Today, Explained - Can Congress ban TikTok?

Episode Date: March 20, 2024

Probably not. Punchbowl’s Andrew Desiderio and Kate Ruane from the Center for Democracy and Technology explain. This episode was produced by Amanda Lewellyn and Jesse Alejandro Cottrell, edited by Amina Al-Sadi, fact-checked by Laura Bullard with help from Hady Mawajdeh and Matt Collette, engineered by David Herman, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Back in 2020, the former president said he wanted to ban TikTok. China! It didn't happen. People continued to TikTok. Back in May of last year, Montana tried to ban TikTok. Montana's governor just signed the country's first law completely banning TikTok. It didn't happen. A federal judge in Montana has blocked a statewide ban on TikTok from going

into effect next year. People continued to TikTok. Last week, the United States House of Representatives passed a bill that could ban TikTok. Two thirds being in the affirmative, the rules are suspended, the bill is passed. And without the objection, the motion to reconsider is laid on the table. And on Today Explained, we're going to tell you why it's not going to happen, why TikTok will once again prevail, coming up on the show. BetMGM, authorized gaming partner of the NBA, has your back all season long. From tip-off to the final buzzer, you're always taken care of with a sportsbook born in Vegas. That's a feeling you can only get with BetMGM.

And no matter your team, your favorite player, or your style, there's something every NBA fan will love about BetMGM. Download the app today and discover why BetMGM is your basketball home for the season. Raise your game to the next level this year with BetMGM, a sportsbook worth a slam dunk and authorized gaming partner of the NBA. BetMGM.com for terms and conditions. Must be 19 years of age or older to wager. Ontario only.

Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. You're listening to Today Explained. Sean Ramos-Furman back with the BBL. Andrew Desiderio is here with me. He's a senior reporter at Punchbowl News where he's been covering a bill in the House of Representatives that would pump the brakes on TikTok, a bill that seemingly came out of nowhere.

There's been a lot of classified briefings on Capitol Hill that members of Congress have sat in on over the last year plus about, you know, the threat to national security posed by TikTok. They've heard a lot about this in public as well. But nobody really knew, aside from these members on the House Select Committee on China, that they were even working on this particular piece of legislation. And I suspect it was so that TikTok would be caught off guard, in a sense, and wouldn't have the time to, you know, get its lobbying operation up and running and make sure that they were getting out ahead of this issue and trying to kill it. And I'd say they were largely successful, not just because the bill passed, but because TikTok

had to resort to some really desperate tactics to try to lobby against this piece of legislation. When TikTok forced a pop-up on all of its users asking for their zip code information and then calling members of Congress. So I got this message on TikTok about call your representative, right? Type in my area, my zip code, and it gave me a phone number. And surprisingly, I called that phone number and they answered the phone. I want to share it with all of you. Even though it's a little embarrassing, I actually called my representative. Hi, I'm calling to ask you about the TikTok ban. That's just a taste of how this app could be weaponized.

Imagine a more consequential vote going forward about an authorizing force to defend Taiwan or altering permanent normal trade relations status with China. That's the risk we're trying to guard against. That was ultimately what made this go so fast. In addition to the fact that you had buy-in from House Republican leadership, you had buy-in from House Democratic leadership, and then you had even a statement of support from the president of the United States and from the White House press secretary as well. And so what we see is this bill is important.

We welcome this step on ongoing efforts to deal with that, to address that, and we appreciate the bipartisan work. The administration has been giving classified briefings to members of Congress on this particular issue for many, many months, right? They've been telling Congress that TikTok can be used and is being used by the Chinese Communist Party to advance Beijing's malign intentions and their efforts to sort of undermine the American political system, American democracy, and potentially interfere in our elections as well. And the more that the American intelligence community has learned about TikTok and its connections to its parent company, ByteDance, the more worried they have become about its

possibility to be used as an espionage tool in a war of some sort between the United States and China. So what does this bill do to address that problem? What exactly is the House of Representatives proposing here? This is not an attempt to ban TikTok. It's an attempt to make TikTok better. Tick, tack, toe. A winner. A winner. So this bill is, you know, they don't like to call it a ban. They call it a forced divestiture, which does not roll off the

tongue as easily as the word ban. But basically what it does is it gives TikTok's parent company, ByteDance, 180 days to be sold to a U.S. company, a British company, whatever company, right, as long as it's not connected to ByteDance in any other way. And if that's not done within 180 days, then the TikTok app is banned in the United States. It's removed from the app store, and then people suddenly cannot use it anymore. You know, the national security argument here for this forced divestiture legislation is that ByteDance is a Chinese company and under Chinese national intelligence laws, all information accumulated by companies in the People's Republic of China are required to be shared with the Chinese intelligence services.

