As its vilification grows, TikTok’s future in the US remains in limbo
- Divisions among federal departments over the national security threat TikTok poses have left negotiations ‘stuck’, analysts say
- US lawmakers and states are pursuing their own measures to hobble the app, even as TikTok stars in America make contingency plans
Yoeslan Alfaro’s nine-to-five job in the insurance sector was paying his bills just fine. Then more than a million users of TikTok, the Chinese short-video sharing application, decided to follow him overnight.
“It blew up”, he said of the response to his first “monster video” on the platform. The clip shows a monster living under Alfaro’s bed and bringing over a monster friend to party as the human sleeps – unaware he’s sharing his room with the creature.
Alfaro, a 38-year-old Cuban-American from Florida, has since pursued the theme to produce monster stories for his 19 million followers. Today, he has a reported net worth of over US$1 million.
Still, the social media star grew anxious as he discussed renewed calls for a comprehensive ban on TikTok in the US. “I hope it does not come down to that”, he said softly, wringing his hands.
With more than 85 million monthly users – nearly 60 per cent of them 16 to 24 years old – TikTok, owned by the Chinese tech company ByteDance, is a raging success in the US.
Thousands of young Americans have found not just a community but also stardom on the platform, sometimes building careers worth millions of dollars by landing endorsement deals and qualifying for the app’s monetisation schemes like TikTok Creator Fund.
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But long after a US court quashed then-president Donald Trump’s executive order to ban TikTok in 2020 and US voters bounced him out of the White House, TikTok’s fears are far from over.
In a politically polarised US where China is one of the few bipartisan targets, TikTok has become a lightning rod, with politicians on both sides of the aisle more aligned than ever in efforts to kick TikTok out of the US.
Negotiations have dragged on for more than a year in Washington through TikTok’s efforts to address national security concerns with the Committee on Foreign Investment in the United States (Cfius), an inter-agency federal government body. Meanwhile, US lawmakers and individual states are pursuing their own measures to hobble the app.
Just last week, the Senate unanimously passed legislation to prohibit federal employees from using the app on devices issued by the United States government. To become law, the House of Representatives must also pass the bill and US President Joe Biden must sign it.
A day earlier Senator Marco Rubio, Republican of Florida, co-sponsored the “Anti-Social CCP Act”, which would ban all transactions with “any social media company in, or under the influence of, China, Russia and several other foreign countries of concern”. The only example cited: TikTok.
In recent weeks, several Republican-led states – Texas, South Carolina, Alabama, Utah, South Dakota, Maryland, and Oklahoma – have outlawed the installation and use of TikTok on government devices. Nebraska instituted a similar ban in 2020. Indiana has sued the platform for allegedly mishandling US users’ data and exposing children to harmful content.
Even New York, a state controlled by Democrats, may follow suit, with a new bill citing fears of “Chinese espionage” to ban the app on government-issued devices.
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Brooke Oberwetter, a TikTok spokeswoman, said via email that the company was “disappointed” that so many states were “jumping on the bandwagon to enact policies based on unfounded, politically charged falsehoods”.
She called it “troubling that rather than encouraging the administration to conclude its national security review of TikTok, some members of Congress had decided to push for a politically motivated ban that will do nothing to advance the national security of the United States”.
Concerning the Cfius review, Oberwetter said that TikTok believes “the solution the US government is considering will satisfy all reasonable concerns when fully implemented”.
Fear stems from how the Chinese government could utilise TikTok in the future, rather than evidence of wrongdoing in the past
“That solution addresses corporate governance, creates a protected enclave for our US users’ data, and puts additional safeguards on our content recommendation and moderation tools”, she added.
Efforts to enact large parts of the agreement were already under way, Oberwetter said, and TikTok was anticipating “being able to complete their work under the oversight of the US government to erase all doubts for our community, our business partners and our government stakeholders”.
The Treasury Department, which heads Cfius, did not respond to a request for comment.
A National Security Council spokesperson, while declining to discuss the review, said by email that “the Commerce Department, with inter-agency support, is working to implement” an executive order Biden signed in September to investigate foreign investments that involve personal data and advanced technologies.
The administration, the spokesperson said, was “focused on the challenge of certain countries, including China, seeking to leverage digital technologies and Americans’ data in ways that present unacceptable national security risks”.
In August 2020, Trump cited national security concerns to ban transactions between ByteDance and US citizens with an executive order. Within a week, he signed another order giving ByteDance 90 days to sell its US TikTok business to an American company.
Subsequently, Cfius also ordered ByteDance to divest from TikTok. Talks with Microsoft, Oracle and Walmart, though, failed to produce a takeover. And after numerous court defeats, Trump let the divestiture order wither away.
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US President Joe Biden drops Donald Trump orders seeking ban on China’s TikTok, WeChat
Lawsuits brought by ByteDance and TikTok influencers eventually averted a ban and when Biden came to power in January 2021, it was thought he would go easy on TikTok.
