They’re quickly crashing into the hard limits of Washington’s power.
By BRENDAN BORDELON
April 16, 2023
As the federal government escalates its efforts against TikTok, it’s coming up against a stark reality: Even a politically united Washington may not have the regulatory and legal powers to wipe TikTok off American phones.
A few weeks ago it looked like the company’s days in America were numbered. President Joe Biden’s administration had just demanded that the Chinese-owned video app be sold or face an outright ban in the United States. That effort quickly drew support from Capitol Hill, and gained momentum after the remarkably bipartisan grilling of the company’s CEO last month — with lawmakers accusing TikTok of serving as a Trojan horse for Beijing to “manipulate America” and suck up reams of sensitive data on U.S. citizens.
But now, interviews with lawmakers, legal and national security experts and former officials in two administrations — including some directly involved in the TikTok effort — suggest that a ban may simply face too many hurdles to ever work. Some insiders are even starting to worry that the government may never be able to meaningfully restrict TikTok’s use — and are considering alternative approaches to mitigate any threat it poses.
“I don’t really care what Congress writes, or what the administration writes. They’re not going to ban TikTok,” said James Lewis, director of the Strategic Technologies Program at the Center for Strategic and International Studies think tank. “They can ban financial transactions, or they can try to force divestiture. But they don’t have the ability to ban TikTok itself.”
The challenges that confront Washington as it works to rein in TikTok compound on each other. Between the company’s steep price tag, antitrust concerns and expected resistance from Beijing, almost no experts believe Washington will be able to force ByteDance, TikTok’s Chinese owner, to sell the app. If divestiture fails, the government will need new authorities from Congress to prevent getting laughed out of court when it attempts a direct ban — and there’s no guarantee lawmakers can get on the same page to grant those powers in time for Biden to use them.
Even if Capitol Hill can deliver on a new law, a legal battle over the impact of a TikTok ban on the First Amendment is almost inevitable. “All roads lead to court,” said Lewis. “ByteDance has tons of money, they’ll hire an army of lawyers. And this will be fought out.” He and others expect the government would likely lose any First Amendment case.
Optimistic TikTok hawks compare their efforts with Washington’s successful ban on networking equipment made by Huawei, the Chinese telecommunications giant suspected of serving as Beijing’s sock puppet. But there are meaningful differences: While the ban on Huawei hardware impacted the bottom line of a few U.S. telecom firms, it had virtually no bearing on the free speech rights of millions of Americans. And Washington seemed to have more evidence that Huawei posed a security threat, including the discovery of major security flaws in its systems. A similar smoking gun does not appear to exist for TikTok.
As Washington stares down the dizzying obstacle course, there’s an increasing sense that it’s already missed its best chance to ban TikTok. “Time is not on our side,” said Rep. Mike Gallagher (R-Wis.), chair of the new House Select Committee on China. “Every day that passes is a day that we have not taken action on this critical issue. And I think TikTok is trying to wait out the clock.”
TikTok spokespeople declined requests to comment on the social media giant’s predicament, discuss its strategy or handicap its chances in a court battle with Washington.
But banning a popular communications tool, foreign or otherwise, is virtually without precedent in the United States. Washington has tried this once before and failed: In August 2020, former President Donald Trump attempted to ban TikTok and several other Chinese-owned apps by executive order. A federal court threw out that effort within months.
Though Biden’s attempt is more deliberate, starting with his support for a bill in Congress that would give him new authority to restrict foreign apps, any fresh effort to ban TikTok is likely to hit a similarly daunting set of hurdles.
With an estimated 150 million monthly American users, talk of a TikTok ban has prompted fear of a political backlash. The social media giant has also hired plenty of lobbyists since its tussle with the Trump administration, making it an even tougher nut for Washington to crack.
But in this case, the politics may almost be a sideshow. The real story, say those who have looked ahead to the practical steps of a ban, is the U.S. government’s constitutional inability to shut out any digital platform that hasn’t already proven a clear threat.
