Earlier this week, the US House of Representatives passed a bill that, if passed into law, would effectively ban TikTok in the United States. Concern about the popular social media platform’s links to the Chinese government, the potential for it to be used to spread disinformation and propaganda and its potential as a surveillance tool has motivated much of the support for the Bill.
But worries about TikTok are hardly reserved to the United States. Last year, the British government banned TikTok from government devices. A few months later, the European Union issued a similar recommendation. Given that TikTok is one of the most popular social media platforms in the world, with more than 1.5bn users, it is important that lawmakers around the world approach it with sober analysis. Unfortunately, the approach taken by American lawmakers is wrongheaded and our MPs should be hesitant to emulate it. The US Bill would hamper free speech and do little to mitigate concerns over user privacy and security.
Although widely reported as a ‘ban’, the US Bill does not explicitly ban TikTok. Rather, the Bill sets out a number of conditions that would allow the US government to mandate that a foreign-owned app divest – that is, sell itself to a US government approved company. Under the provisions of the Bill, it would be illegal for a ‘foreign adversary’ (defined by US law as North Korea, China, Russia, and Iran) to control an app used in the US 180 days after the Bill becomes law.
Despite what many critics of TikTok would like you to think, the ownership of TikTok is a little more complicated than it being ‘Chinese-owned’. China-based ByteDance launched TikTok in 2017 as a merger with Musical.ly. TikTok became the international version of Douyin, which is only available in China. The platform is incorporated in the Cayman Islands and has offices all over the world. While TikTok is not a creation of the Chinese Communist Party (CCP), it is undeniable that the company has a corporate structure that links back to China. Thanks to CCP policy and influence, there is no such thing as a private company in China in the way that there is in the US or the UK.
Supporters of the Bill may argue that it is not an affront to free speech because it says nothing about the content on TikTok. Rather, the Bill governs who is allowed to own TikTok. However, ownership of means of communication does trigger First Amendment concerns, as the Cato Institute’s Jennifer Huddleston has explained. Huddleston correctly notes that the Bill could affect how other services such as app stores and web browsers use TikTok:
‘The government is potentially dictating to these companies what information or products they can or cannot carry in their store. Such a position would be anathema to many in the offline world and it should be viewed for what it is in the online world as well’.
In the UK, the First Amendment is not a barrier to legislation, and there is nothing stopping Parliament passing a similar bill. Yet there would still be free speech concerns if such a bill were to pass. Any company that was in a position to buy TikTok would almost by definition be inviting Competition and Markets Authority (CMA) scrutiny that could well result in the regulator blocking the acquisition.
Previously, the CMA ordered Meta to sell Giphy and initially blocked Microsoft from buying Activision. How likely is it that such a regulator would allow Meta (which already owns Instagram) or Google (which already owns YouTube) to buy TikTok? Divestment of one of the largest social media platforms in the world is hardly going to be a straightforward process, and it would inevitably have an effect on TikTok users.
Warning of the potential free speech implications of attempts to divest TikTok does not imply a dismissive approach to Chinese surveillance. The CCP is one of the most authoritarian governments in the world and its treatment of its own citizens, especially minority groups, is barbaric and enabled by a widespread system of persistent surveillance.
But it is not clear that the best way to approach concerns about the CCP’s access to user data (which ByteDance disputes) is to focus on a narrow slice of foreign companies. Many companies collect data from users all over the world, and we know that foreign adversaries have used social media platforms to spread propaganda and disinformation before. If members of Congress and Parliament are concerned about TikTok they should consider passing privacy legislation that tackles the many worries people across the world have about how social media companies collect, use, and store user data.
Although the US Bill is not strictly speaking a ‘ban’ on TikTok it would, if passed as currently written, have a significant effect on how TikTok users all over the world experience one of most popular and influential social media platforms. At a time when the Prime Minister is reportedly keeping TikTok ‘under review’ it is critical that Members of Parliament consider the weaknesses of the US approach rather than consider it a template.
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