But that June, while he rescinded Trump’s orders, he initiated a probe into the platform’s potential security threats. Since then, the sides have wrangled over the terms of TikTok’s existence in the US.
A final agreement is “possible, but not easy”, according to Caitlin Chin, a fellow at the Centre for Strategic and International Studies (CSIS) in Washington.
Chin, who studies US technology regulation, noted that unlike Trump, Biden is open to letting the company operate, provided sufficient privacy measures are taken.
But, she said, negotiations “have reportedly run into internal disagreements on the nature of TikTok’s potential national security threat”.
“There is a general lack of trust in the US-China relationship that has overshadowed Congress and the Biden administration’s response to TikTok – but much of the fear stems from how the Chinese government could utilise TikTok in the future, rather than evidence of wrongdoing in the past”.
TikTok balks at making any changes to its ownership structure. But it has tried to allay fears over its data storage policies.
In June, TikTok moved its US users’ data to the cloud platform run by Oracle, the Silicon Valley giant. But reports emerged that its employees in China were gaining back-door access.
TikTok maintains that to do their jobs, its engineers all over the world may need some access – which it says is granted and monitored in accordance with strict protocols developed and overseen by a US-led security team.
A key objective of the negotiations is to ensure that sensitive US user data is available only to members of the security team, which will be made up of US citizens physically in the country.
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James Andrew Lewis, director of the strategic technologies programme at CSIS, noted one potential deal: “Oracle stores the data and it’s encrypted so the Chinese couldn’t look at it.”
Lewis added that the US must move toward better data security because “right now, the Chinese could look at the data whenever they want”.
He said that some departments in the Biden administration are “strongly opposed to any deal with TikTok, but right now they are in a limbo, they are stuck, they are not going anywhere”.
In fact, some federal officials have suggested it’s game over for TikTok. Last month, Brendan Carr, a member of the Federal Communications Commission, said he didn’t think there was a “path forward” for TikTok in the US “for anything other than a ban”.
Christopher Wray, director of the Federal Bureau of Investigation, said the agency was concerned about the app’s ability to control what users see on their timelines, “which allows them to manipulate content, and if they want to, to use it for influence operations”.
Yet the drive to ban TikTok has raised profound constitutional issues. Experts argue that banning the application would not only violate the free speech rights of millions of TikTok users but also fail to help fix America’s digital privacy problem.
Despite its national security concerns, the US government, Lewis said, “does not have the authority to ban speech” as “postings on TikTok are protected by the First Amendment since they are a form of speech”.
The government almost certainly cannot – consistent with the First Amendment – outright ban a forum for speech
Lewis contended that First Amendment rights are almost certain to prevail: “People can do things to make it difficult for TikTok, but they really can’t ban it.”
Ambika Kumar, the lawyer who won in court for TikTok content creators against Trump’s executive order in 2020, acknowledged that there was “no categorical rule that places First Amendment rights over national security nor vice versa”.
But she said that the government could not restrict speech based on its content unless the “restriction is narrowly tailored to serve a compelling government interest”.
“Under these standards, the government almost certainly cannot – consistent with the First Amendment – outright ban a forum for speech”.
Chin of CSIS said that while the US has a strong culture of free speech, the First Amendment is not absolute. And the US government has previously limited the ability of private corporations or individuals to disseminate speech – for example, to prevent physical harm, fraud, copyright infringement or child exploitation.
She said that there’s no consensus “on whether TikTok poses a clear national security threat or what the degree or nature of the potential risks may be”.
“Unless there is an actual, verified threat, it could lead to a slippery slope for the US government to target a single platform.”
Regarding digital privacy, Chin noted that TikTok “is far from the only mobile app to engage in extensive data collection, storage, and transfer”.
“Concerns over mass surveillance are not limited to foreign entities – it is important to acknowledge that US government agencies, too, have accessed Americans’ smartphone data without adequate privacy or civil liberties safeguards.”
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As the protracted back-and-forth over TikTok intensifies, internet celebrities have set up contingency plans.
Three years ago, Brooke Monk was a 16-year-old Coloradan who became a TikTok sensation for what she described as “relatable content”. Her videos range from make-up and hair styling to lip-synch, dance, self-worth and relationship advice.
Now 19, Monk moved to Los Angeles two years ago to pursue a career in content creation; today she has over 25 million followers on the app.
While saying she had “some degree” of an emotional link to TikTok, since that’s where she found “her community”, Monk said that if “something happens with TikTok, I will just try and support my audience wherever they go”.
“I already have YouTube content, Instagram content. So if that’s where they went, I’d go there.”
Could any other platform match TikTok’s fascination for youth? Monk reckoned that “every platform will try to emulate” the business model to “get the traffic and the people”.
“I definitely see something like that happening with an established app rather than a new app coming out of nowhere,” Monk said.
For his part, “monster video” Alfaro, who already has over 13 million followers on his YouTube channel, maintained that “I feel like if tomorrow sadly, TikTok goes away, it will impact me.
“But I’ll definitely be like, all right, let’s go.”