A repeat of Trump’s mistakes
Years after Trump’s failure, the Biden administration is attempting a more methodical approach to a TikTok ban. But it may already be steering into one of the former administration’s errors.
Trump’s first mistake, according to former administration official Keith Krach, was his attempt to force the sale of TikTok to Microsoft, Oracle or another U.S. tech company. Krach called the effort a “major distraction” that gave ByteDance the breathing space needed to challenge Trump’s executive order.
Trump’s first mistake, according to former administration official Keith Krach, was his attempt to force the sale of TikTok to Microsoft, Oracle or another U.S. tech company. | Riccardo Savi/Getty Images for Concordia Summit
“It was a strategy that wasn’t going to work. And yeah, that took up quite a bit of time,” said Krach, who served as Trump’s undersecretary of the State Department in charge of economic growth, energy and the environment.
Now Washington is now back to where it was in 2020. In March, reports emerged that the White House — acting through the interagency Committee on Foreign Investment in the U.S. — is now demanding that ByteDance sell TikTok to a company it can trust, or face a full-scale ban.
But three years after Trump tried to force a sale, the environment for such a deal is even worse. TikTok is bigger, more popular and more valuable — and Washington is far more aggressive about blocking big mergers. Virtually no one expects a buyer to materialize.
While ByteDance keeps TikTok’s valuation private, most observers believe the app is worth well over $40 billion. That likely puts it out of reach for all but the richest companies or investors. And at least one possible buyer has already spent that amount on a separate social media platform. (“Where’s Elon Musk when you need him?” asked Lewis.)
Tech giants like Meta or Google have seen their own valuations fall from their 2021 peaks, making it tougher for those companies to scrape together the cash to buy TikTok. And even if they could find the money, antitrust concerns would likely cause them to steer clear of the Chinese-owned app.
Antitrust concerns likely take both Meta and Google (which owns YouTube) out of the running as potential TikTok buyers, said Daniel Francis, a former deputy director of the FTC’s Bureau of Competition who’s now a law professor at NYU. “Any large tech deal will get close antitrust scrutiny in the present climate,” he said.
Companies like Amazon or Microsoft, which control smaller shares of the social media market, may be better positioned to buy TikTok without triggering a competition complaint. But they’re just as unlikely to pick up a property laden with so much baggage.
“All of these companies are skittish,” said Florian Ederer, an economics professor at Yale University who specializes in antitrust policy. “They already have plenty of antitrust problems. They don’t want any additional ones.”
Given a lack of obvious buyers, Ederer said the most realistic scenario could be an initial public offering, which would spin off TikTok into an independent (and presumably U.S.-based) entity. But IPOs are notoriously complicated, and also tightly regulated — and Ederer said there’s still no guarantee that a domestic spin-off would satisfy Washington’s security concerns.
“You’re essentially just making [TikTok] separate,” Ederer said. “What prevents them from sharing information or sharing data with their previous Chinese parent?”
The looming China veto
Even if those hurdles are cleared, the Chinese government is expected to sabotage any attempt to change TikTok’s ownership.
ByteDance is one of China’s most globally successful tech companies, and TikTok runs on powerful and closely guarded software systems. In response to the Trump administration’s abortive ban, in 2020 Beijing updated its export control rules so that Chinese-owned algorithms — including those that power TikTok’s personalized recommendation engine — could be blocked from leaving the country.
Lindsay Gorman, a former technology and national security adviser in the Biden administration who studies emerging tech at the German Marshall Fund’s Alliance for Securing Democracy, said Beijing is likely still mulling whether it should block Washington’s effort to force a TikTok sale. But she said some pushback is a virtual certainty.
“China’s definitely unlikely to let the U.S. policy process play out how it’s going to play out, and sit on the sidelines,” Gorman said.
The Biden administration knows how badly the odds are stacked against a TikTok divestiture. “I don’t see how they can make the sale work,” said one person familiar with the national security discussion inside the administration, who requested anonymity in order to address sensitive talks.
From the price tag to antitrust concerns and the expectation that Beijing will withhold TikTok’s algorithm, the person claimed the prospect of a TikTok sale is “almost a false premise.”
