Congress is currently debating bills that would ban TikTok in the United States. We are here as technologists to tell you that this is a terrible idea and the side effects would be intolerable. Details matter. There are several ways Congress might ban TikTok, each with different efficacies and side effects. In the end, all the effective ones would destroy the free Internet as we know it.
There’s no doubt that TikTok and ByteDance, the company that owns it, are shady. They, like most large corporations in China, operate at the pleasure of the Chinese government. They collect extreme levels of information about users. But they’re not alone: Many apps you use do the same, including Facebook and Instagram, along with seemingly innocuous apps that have no need for the data. Your data is bought and sold by data brokers you’ve never heard of who have few scruples about where the data ends up. They have digital dossiers on most people in the United States.
If we want to address the real problem, we need to enact serious privacy laws, not security theater, to stop our data from being collected, analyzed, and sold—by anyone. Such laws would protect us in the long term, and not just from the app of the week. They would also prevent data breaches and ransomware attacks from spilling our data out into the digital underworld, including hacker message boards and chat servers, hostile state actors, and outside hacker groups. And, most importantly, they would be compatible with our bedrock values of free speech and commerce, which Congress’s current strategies are not.
At best, the TikTok ban considered by Congress would be ineffective; at worst, a ban would force us to either adopt China’s censorship technology or create our own equivalent. The simplest approach, advocated by some in Congress, would be to ban the TikTok app from the Apple and Google app stores. This would immediately stop new updates for current users and prevent new users from signing up. To be clear, this would not reach into phones and remove the app. Nor would it prevent Americans from installing TikTok on their phones; they would still be able to get it from sites outside of the United States. Android users have long been able to use alternative app repositories. Apple maintains a tighter control over what apps are allowed on its phones, so users would have to “jailbreak”—or manually remove restrictions from—their devices to install TikTok.
Even if app access were no longer an option, TikTok would still be available more broadly. It is currently, and would still be, accessible from browsers, whether on a phone or a laptop. As long as the TikTok website is hosted on servers outside of the United States, the ban would not affect browser access.
Alternatively, Congress might take a financial approach and ban US companies from doing business with ByteDance. Then-President Donald Trump tried this in 2020, but it was blocked by the courts and rescinded by President Joe Biden a year later. This would shut off access to TikTok in app stores and also cut ByteDance off from the resources it needs to run TikTok. US cloud-computing and content-distribution networks would no longer distribute TikTok videos, collect user data, or run analytics. US advertisers—and this is critical—could no longer fork over dollars to ByteDance in the hopes of getting a few seconds of a user’s attention. TikTok, for all practical purposes, would cease to be a business in the United States.
But Americans would still be able to access TikTok through the loopholes discussed above. And they will: TikTok is one of the most popular apps ever made; about 70% of young people use it. There would be enormous demand for workarounds. ByteDance could choose to move its US-centric services right over the border to Canada, still within reach of American users. Videos would load slightly slower, but for today’s TikTok users, it would probably be acceptable. Without US advertisers ByteDance wouldn’t make much money, but it has operated at a loss for many years, so this wouldn’t be its death knell.
Finally, an even more restrictive approach Congress might take is actually the most dangerous: dangerous to Americans, not to TikTok. Congress might ban the use of TikTok by anyone in the United States. The Trump executive order would likely have had this effect, were it allowed to take effect. It required that US companies not engage in any sort of transaction with TikTok and prohibited circumventing the ban. . If the same restrictions were enacted by Congress instead, such a policy would leave business or technical implementation details to US companies, enforced through a variety of law enforcement agencies.
This would be an enormous change in how the Internet works in the United States. Unlike authoritarian states such as China, the US has a free, uncensored Internet. We have no technical ability to ban sites the government doesn’t like. Ironically, a blanket ban on the use of TikTok would necessitate a national firewall, like the one China currently has, to spy on and censor Americans’ access to the Internet. Or, at the least, authoritarian government powers like India’s, which could force Internet service providers to censor Internet traffic. Worse still, the main vendors of this censorship technology are in those authoritarian states. China, for example, sells its firewall technology to other censorship-loving autocracies such as Iran and Cuba.
All of these proposed solutions raise constitutional issues as well. The First Amendment protects speech and assembly. For example, the recently introduced Buck-Hawley bill, which instructs the president to use emergency powers to ban TikTok, might threaten separation of powers and may be relying on the same mechanisms used by Trump and stopped by the court. (Those specific emergency powers, provided by the International Emergency Economic Powers Act, have a specific exemption for communications services.) And individual states trying to beat Congress to the punch in regulating TikTok or social media generally might violate the Constitution’s Commerce Clause—which restricts individual states from regulating interstate commerce—in doing so.
Right now, there’s nothing to stop Americans’ data from ending up overseas. We’ve seen plenty of instances—from Zoom to Clubhouse to others—where data about Americans collected by US companies ends up in China, not by accident but because of how those companies managed their data. And the Chinese government regularly steals data from US organizations for its own use: Equifax, Marriott Hotels, and the Office of Personnel Management are examples.
If we want to get serious about protecting national security, we have to get serious about data privacy. Today, data surveillance is the business model of the Internet. Our personal lives have turned into data; it’s not possible to block it at our national borders. Our data has no nationality, no cost to copy, and, currently, little legal protection. Like water, it finds every crack and flows to every low place. TikTok won’t be the last app or service from abroad that becomes popular, and it is distressingly ordinary in terms of how much it spies on us. Personal privacy is now a matter of national security. That needs to be part of any debate about banning TikTok.
This essay was written with Barath Raghavan, and previously appeared in Foreign Policy.
EDITED TO ADD (3/13): Glenn Gerstell, former general counsel of the NSA, has similar things to say.
Posted on February 27, 2023 at 7:06 AM •
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