Your location would be known. Any personal identifiable information, any messages, any sensitive data that you entrust to the apps on your phone. Everything that TikTok has on Americans basically is accessible by the Chinese government. And I think that's what is worrying folks the most about this and how this works. But what folks keep saying, the tech experts on this at least, is that it is virtually impossible that ByteDance would agree to sell TikTok because they would be giving up so much proprietary information. They would be giving up so much information about this algorithm, which members of Congress have said really is the best social media algorithm in the world. So the argument

that's been thrown out there by people who are calling this a ban is that there is no way at all that ByteDance would sell TikTok. How many Democrats and Republicans voted in favor of this, let's not call it a ban, forced divestiture? Was that it? Forced divestiture? Yeah, forced divestiture, yeah. So you're basically forcing ByteDance to divest from TikTok or, you know, the other way around. Say it three times fast, I dare you. Forced divestiture, forced divestiture, forced divestiture. How's that? Oh my gosh, what a pro, what a pro. So to answer your question, it got 352 votes in the House of Representatives and in a body that has 435 voting members. Right now they are around 430 with all of the vacancies that they have.

352 is just a massive blowout of a number. So it is really – at this point it's impossible for the Senate to ignore it, but I think Senate leaders will do their best to try to ignore it without igniting a firestorm of criticism from the bill's proponents. Yeah, do we have any idea how the Senate might vote here? I mean, in the House you have, what, Nancy Pelosi agreeing with Jim Jordan. What's going to happen in the Senate? Right, you've certainly got some strange bedfellows there when it comes to the ideological battle lines here on this legislation. So the key thing to look out for in the Senate is the fact that the chairman of the Senate Intelligence Committee, Mark Warner, supports the legislation. Manipulating that algorithm can mean what kind of information you're going to see. And

if you don't think that could be used as the most powerful propaganda tool ever, then I don't think you appreciate that. In an election year. In an election year, then you don't get the threat. And of course, as a member of the Senate Intelligence Committee, he gets the same classified briefings as the president of the United States. So he's the most aware of the national security threats that TikTok poses in the United States. On the other side, you've got the chair of the Senate Commerce Committee, Maria Cantwell, a Democrat from Washington state. Senator Cantwell does not support this legislation, and her committee because that bill will never go anywhere under Maria Cantwell's chairmanship of that committee, right? And it's actually come out recently that a number of Senator Cantwell's former staffers, both in her personal office as well as on the committee, either work for or lobby for TikTok, which I think is an

important thing for people to understand here, because the lobbying money that's being thrown at this effort is just, it's very intense. So Senate Majority Leader Chuck Schumer has to make a decision. Does he go with his Intelligence Committee chair, or does he go with his Commerce Committee chair? I think at the end of the day, what he's going to end up doing is soliciting feedback from different members of the Democratic caucus and seeing what they prefer in terms of an avenue to address TikTok. But I think the fact that this bill got 352 votes in the House of Representatives sends a message to the Senate and to Majority Leader Chuck Schumer in particular that it is just not tenable for the Senate to simply ignore this bill.

What about the former president somehow still calling shots in Congress, famously not a fan of TikTok? Yeah, it's truly bizarre. I mean, Donald Trump was pretty much the reason why the federal government started evaluating TikTok as a national security threat in the first place. We're looking at TikTok. We may be banning TikTok. We may be doing some other things or a couple of options. It was his executive order in 2018 that kind of set all of this into motion and got people thinking about, hey, maybe we do need to ban TikTok. So the fact that he's walking away from it now is not necessarily surprising because in the era of Donald Trump, flip-flops on political issues

don't mean as much as they used to. Poor John Kerry. Yeah, exactly, right? John Kerry, whichever way the wind blows. So I think the way he's looking at this is just through a purely political lens, right? If this legislation passes the Senate and the president signs it into law, he can use it to his advantage in the election and say, Joe Biden took away your TikTok. I won't do that as president. There are a lot of young kids on TikTok who will go crazy without it. There are a lot of users. There's a lot of good, and there's a lot of bad with TikTok. But the thing I don't like is that without TikTok,

you can make Facebook bigger. And I consider Facebook to be an enemy of the people, along with a lot of the media. So we've talked about the former president, we've talked about the current president, we've talked about the Senate, we've talked about the former president. We've talked about the current president. We've talked about the Senate. We've talked about the House. What about the Supreme Court? Is there a constitutional question here at play? Yeah. So one of the main arguments against this piece of legislation is that it's unconstitutional to single out a private company in a piece of legislation. And this is doing exactly that? And this is doing exactly that, right? But the proponents argue, again, I'm not a constitutional lawyer. I'm not even a lawyer at all.

