Executive Order 14034 ("EO 14034"), "Protecting Americans' Sensitive Data from Foreign Adversaries"
In January 2020, the United States Army and Navy banned TikTok on government devices after the Defense Department labeled it a security risk. Before the policy change, army recruiters had been using the platform to attract young people. Unofficial promotional videos continue to be posted on TikTok under personal accounts, drawing the ire of government officials, but they have also helped boost the number of enlistees; several accounts have millions of views and followers.[1][2][3]
In 2020, the United States government announced that it was considering banning the Chinese social media platform TikTok upon a request from then-presidentDonald Trump, who viewed the app as a national security threat. The result was that TikTok owner ByteDance—which initially planned on selling a small portion of TikTok to an American company—agreed to divest TikTok to prevent a ban in the United States and in other countries where restrictions are also being considered due to privacy concerns, which themselves are mostly related to its ownership by a firm based in China.
TikTok later announced plans to file legal action challenging the order's transactional prohibitions with U.S. companies. The lawsuit against the Trump Administration's order was filed on August 24, 2020, with TikTok arguing that the order was motivated by Trump's efforts to boost re-election support through protectionist trade policies aimed at China. A separate suit filed the same day by TikTok's U.S. technical program manager Patrick Ryan against Trump and Secretary of CommerceWilbur Ross sought a temporary restraining order, arguing that his due process rights were violated and the ban was an "unconstitutional taking" of Ryan's property under the Fifth Amendment; the suit also claimed Trump's action was likely a retaliation because of TikTok videos organizing pranks against a recent Trump campaign rally.
American technology company Microsoft had previously proposed an idea to acquire TikTok's algorithm and other artificial intelligence technology, but this was declined by ByteDance, as its executives expressed concern that it would likely be opposed by the Chinese government, which in turn had criticized the Trump Administration's order as a "smash and grab" forced sale. On September 13, 2021, ByteDance suggested that it would prefer the shuttering of U.S. operations over such a sale.
Biden administration
On June 9, 2021, the Biden Administration issued Executive Order 14034, "Protecting Americans' Sensitive Data from Foreign Adversaries" ("EO 14034"). EO 14034, overturning three Executive Orders signed by Donald Trump: Executive Order 13942, Executive Order 13943, and Executive Order 13971. Despite revoking these Executive Orders, the Biden Administration's EO 14304 has called upon other federal agencies to continue a broad review of foreign-owned applications set to continuously inform the President of the risk that the applications pose to personal data and national security.[4] The White House said that, "The Biden Administration is committed to promoting an open, interoperable, reliable, and secure Internet; protecting human rights online and offline; and supporting a vibrant, global digital economy."[5]
In December 2022, Senator Marco Rubio and representatives Mike Gallagher and Raja Krishnamoorthi introduced the Averting the National Threat of Internet Surveillance, Oppressive Censorship and Influence, and Algorithmic Learning by the Chinese Communist Party Act (ANTI-SOCIAL CCP Act), which would prohibit Chinese- and Russian-owned social networks from doing business in the United States.[6][7]
On December 30, 2022, President Joe Biden signed the No TikTok on Government Devices Act, prohibiting the use of the app on devices owned by the federal government, with some exceptions.[8] Days after the Biden administration called on ByteDance, which owns TikTok, to sell the platform or face a ban, law enforcement officials disclosed that an investigation into TikTok was taking place. On March 17, 2023, the United States Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) officially launched an investigation of TikTok, including allegations that the company spied on American journalists.[9]
On January 25, 2023, Missouri Senator Josh Hawley introduced a bill to ban the platform nationwide. That bill was blocked by a forced vote in the Senate on 29 March 2023.[10]
In February and March 2023, the DATA Act and the RESTRICT Act were both introduced in the House of Representatives and Senate, respectively. The DATA Act, introduced on February 24 by Michael McCaul, aimed to ban selling non-public personal data to third-party buyers.[11] On March 7, Senator Mark Warner introduced the RESTRICT Act: if passed, it would give the Secretary of Commerce authority to review business transactions made by IT service and product vendors tied to designated "foreign adversaries" if they present an undue threat to national security, and have more than one million active users in the United States. The legislation would allow for the enforcement of orders and other mitigation measures, which could include mandatory divestment, or being prohibited from doing business in the United States.[12]
As of April 2023,[20][21] at least 34 out of 50 states have announced or enacted bans on state government agencies, employees, and contractors using TikTok on government-issued devices. State bans only affect government employees and do not prohibit civilians from having or using the app on their personal devices.