“I think Treasury was optimistic that Meta or Amazon would just show up and save the day,” the person said. “We started to go down this path, and it became clear to them that this was much more complicated.”
Can Congress pick up the ball?
If divestiture fails, the Biden administration has indicated it will seek to impose a direct ban on TikTok. But it would first need a big assist from Capitol Hill.
When federal judges blocked the Trump administration’s TikTok ban in 2020, they did so in part based on violations of the Berman amendments — obscure but important 30-year-old provisions in the International Emergency Economic Powers Act that allow for the free flow of “informational material” from adversarial nations.
The White House has suggested it needs Congress to blow a hole in the Berman amendments before it can target TikTok on firm legal footing. And last month it backed the RESTRICT Act, a bipartisan bill from Senate Intelligence Chair Mark Warner (D-Va.) and Senate Minority Leader John Thune that would short-circuit the Berman amendments and formally allow the administration to ban technologies from China and five other countries.
But the RESTRICT Act is just one of several TikTok bills now percolating on Capitol Hill. That includes legislation from House Foreign Affairs Chair Michael McCaul (R-Texas), which advanced out of that committee last month on a party-line vote, as well as a bill backed by Sen. Marco Rubio (R-Fla.) and former Rep. Gallagher and Rep. Raja Krishnamoorthi (D-Ill). More bills may be coming — late last month, House Energy and Commerce Chair Cathy McMorris Rodgers (R-Wash.) said she’s working on her own TikTok bill.
All of these lawmakers back a federal ban on TikTok, and most of their bills aim to undercut the Berman amendments to achieve that goal. But their supporters are already sniping at one another over the details. While key House Republicans argue that the RESTRICT Act gives too much leeway to TikTok, some GOP senators claim the bill goes too far and could restrict civil liberties. Meanwhile, House Democrats — wary of angering young voters and stoking anti-Chinese sentiment — are distancing themselves from Warner and other Senate Democrats pushing a hard line on TikTok.
The mishmash of bills and splintering of viewpoints suggests a long and testy process will need to play out in Congress before the administration can move on a TikTok ban. And given the alleged national security concerns raised by the app, Washington doesn’t have time to spare.
“We should all act with a greater sense of urgency,” said Gallagher. The representative said he plans to sit down soon with McCaul, McMorris Rodgers and House leadership to “figure out what’s the most sensible path forward.”
Warner said the RESTRICT Act is still moving forward, and that he and Thune are now engaged in “sausage-making” with their House counterparts. But even legislative pushes with broad bipartisan support regularly get bogged down on Capitol Hill. Krach compared the congressional TikTok debate to early talks around last cycle’s sprawling CHIPS and Science Act, which went through well over a year of discussion (and more than one near-death experience) before finally being signed into law last summer. “That went through a lot of maturation, [and] I think you’re gonna see the same thing,” he said.
The Biden administration will be stuck spinning its wheels on a TikTok ban until Congress passes a fix to the Berman amendments. But even if lawmakers decide to beef up the president’s authorities, a more fundamental challenge awaits.
The First Amendment wall
A ban on TikTok from a newly-empowered White House would almost certainly trigger a legal challenge on free speech grounds. And while judges never seriously grappled with the First Amendment implications of a TikTok ban in 2020, even some China hawks believe the Constitution would block Washington if it tried again.
“The ban stuff — that’s just politics,” said Lewis. “You cannot ban the First Amendment.”
Proponents of a TikTok ban claim the national security risks posed by the app are self-evident. ByteDance is headquartered in China, and Chinese law requires companies to cooperate with any and all requests from Beijing’s security and intelligence services. Even if there’s no evidence of nefarious activity, they claim it’s only a matter of time before the Chinese government flips a switch and weaponizes TikTok.
But that line of reasoning is unlikely to sit well with federal judges, who will be weighing the potential security risks with the imposition of real-world restrictions on the rights of 150 million Americans to post and exercise free speech on an extremely popular platform.