But the proponents argue that the bill has been crafted in a way that it will withstand judicial scrutiny. That is their opinion, obviously. If this were to pass and get signed into law by the president, there would immediately be litigation on it and it could very well go up to the Supreme Court.

So there could be a number of issues at play here. There could be First Amendment issues at play. It's very unclear how that would shake out because the sort of partisan divide or the ideological divide, I should say, on the court does not necessarily dictate how things will shake out on this particular issue. Because as you mentioned before, you've got Nancy Pelosi and Jim Jordan on the same page on this, right? It is a very, very odd issue where you have these strange bedfellows type of alliances. And if anybody's going to try to predict which way the Supreme Court is going to go on this, you know, good luck. Andrew Desiderio, Punchbowl.news on the World Wide Web. Coming up on Today Explained, a lawyer. Support for Today Explained comes from Aura.

Aura believes that sharing pictures is a great way to keep up with family, and Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an Aura frame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an AuraFrame for himself. So setup was super simple. In my case, we were celebrating my grandmother's birthday and she's very fortunate. She's got 10 grandkids. And so we wanted to surprise her with the Aura Frame. And because she's a little bit older, it was just easier for us to source all the images together and have them uploaded to the frame itself.

And because we're all connected over text message, it was just so easy to send a link to everybody. You can save on the perfect gift by visiting AuraFrames.com to get $35 off Aura's best-selling Carvermat frames with promo code EXPLAINED at checkout. That's A-U-R-A frames.com promo code EXPLAINED. This deal is exclusive to listeners and available just in time for the holidays. Terms and conditions do apply. Support for today Explained comes from Ramp. If you're a finance manager, you're probably used to having to toggle between multiple disjointed tools just to keep track of everything. And sometimes that means there's limited visibility on business spend. I don't know what any of that means, but Ramp might be able to help. Ramp is a corporate card and spend management software designed to help you save time and put money back in your back pocket. Ramp's accounting software automatically collects

receipts, categorizes your expenses in real time. You can say goodbye to manual expense reports. You will never have to chase down a receipt again. You can customize spending limits and restrictions so your employees are empowered to purchase what your business needs. And you can have peace of mind. And now you can get $250 when you join Ramp. You go to ramp.com slash explained, ramp.com slash explained, ramp.com slash explained. Cards are issued by Sutton Bank, a member of the FDIC, and terms and conditions do apply. This is not an attempt to ban TikTok. It's an attempt to make TikTok better.

TikTok. Today Explained, you wanted a lawyer, so we got you a lawyer. Kate Ruan is the director of the Free Expression Project at the Center for Democracy and Technology, and she has strong feelings about this potential ban on TikTok. I do. I do not like it for many, many reasons. We asked her why. TikTok has estimated that it has about 150 million users in the United States right now, and this bill, if it passes, will first and foremost harm all of TikTok's users who use the application to create, to exchange information, to get their news,

to organize campaigns. The message that I really want to get home to the American government and everybody that is trying to pass this bill is you will be destroying small businesses like us. This is our livelihood. You will be destroying the American dream that we really believe in. While this bill, if it passed, might, to some small degree, lessen China's access to American data, it far from eliminates it. So the bill doesn't even solve one of the big issues that it is being posed as being necessary to solve. You know, the United States is one of the leading countries advocating for freedom online. The United States frequently criticizes authoritarian regimes, including China, Pakistan, Russia, and Uganda, when those countries restrict access to the open internet. We have also criticized Nigeria, for example, when it banned Twitter back in 2021.

We condemned the ban and reiterated that the fundamental human right of free expression and access to information is a pillar of democracy and urged the country of Nigeria to reverse its decision. If the U.S. were now to put its statutory imprimatur on wholesale, what is essentially going to wind up being a wholesale ban of TikTok, because we do not like its ownership, we are going to see copycat measures around the world pretty quickly. Okay, so it's not just not going to work. It's not just going to infringe on freedom of expression in the United States, but it also makes us know better than authoritarian regimes around the world that clamp down on free speech or technology. And that's before we get to the fact that it probably raises significant constitutional concerns. Lawmakers obviously didn't consult you before they wrote this bill, did they?

Sorry, I'm assuming. I don't know who they consulted, but it could not have been many people because this bill was introduced on a Tuesday and it was marked up in committee in the House on a Thursday and then passed on the very next Wednesday. So this thing was on a rocket ship through the House of Representatives. And this rocket ship is evidently fueled by a fear of whether China might be manipulating American public opinion or whether TikTok might be collecting Americans' data and sharing it with the Chinese government. Are those concerns at least valid? Do we have receipts that this stuff is actually happening? Not that I'm aware of. There is essentially no existing public evidence that

we are experiencing a serious and immediate harm to national security as a result of TikTok's ownership structure and its operation within the United States. We do know that TikTok does collect Americans' data. Just about every social media company does. That is how they make their money. How do you sustain a business model in which users don't pay for your service? Senator, we run ads. We also know that Chinese ownership over ByteDance may, under Chinese law, provided greater access to TikTok's data, but there is no evidence that TikTok has ever provided that data to the Chinese government. TikTok says that they have not. And then the other concern that you raised is the one in which the United States government is concerned that the Chinese government is somehow controlling the speech of TikTok.