On April 14, 2023, Montana became the first state to pass legislation banning TikTok on all personal devices operating within state lines, and barring app stores from offering TikTok for download.[70][71][72] Governor Greg Gianforte signed the bill, Senate Bill (SB) 419, into law on May 17,[73][74] claiming he had banned TikTok "to protect Montanans’ personal and private data from the Chinese Communist Party."[75] The law was scheduled to take effect in January 2024.[73] However, Montana content creators filed suit against the state once the bill was signed.[76][77] The creators' lawsuit is financed and directed by TikTok, with law firm Davis Wright Tremaine representing them.[78]
The ban was blocked by US District Judge Donald W. Molloy on December 1, 2023, as he stated the ban "infringes on the Constitutional right of users and businesses". Due to the block, the ban did not come into effect as planned.[79] On January 2, 2024, Montana filed a notice to appeal the ruling to the U.S. Court of Appeals for the Ninth Circuit.[80]
Groups such as the ACLU and the Electronic Frontier Foundation (EFF) opposed the ban, stating it constituted "censorship" and "would set an alarming precedent for excessive government control over how Montanans use the internet."[81] Lobbying group NetChoice argued that the ban is an unconstitutional bill of attainder and also violates the freedom of speech clause of the First Amendment.[82] Hours after the bill was signed into law, five TikTok creators filed a lawsuit in the United States District Court for the District of Montana against the state. A spokeswoman for Montana Attorney General Austin Knudsen said that the state is "fully prepared to defend the law".[83] In a preliminary ruling November 30, 2023, federal judge Donald Molloy blocked the law citing constitutional concerns.[84] Specifically, Judge Molloy wrote that "the State fails to show how SB 419 is constitutionally permissible."[85][86]
The law faces technical restrictions. The App Store and Google Play Store track users by country, not by state, and would need to define the behavior when a user crosses state lines. While Apple and Google may be able to use IP addresses to track device locations, users may be able to use a virtual private network (VPN) to circumvent the restriction. If these app stores are found to be hosting TikTok for Montana users, violators could face fines of $10,000 per day.[87] TikTok has stated that it would need to collect data from users in order to comply with the bill.[88]
Other
In July 2020, Wells Fargo banned the app from company devices due to privacy and security concerns.[89]
In August 2023, New York City banned TikTok on government-owned devices for security reasons.[90]
Reactions
Opinion polling
A July 2020 poll from Morning Consult, with 2,200 surveyed, found that 29% of American adults supported a TikTok ban, 33% opposed one, and 38% had no opinion.[91] An August 2020 poll from Reuters/Ipsos, surveying 1,349, had 40% supporting Trump's move to ban the app, 30% opposed, and 30% uncertain.[92]
A December 2022 poll from Rasmussen Reports, surveying 1,000 likely U.S. voters, found that 68% supported proposals to federally ban TikTok, with 43% strongly supporting a ban. Conversely, 24% surveyed were opposed, including 12% who strongly opposed.[93]
A March 2023 poll from The Washington Post, surveying 1,027 American adults, found that 41% supported the federal government banning TikTok, while 25% remain opposed to a ban.[94] Another March poll, from Pew Research Center, found twice as many adult Americans support the U.S. government's ban on TikTok as oppose it (50% vs. 22%), though a significant portion (28%) remain unsure.[95]
A December 2023 poll from Pew Research Center found 38% in favor of a ban, reflecting a decrease among Republicans even amid renewed efforts by their party leaders to ban the app.[96]
A February 2024 poll by the Associated Press and NORC Center for Public Affairs Research found 31% of the respondents were in favor of a nationwide ban of TikTok, while 35% said they were opposed to it. Overall 56% said they supported a limited ban on government devices.[97]
An April 2024 poll by Reuters/Ipsos found that a majority of Americans believe that TikTok is used by the Chinese government to influence public opinion.[98]
Company response
TikTok began working on Project Texas after 2020 to address data concerns from the US government.[99] From 2019 to 2024, TikTok and ByteDance combined spent $27 million on lobbying in the United States, including their hire of SKDK, a public affairs firm, in 2023 according to Politico.[100][101]Reuters reported that according to its sources, if all legal methods to block the April 2024 ban are exhausted, ByteDance would prefer to shut down TikTok than sell it with its core algorithm, which is also subject to China's export control.[102] On May 7, 2024, ByteDance and TikTok filed a lawsuit in the United States District Court for the District of Columbia to overturn the Protecting Americans from Foreign Adversary Controlled Applications Act.[103][104]
