Experts say that the enactment of a new law that strengthens the government’s authority to regulate speech is necessary for the Biden administration to prohibit the popular Chinese-owned social media app TikTok.b
TikTok, which is owned by China’s ByteDance, is facing increasing pressure to be banned by politicians and national security hawks who are concerned that the app might be used to censor content, manipulate users, and send personal data from Americans to Beijing, all of which the business disputes.
The Trump administration’s last attempt to prohibit the app was thwarted by the courts, in part because doing so would have been a violation of free speech rights.
The RESTRICT ACT, introduced this month by senators of both parties, would give the Commerce Department additional authority to restrict foreign technology that poses a threat to national security. This implies that any action to block the app would largely depend on its passage. Lawyers and China experts argued that would violate the free expression provisions in the legislation-
“RESTRICT is really helpful because it gives this completely new, from scratch, legal authority that doesn’t have any of those 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’s a much stronger, cleaner legal authority.”
TikTok previously criticized the RESTRICT act, saying-
“The Biden Administration does not need additional authority from Congress to address national security concerns about TikTok: it can approve the deal negotiated with (the Biden administration) over two years that it has spent the last six months reviewing.”
Shou Zi Chew, CEO of TikTok, will testify before the House Energy and Commerce Committee on Thursday, where he will be asked difficult questions by Republicans who want to prohibit the app.
TikTok, which FBI director Christopher Wray claimed in November might be used to “manage software on millions of devices,” has been in the crosshairs of the U.S. government for years, since prominent Republican Senator Marco Rubio called for its scrutiny in 2019.
Former President Trump tried to ban TikTok in 2020 by issuing an executive order giving the Commerce Department comparable powers to those in the RESTRICT act, but the courts overturned the order.
However, the executive order on which Trump relied ran into significant resistance because it was based on the International Emergency Economic Powers Act, which excludes the import or export of “informational materials” and “personal communication” as a result of the Berman amendment, which was intended to protect free speech.
Meanwhile, the Committee on Foreign Investment in the United States has been trying for over two and a half years to get Bytedance to sell its TikTok company in the United States. This is a strong committee that reviews foreign investments for potential threats to national security.
White House national security adviser Jake Sullivan endorsed the RESTRICT Act on March 7 saying it-
“would strengthen our ability to address discrete risks posed by individual transactions, and systemic risks posed by certain classes of transactions involving countries of concern in sensitive technology sectors.”
Nevertheless, the law is unlikely to offer any quick fixes for those who are demanding a ban on the app. Despite widespread support for the bill, no related legislation has been submitted in the House. It is also unclear when Congress might take it up; some speculate that it could be included in a defense bill before the end of the year.
Some legal experts have warned that additional restrictions on banning TikTok could still be challenged under the First Amendment.
“Realistically, I don’t see this tool coming into play until 2024,” said CFIUS lawyer Nicholas Klein with DLA Piper. “And there will most likely be a legal challenge if its used to ban TikTok.”
Our coverage of the article, “Experts Say Biden Needs New Legislation To Outlaw Tiktok Due To Limited Tools,” comes to an end with this sentence.
