Congress Should Think Bigger Than TikTok Ban, Tech Critics Say

By passing a bill that could ban video-sharing app TikTok in the US, the House of Representatives took one of the most aggressive legislative moves the country has seen during the social media era. Many lawmakers who opposed the bill want to think bigger. “We need to address data privacy across all social networks, including American companies like Meta and X, through meaningful regulation that protects freedom of expression,” said Wisconsin Democrat Mark Pocan in a post on X after he voted against the bill. “Not just single out one platform.”

The bill, which would force China’s ByteDance Ltd. to give up its stake in TikTok as a condition of continuing to operate in the US, now heads to the Senate. All signs are the legislation will have a harder time there than it did in the House. Some senators have already said the best way to design TikTok legislation that will stand up to legal challenges is to set rules about data privacy for the entire tech industry, an idea that’s been kicking around Washington for years without ever getting particularly close to becoming law.

TikTok, which declined to comment, has argued that industrywide rules are the best solution, and that it has invested significantly to protect personal data and audit its operations for doing so. It also pushed the idea of such rules in recent meetings with officials, according to a person familiar with those discussions who wasn’t authorized to speak publicly. ByteDance has spent $21 million on federal lobbying since its first disclosure in late 2019.

US intelligence officials for years have been telling Congress that Chinese control of TikTok is such a dire threat that a ban is justified. Former President Donald Trump tried to ban it. President Joe Biden rescinded Trump’s executive orders proposing a blanket ban, but he also signed a law in late 2022 prohibiting the app on government devices. More than 30 states have passed their own laws to do the same. Montana lawmakers passed a complete ban on TikTok in the state, but the law is tied up in court.

TikTok’s critics point to several problems with the app. They’re concerned that it could allow the Chinese government to access users’ personal data and also that Beijing could secretly spread harmful content to the US’s 170 million users by tinkering with the algorithm that decides which videos to display. Despite years of scrutiny, US officials haven’t publicly shared evidence that such things have happened. TikTok has repeatedly contested claims that it’s doing anything wrong and says it’s not beholden to the Chinese government.

In congressional testimony on March 12, FBI Director Christopher Wray warned of China’s “ability to conduct influence operations” by altering TikTok’s content recommendation algorithm. “That is extraordinarily difficult to detect,” Wray said. “And that is what makes it such a pernicious risk.”

There are few rules governing how social media algorithms can serve up particular content. Any that do so would have to contend with courts’ consistent rulings that the First Amendment precludes restrictions on what Americans can say and what information they can access. Putting restrictions on speech in the name of national security would require proof of “significant or imminent harm,” according to Patrick Toomey, deputy director of the American Civil Liberties Union’s National Security Project. “That evidence has never been presented either to the public or in a court of law” in the case of TikTok, he says.

Even showing that TikTok is used to spread state-sponsored influence campaigns may not be sufficient, given a 1965 US Supreme Court case that unanimously struck down rules for the US Post Office to restrict the spread of communist propaganda from the Chinese Communist Party. The sponsors of the House’s TikTok bill say they worked with the Justice Department, and argue that their bill will stand up to legal scrutiny because it regulates corporate conduct, by giving ByteDance the option to divest TikTok, rather than prohibiting specific kinds of content.

Advocates of stronger internet regulation believe there are legally sustainable ways to regulate software such as TikTok’s content recommendation engine. Calli Schroeder, senior counsel and global privacy counsel at the Electronic Privacy Information Center (EPIC), says federal rules should require tech companies to be transparent about how their algorithms prioritize content. This would apply not only to TikTok but also to Facebook, Instagram, YouTube, X and other services that have been accused of inciting violence, distorting elections and showing dangerous content to children.

At least 15 states have passed their own privacy laws, some modeled on Europe’s General Data Protection Regulation (GDPR). EPIC and other groups have called for a federal data privacy standard that would allow users to know who has their personal information, give them the ability to protest, remove consent for sharing and correct or delete their data. Such a rule, in Schroeder’s view, should also define sensitive categories such as race, gender, sexuality or political affiliation that necessitate extra protections.

Even if TikTok had a new owner, the broader dangers of online information and data sharing would remain. “If you think of the internet ecosystem as a colander with a million holes in it, I don’t know why they think plugging one of those tiny holes is going to fix these problems,” Schroeder says.

Large tech companies have said they’d prefer national standards to a patchwork of state laws on issues like privacy, but the specific provisions of any tech accountability bill are likely to be hotly contested.

Senators have raised several issues with the House’s TikTok bill. Washington state Democrat Maria Cantwell, who heads the Commerce Committee, where the bill would need to be considered next, has been working on her own TikTok bill. She has said she’s concerned about security threats related to tech companies’ access to users’ personal data, but has also questioned the constitutionality of the House’s approach. After the House vote, she said she would work with lawmakers in both chambers “to try to find a path forward that is constitutional and protects civil liberties.”

Any changes in the Senate would require the House to vote again on the new version.

Earlier data privacy proposals haven’t made it past Cantwell’s committee. After a House committee last year advanced a privacy bill further than any previous proposal, Cantwell panned the measure and its approach to enforcement. The committee did advance two bills last year to increase protections for children online, but they haven’t gotten a full Senate vote.

The House is also planning to vote on a second bill that would prohibit data brokers from transferring sensitive US user data to foreign adversaries. This measure, which the House Energy and Commerce Committee advanced along with its TikTok-focused bill, follows an executive order from the Biden administration aiming to prevent “countries of concern” from buying personal information related to the health, genetics, location and finances of US citizens. Both moves fall short of a federal data privacy standard, but they are a recognition that an unchecked market for personal data creates opportunities for foreign governments to access potentially dangerous troves of information.

Even though many lawmakers are energized by the threat from Beijing, that may be more of a distraction from the bigger problem than a solution, says Ivan Tsarynny, chief executive officer of cybersecurity company Feroot Security, who’s testified to lawmakers about TikTok and data issues. “TikTok is a sexy, shiny object right now because it’s related to China,” he says.