Democrats Seek Data Privacy Commitment From TikTok CEO

Questions remain unanswered after Chew’s testimony (see 2303230064), ranking member Frank Pallone, D-N.J., wrote the CEO. Democrats posed various follow-up questions on content moderation, algorithms, health data and national security. Data privacy experts told us the national security concerns might not be enough of a basis for a potential TikTok ban to withstand legal, constitutional and logistical scrutiny.

Chair Cathy McMorris Rodgers, R-Wash., called for the app to be banned in the U.S., during Chew’s testimony, but Pallone hasn’t publicly backed that. In his letter to Chew, Pallone continued to push for the bipartisan American Data Privacy and Protection Act, which he said would end the “gratuitous collection of American data.” Experts told us a comprehensive privacy law would be a better solution to national security concerns than seeking a total ban.

Applying any sort of ban would have legal, constitutional and technical issues, said Brookings Institution Senior Fellow Darrell West. Nearly half the U.S. population, 150 million people, actively use TikTok, so the consumer harm is obvious, he said: Many American users are dependent on income derived from TikTok. It’s unclear how a ban would be implemented, he said: The government could force Apple and Google to remove TikTok from app stores, but the previously downloaded app would remain on devices. Even if the app is successfully removed, people could access the app on the internet via a foreign URL or private network. Bipartisan legislation that could effectively allow the Commerce Department to ban TikTok has a good chance of advancing (see 2303290048), but it’s unclear whether it would withstand legal scrutiny, he said.

The proper solution is comprehensive data privacy legislation that deals with how information is handled, said Electronic Frontier Foundation Civil Liberties Director David Greene. It’s unclear what data the Chinese government is able to collect from TikTok, but if that’s the concern, Congress should address “all vectors” of information sharing, he said. The U.S. also loses its “moral authority” when it advocates for the restriction of foreign-information sharing, he said. The 1988 Berman Amendment protects the right to receive information regardless of the source’s origin and is a statement in support of the free flow of information around the world, he said. Any exception to that would be a major step back from human rights principles, he said. Greene noted the U.S. routinely criticizes foreign bans on U.S. technology, most recently the State Department’s condemnation of Nigeria’s Twitter ban.

Regardless of who owns the company, a ban would affect many American users' speech rights, said Cato Institute Technology Policy Research Fellow Jennifer Huddleston. There remain significant First Amendment concerns with the bill from Sens. Mark Warner, D-Va., and John Thune, R-S.D., which has ramifications for all mobile applications, she said. The question is whether a total ban is the least speech-restrictive option for addressing national security concerns or if other options don’t carry First Amendment concerns, she said: Such solutions include forced divestment and restrictions for the app on state-owned devices and networks.

If the government bans TikTok, it affects all users, said Jeff Westling, American Action Forum technology and innovation policy director: “There’s some good arguments there that there’s a massive restraint on speech,” but users have other social media options that don’t come with the same national security concerns.