A powerful House committee voted to advance legislation on Wednesday that would make it easier to ban TikTok from the United States and crack down on other China-related economic activity, amid vocal objections from some lawmakers and civil liberties advocates who argue the proposal is unconstitutionally broad and threatens a wide range of online speech.
The legislation – introduced Friday and fast-tracked by Foreign Affairs Committee Chairman Michael McCaul – would empower the Biden administration to impose a nationwide TikTok ban under the International Emergency Economic Powers Act (IEEPA).
The bill’s text specifically names TikTok and its parent, ByteDance, and requires President Joe Biden to impose penalties against the companies, up to and potentially including a ban, if the administration determines they may have knowingly transferred TikTok’s user data to “any foreign person” working for or under the influence of the Chinese government.
Sanctions would also be required if the Biden administration finds the companies helped the Chinese government engage in surveillance, hacking, censorship or intelligence-gathering; facilitated election meddling in the United States or in another democratic ally; or helped the Chinese government influence US policymaking, among other things.
The bill, known as H.R. 1153 or the Deterring America’s Technological Adversaries Act, also weakens a 35-year-old law, known as the Berman Amendment to IEEPA, that prohibited the US government from restricting the free flow of “informational materials” such as movies, photos, news and eventually electronic media to and from foreign countries, even those under US sanction. Legal experts and even some TikTok creators have cited the Berman Amendment as a potential barrier to a nationwide TikTok ban because it may violate the Berman Amendment’s protections for electronic information.
The legislation considered this week specifies that “sensitive personal data” does not qualify for the Berman Amendment’s protections, allowing the US government to impose restrictions on the international flow of data under IEEPA.
The legislation reflects US lawmakers’ urgency amid fears that TikTok or ByteDance could be pressured by the Chinese government to hand over the personal information of its US users. US officials have said that the data could benefit China by facilitating targeted misinformation campaigns or by providing it with intelligence targets.
In a statement, TikTok spokesperson Brooke Oberwetter called for the Biden administration to finalize a proposed national security deal that has been in the works for years and that is designed to address those concerns.
“A U.S. ban on TikTok is a ban on the export of American culture and values to the billion-plus people who use our service worldwide,” TikTok spokesperson Brooke Oberwetter said in a statement. “We’re disappointed to see this rushed piece of legislation move forward, despite its considerable negative impact on the free speech rights of millions of Americans who use and love TikTok.”
In an earlier statement, Oberwetter called for the Biden administration to finalize a proposed national security deal that has been in the works for years and that is designed to address concerns. “TikTok Inc. is a U.S. company bound by U.S. law,” Oberwetter said, “and we are two years and $1.5 billion dollars deep into a project to go above and beyond existing law to secure the U.S. version of the TikTok platform.”
A lengthy debate
The vote followed a lengthy debate Tuesday by panel members who were split along party lines on the proposal. McCaul and other Republicans argued that the risks of allowing TikTok to continue operating in the United States were too great and that Congress must act quickly, citing the federal government’s TikTok ban affecting official devices.
“How can we ban TikTok among ourselves and not ban it for our children? That is the moral question of today and of our time,” McCaul said Tuesday. “TikTok is a modern-day Trojan horse of the (Chinese Communist Party) used to surveil and exploit Americans’ personal information… in other words, it’s a spy balloon in your phone.”
Missouri Republican Rep. Ann Wagner called TikTok “an urgent, urgent issue of supreme national security risk,” adding: “There is clear and present danger; the timing and the urgency are necessary.”
But Democrats pushed back, saying the public had had just days to consider the bill before McCaul brought the legislation to a vote. The legislation’s breadth would unintentionally affect US and European businesses, they said. The panel’s top Democrat, New York Rep. Gregory Meeks, warned that Taiwanese and Korean chipmakers could all be harmed by the bill at a time when the US government is trying to entice those same companies to build chip manufacturing plants in the United States.
“This legislation would damage our allegiances across the globe, bring more countries into China’s sphere, destroy jobs here in the United States and undercut core American values of free speech and free enterprise,” Meeks said. “The legislation before us today is unvetted and dangerously overbroad.”
Rhode Island Democratic Rep. David Cicilline expressed confusion about how the bill tackles “recommendation algorithms,” saying the term is not defined in the legislation, suggesting that the bill could have extensive impacts on the artificial intelligence algorithms that have come to play a massive role in the digital economy.
Several critics of McCaul’s legislation proposed amendments to protect video game companies, including Riot Games and Epic Games, which are owned by the Chinese company Tencent or count it as a large stakeholder, from being unintentionally swept up by the bill.
California Democratic Rep. Sydney Kamlager-Dove, who proposed one of the amendments to create a carveout for Riot Games, called the bill “ill-conceived,” “hastily drafted,” and “precipitous.”
The amendments were defeated, and the underlying bill was approved 24-16 along party lines. The bill must still receive a vote on the House floor and in the Senate.
Fears for free expression
On Monday, the American Civil Liberties Union on blasted the legislation as “vague and overbroad,” and accused lawmakers of rushing the bill to a committee vote within days of its introduction without holding a hearing on the proposal.
In seeking to restrict access to a specific social media platform, the bill risks violating Americans’ First Amendment rights to free expression, the ACLU said.
Under the bill, the US government could seek to impose similar penalties and restrictions on any US citizen who “may transfer sensitive personal data” to “any foreign person” who is “subject to the jurisdiction” or “is otherwise subject to the influence of China.”
But terms such as “may be facilitating” or “subject to the influence of China” could be broadly interpreted to encompass a wide range of innocuous economic activity, and could expose Americans to enormous legal risk, the ACLU wrote in a letter to McCaul and the ranking Democrat on the committee, Rep. Gregory Meeks.
“It would be impossible for the average person to know what the term ‘subject to the influence of China’ means, and the term is not defined in the legislation,” the letter said. “Would an entity be under the influence of China if the CEO’s sister had moved there, or married a Chinese person? Would an entity be under the influence of China if the CEO regularly travels there for leisure?”
The ACLU also took aim at the bill’s proposed changes to the Berman Amendment, calling them a “slippery slope” that could lead to further efforts to chip away at the law that would “leave U.S. residents without some of their favorite international books, movies, and artwork.”
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