(TikTok also has its own First Amendment rights, though it’s less clear how judges would rule if the company sought to assert them in court in response to a ban.)
Caitlin Vogus, deputy director of the Free Expression Project at the Center for Democracy and Technology think tank, said it’s “theoretically possible” that the government could convince a judge that the risk posed by TikTok is so high that a ban is the only option. But Washington would need to come armed with concrete evidence that the app represents a threat — and so far, there’s little to indicate such evidence exists.
Warner, when asked if he’s seen classified material that indicates the TikTok threat is worse than the public record suggests, did not offer specifics: “Some of this is still potential,” he said.
Vogus said “potential” threats likely won’t cut it in a courtroom. “The government would be facing an extraordinarily high burden that it would have to meet before it could justify an outright ban,” she said.
The First Amendment has trumped external threats before: Vogus and others pointed to the Supreme Court’s 1965 ruling in Lamont v. Postmaster General, which dealt with the legality of restrictions on the mailing of foreign communist propaganda. Even at the height of the Cold War, the Court unanimously ruled that those restrictions violated the First Amendment and allowed the propaganda to continue.
Vogus laid out a few ways that courts could approach the First Amendment concerns raised by a TikTok ban. If judges decide that a TikTok ban represents a prior restraint on the speech of its users, she said Washington would have to prove an “exceptional government interest” in order to justify a ban. If they determine that a ban is based on viewpoints espoused by TikTok — a real possibility, given the government’s fears that Beijing will use the app to conduct covert influence campaigns — the administration would need to prove a “compelling government interest.” Even if judges rule that a TikTok ban is neutral when it comes to content and viewpoint, the government would still have to prove that the remedy is narrowly tailored to serve a “significant government interest.”
Proponents of a TikTok ban, so far, have avoided discussing the free speech implications of the policy. When asked directly if he believed a ban could survive a First Amendment challenge, Warner would not comment on the record. A subsequent email with follow-up questions for the senator’s legal team on whether a ban would pass constitutional muster went unanswered by a Warner spokesperson.
After some prodding, Thune admitted there are “First Amendment issues” with a TikTok ban. And while the senator remains hopeful that his bill would allow an outright ban to withstand legal scrutiny, he said it’s possible that Washington will instead be stuck “mitigating [TikTok] in some fashion.”
Back at square one?
The array of obstacles now confronting the government on TikTok has led to the sense that Washington has already botched its best chances to rein in the Chinese-owned app.
“The missed opportunity was last December,” said Lewis. That was when CFIUS and ByteDance reached a tentative deal, known as “Project Texas,” which would theoretically have siloed off U.S. user data from Beijing’s surveillance. It was ultimately derailed by objections from the FBI and Department of Justice.
TikTok CEO Shou Zi Chew testifies during a hearing of the House Energy and Commerce Committee, on the platform's consumer privacy and data security practices and impact on children, Thursday, March 23, 2023. | Jose Luis Magana/AP Photo
“We might find ourselves going down the path of going to court, losing and then thinking about what a Project Texas would look like,” said Lewis.
If TikTok is still alive and well and on people’s phones in two years, Washington may be looking for other ways to hit TikTok where it hurts. While the First Amendment likely limits the government’s ability to ban the app outright, it could still target TikTok’s ability to conduct U.S.-based financial transactions. That includes potential restrictions on its relationship with Apple and Google’s mobile app stores, which would severely hamper TikTok’s growth.
“If your goal is to keep Chinese content from reaching American citizens, there’s no way to do that,” said Lewis. “But if your goal is to keep Chinese companies from profiting from that content, we can do that.”
With no end in sight to the escalating confrontation between the U.S. and China, it increasingly feels like TikTok is just a proxy in the larger fight between the world’s superpower and its near-peer challenger. And with no easy fix for the TikTok problem, the issue is likely to languish until the two nations reach a broader understanding.
“The real problem is Chinese espionage,” said Lewis. “If we can find a way to mitigate that risk, you can move forward with TikTok. Otherwise, it’s just going to be messy.”
Gavin Bade contributed to this report.