahead of the hearing emphasized that comprehensive privacy laws will likely be mandatory no matter what motion is taken against TikTok in particular. That is how a similar situation in the long run could also be prevented, and it’s a way to hold U.S. corporations to higher standards as well.
But on condition that federal digital privacy protections don’t currently exist, Lash said the U.S. should consider what it will mean if Project Texas were to go away.
“In lieu of comprehensive federal data privacy regulation in the US, which is required, does Project Texas give the most effective available option straight away to protect national security?” asked Lash, whose firm is one in every of only a few which have the expertise to advise the corporate on an agreement should a deal undergo. “And does it proceed if ByteDance is forced to divest their interests?”
The plan appears to address the problems that lawmakers are concerned about, said Lash, but what it might’t address are “the theoretical risks” about what could possibly occur across the app.
“I might say, based on what I’ve seen out in the general public, it does seem to comprehensively address a lot of the true technical risks which may be arising,” he said.
Still, policymakers appear skeptical that Project Texas reaches that bar.
An aide for the House Energy and Commerce Committee who was authorized to speak only on background told reporters earlier this week that TikTok’s risk mitigation plans were “purely marketing.” One other aide for the committee said that even when the U.S. could be assured the information is secure, it’s inconceivable to comb through all the prevailing code for vulnerabilities.
Energy and Commerce Chair Cathy McMorris Rodgers, R-Wash., supports a ban to address the immediate risks TikTok poses in addition to comprehensive privacy laws that passed through the committee last Congress to prevent repeat situations, according to committee aides.
TikTok’s strategy
Within the lead-up to the hearing, TikTok has turned to creators and users to share their support for the app and help lawmakers understand the unique features that make it a crucial source of income, open expression and education for a lot of Americans.
On Tuesday, Chew posted a video on TikTok touting its 150 million monthly energetic users in the U.S. and appealed to them to leave comments about what they need their lawmakers to find out about why they love TikTok.
The corporate has also found an ally in its efforts to fight a ban in Rep. Jamaal Bowman, D-N.Y. He’s a TikTok user who discovered the facility of the app to construct connections with constituents while vlogging, or video blogging, the lengthy Speaker of the House election.
Rep. Jamaal Bowman (D-NY) speaks at a news conference outside the U.S. Capitol Constructing on February 02, 2023 in Washington, DC.
Anna Moneymaker | Getty Images
On Wednesday, Bowman held a press conference with dozens of creators, opposing the ban and saying rhetoric across the app is a kind of “red scare” pushed primarily by Republicans. He said he supports comprehensive laws addressing privacy issues across the industry, fairly than singling out one platform. Bowman noted lawmakers have not received a bipartisan congressional briefing from the administration on national security risks stemming from TikTok.
“Let’s not have a dishonest conversation,” Bowman said. “Let’s not be racist toward China and express our xenophobia when it comes to TikTok. Because American corporations have done tremendous harm to American people.”
Reps. Mark Pocan, D-Wisc., and Robert Garcia, D-Calif., joined Bowman and the creators, announcing their opposition to a ban. Garcia, who’s openly gay, said it is important that young queer creators “are able to find themselves in this space, share information and feel comfortable, in some cases come out.”
“Truthfully it’s done best on the TikTok platform than every other social media platform that currently exists, actually in the US,” Garcia said.
Creators on the event on Wednesday shared opportunities that TikTok has afforded them that they are saying aren’t available in the identical way on other apps. Several creators who spoke with CNBC said they produce other social media channels but have far fewer followers on them, due in part to the straightforward discoverability built into TikTok’s design.
“I have been on social media for probably 10 years,” said David Ma, a Brooklyn-based content creator, director and filmmaker on TikTok. However it wasn’t until he joined TikTok that his following grew exponentially, to greater than 1 million people. “It’s given me visibility with people who are going to fundamentally change the trajectory of my profession.”
Tim Martin, a college football coach in North Dakota who posts about sports on TikTok to a following of 1 million users, estimated 70% of his income comes from the app. Martin credits the TikTok algorithm with getting his videos in front of users who truly care about what he has to share, which he said has helped him grow his following there way over on Instagram.
But TikTok’s attempt to shift the narrative to positive stories from creators and users should still fall flat for some lawmakers.
Bilirakis said the strategy is “not resonating with our colleagues. Definitely not with me.” That is because he hears other anecdotes about constituents’ encounters with the app that make him worry for teens’ safety.
“I do think there’s a likelihood that it could not necessarily have the impact that TikTok is on the lookout for,” said Jasmine Enberg, a social media analyst for Insider Intelligence. “It’s more evidence of how firmly entrenched the app is in the digital lives of Americans, which is not necessarily going to help persuade U.S. lawmakers that TikTok cannot be used or is not getting used to influence public opinion.”
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