Industry response
Some advertisers increased their spending on TikTok in 2023. Edward East, CEO of marketing agency Billion Dollar Boy, stated that instead of being intimidated by a potential ban, the industry is seeing an increase in brand investment through TikTok.[105]
In May 2024, trade association NetChoice removed TikTok as a member after facing pressures and potential investigations by US lawmakers. NetChoice had previously defended TikTok.[106]
Following the passing of the Protecting Americans from Foreign Adversary Controlled Applications Act, eight TikTok content creators sued the United States government on May 14, 2024, in United States Court of Appeals for the District of Columbia Circuit in an effort to overturn the act; the choice of venue was due to a provision in the act making it the "exclusive jurisdiction" for legal challenges of the act.[107]
Bans and attempted bans in the United States have drawn objections citing hypocrisy, protectionism, and not addressing user data privacy in general. Lawmakers making allegations against TikTok fail to mention that the United States itself surveils non-US nationals under Section 702 of FISA.[111] The types of data collected by TikTok are also collected by other social media platforms and sold through brokers to private buyers and reportedly government agencies as well, without oversight.[111][112] A researcher at Georgia Tech's Internet Governance Project is concerned that Washington's attempt to protect the US market could backfire.[111] Some researchers from the Citizen Lab and the Center for Strategic and International Studies stated that user information in general should be protected, not just focusing on one platform.[112][113] There has been no public evidence of American TikTok user data being accessed by the Chinese government.[114][115][116] Critics have also labeled a potential ban on the app an assault on freedom of speech, including congressmen Rand Paul and Thomas Massie.[117][118]
^Lin, Liza; Chun Han, Wong (April 26, 2024). "Why China Is Holding Its Fire as U.S. Moves to Ban TikTok". The Wall Street Journal. Retrieved April 26, 2024. The Communist Party's propaganda department, which regularly sends reporting guidelines to state-owned media outlets, recently instructed such media to amp up their reporting on TikTok's U.S. woes in favor of ByteDance, according to people familiar with the matter.
^ abChin, Caitlin (October 6, 2022). "U.S. Digital Privacy Troubles Do Not Start or End with TikTok". Center for Strategic and International Studies. Archived from the original on June 6, 2023. Retrieved September 10, 2023. In recent years, government agencies such as the Federal Bureau of Investigation, Department of Homeland Security, U.S. Special Operations Command, Internal Revenue Service, and Defense Intelligence Agency have reportedly purchased massive amounts of U.S. mobile app geolocation information from data brokers—without warrants or proper oversight. Furthermore, U.S. private companies, such as Clearview AI, Palantir, and Giant Oak have collectively scanned billions of social media posts—which could include TikTok content.
^Fung, Brian (March 21, 2023). "Lawmakers say TikTok is a national security threat, but evidence remains unclear". CNN. Archived from the original on September 25, 2023. Retrieved December 23, 2023. TikTok is only a product of the entire surveillance capitalism economy, Lin said. Governments should try to better protect user information, instead of focusing on one particular app without good evidence.
^Fung, Brian (March 12, 2024). "TikTok creators fear a ban as the House prepares to vote on a bill that could block the app in America". CNN. Archived from the original on March 14, 2024. Retrieved March 14, 2024. Cybersecurity experts say that the national security concerns surrounding TikTok remain a hypothetical—albeit concerning—scenario. US officials have not publicly presented evidence that the Chinese government has accessed the user data of US TikTok users.
^Klippenstein, Ken (March 16, 2024). "TikTok Threat Is Purely Hypothetical, U.S. Intelligence Admits". The Intercept. Archived from the original on April 23, 2024. Retrieved April 22, 2024. The problem with TikTok isn't related to their ownership. In 2016 Russia did this with Facebook and they didn't have to own Facebook—they just bought ads like everybody else. Trump signed a covert action order authorizing the CIA to use social media to influence and manipulate domestic Chinese public opinion and views on China.
