TikTok’s China problem has a potential new solution

Sens. Mark Warner and John Thune have a bipartisan bill to deal with TikTok and beyond.

There might be a new way to deal with TikTok in DC: a bipartisan bill from Sens. Mark Warner (D-VA) and John Thune (R-SD) that isn’t a TikTok ban — though it could lead to one. It also doesn’t just address TikTok or its parent company, the Chinese-based ByteDance, but all technology companies from countries that have been identified as countries of concern.

“Today everybody’s talking about TikTok,” Warner said in a press conference announcing the bill. “But before there was TikTok there was Huawei and ZTE, and before that there was Russia’s Kaspersky Lab.”

The Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act, which Warner and Thune unveiled on Tuesday, gives the secretary of commerce the power to take actions against technology companies that are based in certain countries determined to be “foreign adversaries,” including China, Russia, Iran, North Korea, Venezuela, and Cuba. That would include banning their information and communications products and services, but the government would be allowed to declassify documents that make the case that such an extreme step is actually necessary — something that’s so far been missing from most of the arguments for a TikTok ban, which are rooted in what could happen and not what actually has.

Notably, the bill is not the outright ban that many of TikTok’s detractors have called for and other lawmakers support — at least, not yet. But it could be the most feasible legislative solution to the TikTok problem. It also deals more comprehensively with the prospect of apps from hostile countries being used against US interests, as opposed to singling one or two of them out from just one country as other TikTok ban efforts have done. The bill would give the commerce secretary authority to identify, investigate, and determine which actions should be taken against products and services that it determines to pose a national security threat. The president will then determine if those actions are necessary and order them to be carried out.

“Our tools to date have been relatively limited,” Warner said. “We lack a holistic, interagency, whole-of-government approach.” This bill, he said, would do just that. And it would give the government the ability to deal with future potential technological threats, such as AI.

The concern with TikTok is that Chinese law allows the government to order ByteDance to give it TikTok’s US user data or spread propaganda or misinformation to US users. ByteDance and TikTok have denied ever doing this, and there’s no public evidence that they have. But for TikTok’s opponents, the potential is enough. They’ve also cited past controversies over censorship of content that’s banned in China and ByteDance employees accessing the location data of a few US TikTok users in order to investigate employees suspected of leaking information to journalists (ByteDance said this surveillance wasn’t authorized by the company and the employees responsible were fired).

Since August 2020, when former President Trump issued an executive order calling for ByteDance to sell TikTok to an American company or be banned, TikTok has been under review by an inter-agency group called the Committee on Foreign Investment in the United States (CFIUS). Both parties have been trying to work out an agreement that would assuage national security concerns and would allow the company to continue to operate in the country. According to TikTok, the company had a draft agreement with CFIUS that was all but signed six months ago, and TikTok has for years been implementing various trust and safety measures based on its provisions. That includes a partnership with Oracle to house TikTok’s US user data on Oracle’s servers in the US; a plan to give Oracle and other third parties some oversight over TikTok’s data, algorithm, and employees; and strict limits on who has access to US user data. But the deal still has not been finalized. The Department of the Treasury does not comment on CFIUS reviews.

“The Biden administration does not need additional authority from Congress to address national security concerns about TikTok: It can approve the deal negotiated with CFIUS over two years that it has spent the last six months reviewing,” TikTok spokesperson Brooke Oberwetter said in a statement.

Warner, who is the chair of the Senate Intelligence Committee, told Vox in January that “Congress could soon be forced to step in” if the CFIUS review continued to drag on, though he also said he didn’t want to go as far as a targeted ban. Between the lack of a deal and the escalating tensions with China — including China’s friendly relationship with Russia, its use of spy balloons over the US, the bans of TikTok on federal and many state government-owned devices, and the growing number of bills calling for TikTok to be banned outright — it seems Warner has lost his patience.

Joining Warner and Thune in sponsoring the bill are Sens. Tammy Baldwin (D-WI), Deb Fischer (R-NE), Joe Manchin (D-WV), Jerry Moran (R-KS), Michael Bennet (D-CO), Dan Sullivan (R-AK), Kirsten Gillibrand (D-NY), Susan Collins (R-ME), Martin Heinrich (D-NM), and Mitt Romney (R-UT). They stressed the bipartisan support for the bill and the need to do something more than ban just one app from one company when there are many technological threats, including both software and hardware, from several companies and countries.

The Biden administration also seems to be losing patience. The New York Times reported that the White House is now “considering” asking Congress to pass a law that would make it easier for the president to issue a TikTok-banning executive order through the International Emergency Economic Powers Act by providing an exemption or doing away with the IEEPA’s limits on communications and media. Those limits tripped up Trump’s attempt to ban TikTok at the end of his tenure, as two courts said they were likely to rule that his use of the IEEPA was an illegal overreach of his authority.

Despite all of this, it’s still exceedingly unlikely TikTok will actually be banned in the US. Such a move would be all but unprecedented here, and the legality of it has yet to be tested aside from Trump’s efforts, which were dropped when the Biden administration took over and rescinded his order. TikTok bans have largely been a Republican affair, with only a few Democrats registering their support of them and many saying they oppose them.

Outside of congressional action, Republican FCC commissioner Brendan Carr and Sen. Bennet have both asked Apple and Google to remove the app from their app stores. These are requests, not orders, and there’s no indication that the companies would accede to them. But it would take the onus off lawmakers to have to do anything.

ByteDance could also sell TikTok’s US operations to an American company, but it doesn’t look like the company is interested in doing so. And it’s very possible that the Chinese government, which would have to approve such a move, would refuse to allow it.

“We appreciate that some members of Congress remain willing to explore options for addressing national security concerns that don’t have the effect of censoring millions of Americans,” TikTok’s Oberwetter said. “A US ban on TikTok is a ban on the export of American culture and values to the billion-plus people who use our service worldwide.”

In the end, a ban’s biggest obstacle may not be politics but what it would actually do. It would mean taking a beloved platform away from the estimated more than 100 million Americans who use it as well as the many businesses that are turning to the platform to advertise their goods and services. That wouldn’t go over well with them, to say the least. And, contrary to popular belief that it is just an app for kids, many TikTok users are of voting age. While TikTok is banned in a few other countries (India, most notably; it’s also not available in China, which has its own version, called Douyin), it could also have a profound impact on the rest of the internet if it’s banned in the US. This is an extreme and likely unpopular move that is nowhere near being implemented. But it seems to be a little closer than it was a few years or even months ago.

Many Republicans have said that they won’t accept anything less than an outright ban at this point, so the RESTRICT Act, though bipartisan, still has an uphill battle. But it may be the happy medium that enough lawmakers are looking for to at least do something about TikTok without having to go as far as banning it — while still leaving that as an option. And that might be good enough.

“I do think we’re gonna pass this,” Bennet, the Colorado senator, said.