The Biden administration claims to understand that TikTok is a major privacy and foreign interference threat. FBI Director Christopher Wray says the Chinese video hosting service “screams out with national security concerns.”
Director of National Intelligence Avril Haines says parents “should be” concerned about their children’s exposure to the app.
And Commerce Secretary Gina Raimondo argues that if you ban TikTok, “the politician in me thinks you’re gonna literally lose every voter under 35, forever.”
Raimondo’s admission that political self-interest enters into national security decisions is especially concerning now that the White House has backed Sen. Mark Warner’s (D-Va.) Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act, a proposal to give her nearly limitless discretion and authority to address foreign tech threats.
Though advertised as a solution to the national security threat of TikTok, the legislation doesn’t actually require any action be taken against any social media platform subject to instructions from the Chinese Communist Party (CCP). In fact, the bill doesn’t even mention TikTok. It also ignores the carve-outs in sanctions law that TikTok has previously used in lawsuits to dodge U.S. government action. TikTok is happy with the Warner bill and agrees it’s not a ban.
Instead, the RESTRICT Act allows—but doesn’t require—the Commerce secretary “to identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate… any risk arising from any covered transaction by any person, or with respect to any property.”
A “covered transaction” under this new authority would be virtually any commercial activity with China, Cuba, Iran, North Korea, Russia or Venezuela involving an “information and communications technology product or service.”
It’s unclear exactly how the expansive new powers created by this legislation would interact with the authority of the Committee on Foreign Investment in the United States (CFIUS), which reviews threats arising from foreign businesses operating in the U.S. In 2020, the committee recommended that former President Trump issue an executive order requiring TikTok’s parent company, Bytedance, to sell off the social media app. Though still on the books, the order never took effect after TikTok won a related court case by exploiting a sanctions law loophole.
Today, the Biden administration and CFIUS are conducting closed-door negotiations with Bytedance. The chairmen of the House Foreign Affairs and Armed Services committees have raised “the deeply concerning possibility that CFIUS may approve an agreement that would allow the People’s Republic of China (PRC) to retain significant influence over TikTok and control of its core technology, most importantly its algorithm despite significant objections from national security agencies.”
Simply put, TikTok’s national security risks cannot be meaningfully addressed while Bytedance—a Chinese company answerable by law to requests from the CCP and Chinese intelligence services—remains its owner.
Bytedance has already used the platform to spy on American journalists. One technical study of the Chinese app found that it was “highly unusual” the way TikTok has “carte blanche access to your device” and is “capable of changing the app’s behavior as it pleases without users’ knowledge.” Another analysis of seven popular social media apps found “TikTok is the only one that appears to monitor [users’] keystrokes.” TikTok admitted such capabilities exist but promised it doesn’t use them. Sure, it doesn’t.
Any data security protocols the U.S. tries to implement are good only until Bytedance pushes its next app update, and open-source research shows that the same Bytedance engineers work on TikTok and the company’s domestic Chinese apps, which are closely controlled and censored by the government. Equally concerning, TikTok offers the CCP a valuable tool for political interference or information warfare against the United States.
If the CFIUS deal falls short—and whistleblower testimony suggests it will—additional steps will be required. Raimondo is already on record as politically disinclined to ban TikTok. But the White House has chosen to back a bill that would grant her office expansive authority to decide the federal government’s response, including choosing to do nothing at all.
The administration’s support for the RESTRICT Act increases the risk that the national security threat of TikTok will be left unaddressed, by crowding out a more forward-leaning response that has already advanced in the House.
The House Foreign Affairs Committee has already approved the DATA Act, which specifically bans CCP-linked social media networks and addresses the sanctions loophole that TikTok slipped through. House Democrats argued against the bill, claiming that banning TikTok would somehow harm national security and that the bill was overly expansive and insufficiently coordinated with CFIUS review. Days later, the White House backed the far more expansive and vague RESTRICT Act in the Senate.
The RESTRICT Act may help counter technological threats from China and other foreign adversaries, but it leaves the national security threat of TikTok unresolved and open to politically motivated compromises. House Republicans have indicated their willingness to collaborate across chambers and party lines on a comprehensive response. Whatever form that consensus ultimately takes, any credible solution must include specific action to end TikTok’s threat to U.S. national security.
This piece originally appeared in The Hill on 03/15/23