The TikTok Ban Bill and the Quest for Digital Sovereignty and Freedom
Banning an app used by millions of people requires very clear Intent. Clarifying Intentions is an Imperative for Public Dialogue on App Bans
Hello Cyber Builders 🖖
This week, I felt compelled to address a significant development from last week—the U.S. House of Representatives passing a bill concerning a potential TikTok ban, with President Biden poised to sign it should it clear the Senate. Yet, this situation transcends TikTok. It beckons us to consider broader themes like digital freedom, market regulation, international collaboration or rivalry, and the overarching security considerations in the digital realm.
There's no denying the profound impact social media and various applications have on our lives, especially concerning our children's mental health. These platforms, while connecting us in unprecedented ways, are also battlegrounds for misinformation and can potentially serve as vectors for malware. I am not denying these facts, but I’d like to emphasize the necessity for a nuanced approach to control and navigate beyond the political spectacle often surrounding cases like TikTok's.
As we delve into this intricate narrative, let's ponder a critical question.
In an era where digital boundaries are increasingly blurry, how do we strike a delicate balance between safeguarding national security and preserving the open, free nature of the Internet?
This question isn't just about an app (e.g., TikTok) or a single state (US or EU). It is about all of them and all relations between states. In this post, I am looking at various angles to understand what is at stake and trying to have a balanced analysis. Feel free to share your point of view in the comments section.
Let’s dive in.
The U.S. Bill and 'Foreign Controlled Application'
A recent U.S. bill - now famous as the “TikTok Ban Bill” - sparked my interest. At its core, the bill targets applications and platforms under what it terms "foreign control." Specifically, it spotlights companies "20% owned by a foreign adversary or a person subject to the direction of an adversary."
This definition is pivotal, yet its breadth brings ambiguity for broad applications. Especially because it’s unclear why a shareholder with 20% (why not 10% or 30%) would have an impact on the data management or the operations of the company?
Moreover, what is the exact definition of "being subject of the direction of an adversary”. If you have an uncle living in China, does it count? I am joking, but as we are discussing here the capacity of a government to ban an application used by millions (Tiktok now, but more tomorrow), these definitions matter.
Below is the exact language of the bill.
(1) CONTROLLED BY A FOREIGN ADVERSARY.—The term “controlled by a foreign adversary” means, with respect to a covered company or other entity, that such company or other entity is—
(A) a foreign person that is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country;
(B) an entity with respect to which a foreign person or combination of foreign persons described in subparagraph (A) directly or indirectly own at least a 20 percent stake; or
(C) a person subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).
And the bill explicitly targeted Tiktok and ByteDance
(3) FOREIGN ADVERSARY CONTROLLED APPLICATION.—The term “foreign adversary controlled application” means a website, desktop application, mobile application, or augmented or immersive technology application that is operated, directly or indirectly (including through a parent company, subsidiary, or affiliate), by—
(A) any of—
(i) ByteDance, Ltd.;
(ii) TikTok;
(iii) a subsidiary of or a successor to an entity identified in clause (i) or (ii) that is controlled by a foreign adversary; or
(iv) an entity owned or controlled, directly or indirectly, by an entity identified in clause (i), (ii), or (iii); or
(B) a covered company that—
(i) is controlled by a foreign adversary; and
(ii) that is determined by the President to present a significant threat to the national security of the United States following the issuance of—
(I) a public notice proposing such determination; and
(II) a public report to Congress, submitted not less than 30 days before such determination, describing the specific national security concern involved and containing a classified annex and a description of what assets would need to be divested to execute a qualified divestiture.
The impact is broader than TikTok
As it stands now, the legislation isn't just about TikTok; it's emblematic of a larger narrative concerning digital sovereignty and the intricate dance of international digital politics.
The "20% ownership" criterion is particularly intriguing, as it opens the door to scrutinizing many applications beyond those in the immediate spotlight. It raises fundamental questions about ownership, influence, and the invisible threads that might bind technology companies to geopolitical interests around national security.
It is also about how the US government is protecting its technology giants, such as Google, Facebook, X, and other social media and content platforms. Yes, it is fair to ask for reciprocity: As Facebook can not deploy its apps and sell its ads in China, why can a Chinese company do it in the US market? It’s a trade fairness issue.
But many others will argue it’s more about defending the privacy of US citizens’s data. And others are speaking about national security and “attacks” on US citizens.
This lack of clarity is why many in the USA question the lawmakers' intent.
If we try to guess the intent, we end up with:
National Security - Tiktok is targeting US Citizens and intentionally distributing misinformation
Privacy - Tiktok is exfiltrating US Citizens private data and using it for its interests
Trade Fairness - Tiktok is doing business in the USA with US companies (e.g., Facebook, X) can not do in China
Is it one of these, all of them? It is unclear.
Voices of Concern: The U.S. Society's Diverse Reactions to the TikTok Legislation
An EFF article (LINK) raises critical questions about the TikTok bill, probing its focus on privacy versus content, questioning the absence of comprehensive privacy legislation, scrutinizing potential First Amendment conflicts if content is targeted, and examining the nature of the proposed ban, including conditions like forced sales. Additionally, it questions whether the bill aligns with the U.S. commitment to the free flow of information, pointing out the need for clarity and consistency in the bill's objectives and enforcement mechanisms.
There are the five critical questions about the TikTok ban bill:
Is it about privacy or content?
If it is about privacy, why not pass comprehensive privacy laws?
If about content, how to avoid First Amendment violations?
Given potential forced sale conditions, Is it a ban or something else?
Does the bill align with the U.S. principle of supporting the free flow of information?
I would add the sixth question: if the bill concerns national security, can the US government share proof of the Chinese government's actions through TikTok?
I also found an interesting op-ed column in the New York Times (LINK). Julia Angwin is debating that the TikTok ban is not solving what US citizens want: a regulation that protects their personal data and privacy.
Let me quote her:
America is politically polarized. But there is an issue on which both sides agree: We need more privacy, and TikTok should not be banned.
A record 72 percent of Americans want “more government regulation” of what companies can do with their data, according to an October report from Pew Research Center. And only 31 percent of Americans favor a nationwide ban on TikTok, according to a February Associated Press/NORC opinion poll.
Conclusion
But why this bill, and why now? The motivations seem to be manifold, woven from threads of national security concerns, market dynamics, and the specter of misinformation spreading unchecked across digital platforms. The U.S. government's stance seems driven by a complex blend of protecting domestic interests and ensuring that the digital playground remains fair and secure for all.
However, as we peel back the layers, we're confronted with the inherent tensions between these protective measures and the ideals of digital freedom and open innovation. How do we navigate these waters without capsizing the very values that underpin the digital age? This question isn't just rhetorical; it's a call to action for policymakers, technologists, and citizens alike to engage in a thoughtful dialogue on the future of our digital world.
As we delve deeper into the fabric of this legislation, let's keep in mind the broader implications for our global digital ecosystem. The U.S. bill is a mirror, reflecting the complex interplay of power, freedom, and responsibility in the digital age.
Let’s continue this conversation all together.
Laurent 💚