Biden Signed A Bill That Could Ban TikTok Nationwide. What's Next?

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TikTok is feeling the heat after President Joe Biden on Wednesday morning signed a package of foreign aid bills which included a provision to force ByteDance, the Chinese parent company of TikTok, to sell its stake in the platform or risk getting banned in the U.S.

The platform, which has long been scrutinized by U.S. officials over privacy and national security concerns stemming from its ties to China, is one of the most popular social media apps in the U.S. with a user base of about 170 million Americans.

Following Biden’s signature on the bill, TikTok said it would mount a legal challenge to block it from taking hold. Previous efforts to ban the app were blocked by the courts, but the outcome of this upcoming legal battle remains unclear, given the bill is the first of its kind in many ways.

“It’s so unprecedented for the Congress for the United States to ban a communications app that is this popular amongst so many people,” Caitlin Chin-Rothmann, a fellow at the Center for Strategic and International Studies, told HuffPost.

“It is pretty remarkable that this is one of the first major pieces of technology regulation that Congress has passed in years, and it’s related to one company, TikTok,” Chin-Rothmann added.

What Does The Legislation Involve?

The provision forcing ByteDance to divest from TikTok or risk a nationwide ban was presented as part of a bill addressing several Republican foreign policy priorities. House Speaker Mike Johnson (R-La.) attached that bill to a wider $95 billion package authorizing additional U.S. support for U.S. allies abroad, including Ukraine, Israel and Taiwan.

Under the legislation, ByteDance would have up to 12 months to divest of the platform before TikTok would officially be banned nationwide.

A previous standalone bill which passed in the House last month by a large bipartisan majority but never made it to the floor of the Senate gave the company only six months to sell TikTok to a U.S.-based entity to avoid a ban.

Why Has TikTok Been Viewed With Skepticism By U.S. Officials?

While Congress moved fast on TikTok, lawmakers appear to be dragging their feet on other proposals addressing online safety and digital privacy more broadly.

U.S. officials and lawmakers have long viewed TikTok with skepticism, noting that the platform, under Chinese law, could be forced to share the data of its users with the Chinese government if requested to do so.

The company has repeatedly pushed back against the argument, citing the efforts it has made to address national security concerns with its Project Texas plan.

“Under Project Texas, all protected U.S. data will be stored exclusively in the U.S. and under the control of the U.S.-led security team,” the company writes on a dedicated website spelling out its U.S. data security efforts. “This eliminates the concern that some have shared that TikTok U.S. user data could be subject to Chinese law.”

Yet officials at the Justice Department and the National Security Council remained unconvinced that the proposal can ultimately address the issues with the platform, leading them to support the bill, two administration officials told The New York Times.

The company also failed to reassure lawmakers.

Chin-Rothmann said this is likely due to a combination of factors, including the general distrust in China combined with some of the company’s own privacy scandals. She also noted that TikTok’s aggressive lobbying efforts in Congress may have backfired by putting off some lawmakers.

Following the introduction of the standalone House bill, TikTok sent a pop-up message to its users in the U.S., urging them to reach out to their congressional representatives to voice their opposition to the legislation. Many of the callers that heeded TikTok’s message and reached out to congressional offices sounded like minors, the Times reported, causing some lawmakers who were on the fence about the bill to ultimately back it.

Still, Chin-Rothmann points out that the government has yet to explain to the public why forcing the company to divest or risk a ban is a better option than other measures, including comprehensive privacy regulation.

In the background, U.S. officials have been sounding the alarm bell for years.

“TikTok’s parent company is beholden to the Chinese government and so when people, when Americans stop and think about how do they feel about the power, the access, the capability, the control that TikTok has, they need to be thinking about it in terms of how do they feel about that same power, access, capability, control in the hands of TikTok’s parent in Chinese government, and ultimately in the Chinese intelligence service,” FBI Director Christopher Wray told NBC’s Nightly News host Lester Holt on Tuesday.

Wray added that TikTok enables the Chinese to collect data from millions of users, which they then use for their own “influence operations,” including for accelerating their push into AI.

“They are currently attempting to steal our AI and hack American technology every day,” Wray said. “When it comes to TikTok, we are concerned very specifically about the risks that that poses given China’s well-demonstrated playbook.”

Will TikTok’s Upcoming Court Challenge Succeed?

TikTok is getting ready for what is likely to be a protracted legal battle against the U.S. government.

“This unconstitutional law is a TikTok ban, and we will challenge it in court,” a TikTok spokesperson told HuffPost Wednesday. “We believe the facts and the law are clearly on our side, and we will ultimately prevail. The fact is, we have invested billions of dollars to keep U.S. data safe and our platform free from outside influence and manipulation. This ban would devastate 7 million businesses and silence 170 million Americans.”

The ACLU has also opposed the divestiture bill, echoing TikTok’s defense.

Jenna Leventoff, the senior policy counsel at the ACLU, previously predicted the bill “will almost certainly be struck down in court.”

Earlier efforts to ban TikTok in the U.S. have been unsuccessful.

Former President Donald Trump signed an executive order in 2020 effectively banning the app, but the effort was blocked by the courts. A judge found the Trump administration “acted in an arbitrary and capricious manner by failing to consider obvious alternatives” to the ban.

Trump has since had a change of heart and attacked Biden for showing willingness to take on TikTok. Trump’s shift in tone stems from lobbying efforts by some of his allies with close ties to Jeff Yass, a GOP donor whose investment company has a 15% stake in ByteDance, according to The Washington Post.

“Just so everyone knows, especially the young people, Crooked Joe Biden is responsible for banning TikTok,” Trump wrote on Truth Social this week. “He is the one pushing it to close, and doing it to help his friends over at Facebook become richer and more dominant, and able to continue to fight, perhaps illegally, the Republican Party.”

Biden’s campaign, which joined TikTok earlier this year, saysitplans to continue posting on the platform, albeit with enhanced security protocols.

“When the stakes are this high in the election, we are going to use every tool we have to reach young voters where they are,” a spokesperson said.

Biden made no mention of TikTok during his remarks after signing the bill into law.

Notably, even if the ban went ahead, the earliest it would take effect would be January 2025, two months after the 2024 election.

Another law meant to ban TikTok statewide in Montana starting in January was struck down by the courts after the platform sued, claiming the law violated the company’s and its users’ free speech rights.

This time, however, TikTok would be challenging federal law.

Chin-Rothmann told HuffPost the First Amendment remains TikTok’s strongest defense against the bill.

While the passage of the bill in Congress removes one barrier for the government, which can now say it has a statutory authorization to ban TikTok, it still doesn’t remove free speech concerns.

“I think that the government has a very difficult case to prove that the First Amendment will allow it to restrict speech on TikTok for all TikTok users,” Chin-Rothmann said.

But Chin-Rothmann noted that the case could go either way in the courts given its unprecedented nature.

Gus Hurwitz, a senior fellow at the University of Pennsylvania’s Carey Law School, told The Associated Press the bill could ultimately end up before the Supreme Court, where the current conservative supermajority would be likely to uphold it.