WASHINGTON The Biden administration is under pressure to ban popular Chinese-owned social media app TikTok, but any move likely depends on the passage of a new law that bolsters the authority to regulate speech, experts said.
Pressure is mounting from lawmakers and national security hawks to ban TikTok, owned by China's ByteDance, over fears that the app could censure content, influence users, and pass Americans' personal data to Beijing, allegations that the company denies.
The app was banned in part because of the fact that it was a violation of free speech protections, according to a previous bid by the Trump administration.
Any move to block the app will depend on the passage of legislation like the RESTRICT ACT, a bipartisan bill introduced by Senators this month that gives the Commerce Department new power to ban foreign technology that poses a national security risk. Lawyers and China watchers said that that would circumvent the speech protections embedded in existing law.
RESTRICT is really helpful because it gives a completely new legal authority that doesn't have any complications under other laws, said Emily Kilcrease, a senior fellow at the Center for a New American Security and former deputy assistant U.S. Trade Representative. It is a stronger, cleaner legal authority. TikTok previously criticized the RESTRICT act, saying the Biden Administration doesn't need additional authority from Congress to address national security concerns about TikTok, because it can approve the deal negotiated with the Biden administration over two years that it has spent the last six months reviewing. TikTok chief executive officer, Shou Zi Chew, will testify before the House Energy and Commerce CommitteeHouse Energy and Commerce Committee on Thursday, and will face tough questions from lawmakers who want to ban the app.
Since powerful Republican Senator Marco Rubio called for a review in 2019, TikTok, which FBI director Christopher Wray said in November could be used to control software on millions of devices.
The Commerce Department had similar powers as the RESTRICT act because of the executive order issued by the courts that Donald Trump tried to block TikTok in 2020.
The executive order relied on by Trump had a major hurdle: it derived its power from the International Emergency Economic Powers Act, which consists of the import or export of informational materials and personal communication through the Berman amendment, which sought to protect speech.
A move by the Committee on Foreign Investment in the United States, which scrutinizes foreign investments for national security risks, has forced Bytedance to divest its U.S. TikTok business two and a half years later.
On March 7th, the White House national security adviser Jake Sullivan endorsed the RESTRICT Act, saying that it would strengthen our ability to address discrete risks posed by individual transactions and systemic risks posed by certain transactions involving countries of concern in sensitive technology sectors. The bill will likely give no immediate solutions for those who want to ban the app. The legislation enjoys bipartisan support, but there is no companion bill in the House. It's not yet clear when Congress might take it up - and some think it might be attached to a year-end defense measure.
Some experts said that the new legal tools to ban TikTok could still lead to First Amendment challenges.
"I don't think this tool will come into play until 2024,'' said Nicholas Klein, CFIUS lawyer with DLA Piper. If it was used to ban TikTok, there will be a legal challenge.