In the United States, social media service TikTok has faced many bans and attempted bans due to national security concerns and its ownership by the Chinese company ByteDance. As of June 2023[update], federal employees and state employees in 34 (out of 50) states are prohibited from using the app on government devices. In May 2023, Montana became the first state to ban TikTok on all personal devices, though this is being challenged in court.
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 U.S. government announced that it was considering banning the Chinese social media platform TikTok upon a request from then-U.S. president Donald 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 would later announce plans to file legal action challenging the order's transactional prohibitions with U.S. companies.[4] The lawsuit against the Trump administration's order was filed on August 24, and contended that the administration's 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 (TRO), 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 the TikTok pranks targeting the June 20 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 criticized the Trump administration's order previously as a "smash and grab" forced sale and (on September 13, 2021) suggested 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.[5] 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."[6]
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.[7][8]
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.[9] 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 FBI and US Justice Department officially launched an investigation of TikTok, including allegations that the company spied on American journalists.[10]
On January 25, 2023, Missouri Senator Josh Hawley introduced a bill to ban the platform nationwide. It was later blocked in the Senate by a forced vote on 29 March 2023.[11]
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.[12] 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.[13]
As of April 2023,[14][15] at least 34 (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.
Following state bans, some public universities have also opted to ban TikTok on-campus Wi-Fi and university-owned computers. These include, but are not limited to:
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.[61][62][63] Governor Greg Gianforte signed the bill, Senate Bill (SB) 419, into law on May 17,[64][65] claiming he had banned TikTok "to protect Montanans’ personal and private data from the Chinese Communist Party."[66] The law was scheduled to take effect in January 2024.[64] However, Montana content creators filed suit against the state once the bill was signed.[67][68] The creators' lawsuit is financed and directed by TikTok, with law firm Davis Wright Tremaine representing them.[69]
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."[70] 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.[71] 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".[72] In a preliminary ruling November 30, 2023, federal judge Donald Molloy blocked the law citing constitutional concerns.[73] Specifically, Judge Molloy wrote that the State "“fails to show how SB 419 is constitutionally permissible.”[74]
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.[75] TikTok has stated that it would need to collect data from users in order to comply with the bill.[76]
Cities
In August 2023, New York City banned TikTok on government-owned devices for security reasons.[77]
Reactions
Polls
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.[78] 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.[79]
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.[80]
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.[81] 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.[82]
Industry response
Despite potential U.S. bans, some advertisers have 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.[83]
TikTok began working on Project Texas after 2020 to address data concerns from the US government.[84]
In March 2023, Politico reported that TikTok hired SKDK to lobby amid a possible federal ban.[85]
Commentary
Bans and attempts to ban the app in the United States have drawn skepticism, citing allegations of hypocrisy, protectionism, and not addressing user data privacy in general. Attempts to ban TikTok led observers to point out that the US itself surveils non-citizens under the permissive Section 702 of FISA. The types of data collected by TikTok are also collected by other social media platforms and available for purchase through brokers, often without oversight, by both private and state entities.[86] A researcher at Georgia Tech's Internet Governance Project raised the question of whether protectionism of U.S. corporations, rather than privacy concerns, is the primary motivation of the US government. An analyst at the Center for Strategic and International Studies wrote that it would make more sense to focus on the protection of data directly rather than on any particular platform.[87] A researcher at the Citizen Lab also stated that governments around the world should better protect user information in general from being exploited by Big Tech, not focus exclusively on one app.[88]
Potential implications
The Committee on Foreign Investment in the U.S. (CFIUS) threatened to ban TikTok if ByteDance would not sell its stake. CFIUS is a government agency that reviews foreign investments in U.S. companies for national security reasons. In this case, CFIUS was concerned that TikTok could be used by the Chinese government to gather data on U.S. citizens.[89]
If TikTok is banned in the U.S., Americans will not possess the ability to connect to the app with just a VPN. Instead, those who wish to continue using the app may need to use a proxy server or a secure browser, in order to circumvent a ban.[90]