And we have absolutely no evidence of that either. And this bill that's working its way through Congress doesn't do much to even address these concerns since there is no evidence that there's any credibility to these concerns? This bill does nothing but raise those concerns. It does not resolve the national security concerns surrounding China's access to Americans' data because China can still buy it from data brokers. China can still use its own surveillance and its allies'

surveillance apparatuses. And other online entities do this as well. Other online entities like Meta and Google and X, which used to be Twitter, collect, keep, and capitalize off far more data than they need to provide the services that their users are asking for, and they use that data to make money, and sometimes in ways that cause our devices to leak data every time we're served an ad online. The federal government is buying your data from data brokers. Most of it is sold by vendors claiming the data is anonymous, but experts argue in today's digital world, it is easy to reveal personal information.

So this bill does nothing to address that concern. It also does nothing to address the concern of Chinese propaganda. If China is indeed using TikTok to try to get its message out there, it is using other social media services in the same way. It is using Meta. It is using Google. It is using all of those social media services in an attempt to manipulate public opinion. If this law went into effect, it feels like there's going to be a lot of TikTok users in this country who would be very angry if they could no longer update or even download the app. If the law is passed, is it likely to get challenged in the courts? If history is our guide here, yes, the law will be immediately challenged. TikTok, when it was banned in Montana, sued the state of Montana, along with a number of TikTok users in Montana.

A federal judge has temporarily blocked the state of Montana's ban of the social media app TikTok. I would expect the same thing to happen here, either by TikTok itself or by a group of its users. A court is going to have to determine that a forced sale is necessary to prevent extremely serious, immediate harm to national security. However, there is no public evidence of a national security threat that rises to this level. So the government will have to somehow offer that evidence to a court. And one of my concerns with that is that the government will offer those concerns to the court, but not make those concerns in any way public. And we're seeing something very similar right now where members of Congress are getting confidential briefings

about the dangers of TikTok, but that information isn't being made public. So there is no way for the public to evaluate whether this is true or not. When it comes to suppressing speech, that is not how this is supposed to work. We are supposed to understand what the government's compelling interests are and how its responses to those compelling interests are tailored to addressing them. Had Congress called you up last week, the week before, and said, we really want to do something here, we're really concerned about American privacy, what would you have said? What would you have had them do instead? I would have had them pass the American Data Privacy and Protection Act. It is comprehensive

bipartisan consumer privacy legislation. I believe today's gains on the American Data Privacy Protection Act does include common sense data and privacy measures. It would meaningfully address many of the concerns that are being raised about TikTok right now by preventing TikTok from collecting more data than it needed to collect to provide its service just to TikTok, but to every other company that engages in these concerning data collection and use practices. So why didn't Congress get together and pass that bill instead of this one? That's a question for them. I don't really understand what is taking so long. There is consensus about the need for comprehensive consumer privacy legislation. There is bipartisan support in both the House and the Senate for the ADPPA. I am baffled by what the delay here is. We have known this is a security risk, a privacy risk for Americans for 10 years now.

That was Kate Ruan of the Center for Democracy and Technology. Kate told us to ask Congress why they hadn't passed the American Data Privacy and Protection Act. So we called up the bill's co-sponsor, Representative Jan Schakowsky, and asked her why we're trying to ban TikTok instead of passing broader privacy protections for Americans. I'll tell you why.

China, China, China. There is this great fear that is being used, and I'm not going to contradict that, about the role of China. That this is somehow of an urgent national security issue. This is the most important thing that we do to protect ourselves from China. So there was a scare aspect there. And so that bill, which is, you know, pretty narrow against our adversaries, does nothing to really move the big tech companies, the meta, the Twitter.

And we need to go further. We need to act right now. Congresswoman Jan Schakowsky, thanks, Jan. She, by the way, voted nay on the TikTok bill. Today's episode was produced by Amanda Llewellyn and Jesse Alejandro Cottrell. It was edited by Amina Alsadi and mixed by David Herman. Laura Bullard fact-checked with help from Matthew Collette and Hadi Mawaddi. This is not an attempt to ban TikTok.

It's an attempt to make... Today Explained. ...better. Tick, tack, toe. A winner.