Bill might not be a TikTok ban after all

Civil rights groups and journalists alike have sounded the alarm this week that a new bipartisan law could ban TikTok from the US — but the real point is to force a sale.

The Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act was introduced Tuesday by Sen. Mark Warner (D-Va.) and Sen. John Thune (RS.D.). The bill would allow the Commerce Department to review and potentially ban any technology in which US user data interacts with a “foreign adversary … and poses an unreasonable or unacceptable risk to national security,” according to a opinion announcement of the bill.

The bill never mentioned TikTok by name, but is clearly aimed at the popular Chinese-owned brand. In an interview with Fox News, Warner even explicitly said that the bill could be used to ban TikTok.

The White House signaled its support for the RESTRICT bill almost immediately when it was announced, urging Congress to act quickly.

But as enthusiasm for the law has grown, critics and pundits have begun to suggest that given the way the legislation is written, something else may be at hand.

Michael Sobolik, a fellow at the American Foreign Policy Institute, noted a clear exception in the legislation that appears to be affecting TikTok.

“If this thing passes, the chances of a TikTok ban or forced divestiture become incredibly slim,” he said in one tweet. “Why? The bill slows down action against transactions under CFIUS review. TikTok is currently under review by CFIUS.”

The Committee on Foreign Investment in the United States (CFIUS) has a review process to investigate foreign investments with potential national security risks, and TikTok has been under review since ByteDance bought US company Musical.ly in 2017.

Just last month, Sen. Richard Blumenthal (D-Conn.) and Sen. Jerry Moran (R-Kan.) sent Janet Yellen, Secretary of the Treasury and Chair of the CFIUS, a memo urging the panel to close its investigation and impose restrictions on tik tok.

“CFIUS has the power to block foreign acquisitions of American companies or technologies, or to order their divestment, including on the basis of protecting sensitive consumer personal information,” Blumenthal said in the letter.

Blumenthal said the interagency task force should introduce strict regulations for TikTok.

“We demand immediate action from CFIUS to protect consumers and our national security by completing ongoing investigations and imposing strict remedial measures to disconnect ByteDance from American users of TikTok,” he said. “The committee should not approve a deal with TikTok unless it can fully ensure that our personal data and access to information is free from espionage and interference by the Chinese government.”

Evan Greer, director of digital rights group Fight for the Future, said in a statement to the Daily Dot that they believe the CFIUS review and the provision in the RESTRICT Act could result in a sale of TikTok, but also said, that the CFIUS review carveout could be an “exit hatch” for Biden to resist a ban depending on the outcome of the review.

“Part of the goal of all this is to use the CFIUS process to sort of get ByteDance to sell TikTok to a US company. It’s unclear how likely or feasible that is,” Greer said.

In a statement to the Daily Dot, Warner’s office alluded to just that.

“The RESTRICT Act actually strengthens the hand of the federal government and creates a more robust backing — like an outright ban — when TikTok attempts to challenge or refuses to comply with a divestment order,” they said.

Thune’s office did not respond to a request for comment.

This isn’t the first time a TikTok sale has happened. In 2020, the Trump administration said it would ban TikTok if ByteDance doesn’t sell it to an American company. The administration got stuck and TikTok said it stopped hearing from them.

While a sale may seem like the most likely outcome, there are still concerns about the structure of a bill Biden wants to get through Congress.

Greer noted that the bill could also allow the US to crack down on companies doing business on foreign soil.

“That could certainly give the president (and think future presidents) the power to ban TikTok, but potentially also bring in other companies like Apple that do significant business and develop technology in China,” they said.

David Greene, senior staff attorney and civil liberties director at the Electronic Frontier Foundation (EFF), said that if passed, the legislation would be subject to an initial review of amendments.

“To the extent that the law establishes a system for the government to determine whether a foreign-owned communications technology poses an unacceptable risk to U.S. citizens, it is generally permissible,” he said in a statement to the Daily Dot. “But if this law is enacted and its procedures are used to decree that a US person may not use a particular communications technology — messaging app, social media service — because of their foreign property, then this decree needs scrutiny.” of the First Amendment.”

Greene also said that part of the law that defines what will and will not be made available to the public from a review of a particular media outlet is far too vague.

“I would like this bill to include stricter transparency requirements,” he said. “The provision … for published statements leaves far too much leeway for the government to wriggle out of public reporting on the basis for punitive decisions it makes under this regime. Full public reporting should be the required default, [with] few, if any, statutory exceptions.”

Greer said that regardless of the legality of the legislation or whether it stands up to lawsuits, the bill misses the point.

“Nevertheless, we think it’s all a ridiculous and frivolous distraction,” they said. “If lawmakers want to protect Americans from surveillance and data breaches, they should pass a … privacy law, rather than creating moral panic and demanding authoritarian censorship of an app used by more than 100 million people in this country alone.”

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