A bill that could enforce a U.S.-wide ban on TikTok, the short-form video app owned by Chinese-based company ByteDance, has been signed into law by President Biden. With Congress citing national security concerns, ByteDance now has approximately nine months to change ownership of the app, or have it banned outright in the U.S.
In addition to First Amendment concerns raised by lawyers and scholars, this new order presents an uncertain future for the approximately 150-170 million users and creators in the U.S. with accounts on TikTok.
With the bill now a reality, the Institute for Rebooting Social Media (RSM) reached out to legal scholars, industry experts, and representatives from TikTok to analyze the potential legal and creative impacts of the divest-or-ban order.
Respondents:
Anupam Chander, RSM Visiting Scholar; Scott K. Ginsburg Professor of Law and Technology at Georgetown University
David Craig, RSM Visiting Scholar; Associate Professor of Communication at the University of Southern California
Jabari Evans, Assistant Professor of Race and Media at the University of South Carolina
Jennifer Huddleston, Senior Fellow in Technology Policy at the Cato Institute
Jessica Maddox, Assistant Professor of Journalism and Creative Media at the University of Alabama
Alan Rozenshtein, Associate Professor or Law at the University of Minnesota
Jodi Seth, Global Head of Corporate & Policy Communications at TikTok
Amanda Yarnell, Director of the Center for Health Communication at the Harvard T.H. Chan School of Public Health
The responses below have been edited for clarity.
What happens next? Walk us step-by-step through the potential legal challenges we might see from TikTok/ByteDance or the platform’s users.
Jennifer Huddleston (Cato Institute): In the immediate aftermath, most users won’t experience any change. The exact timeline of what happens next is unclear and may depend on what happens with any legal challenges. Theoretically, the timeline to require a divestment or otherwise face a ban would start immediately. However, if legal challenges are filed, they may request a preliminary injunction. If the preliminary injunction is granted, then the time would be paused at least while litigation is ongoing.
Alan Rozenshtein (University of Minnesota): The law provides that any challenges to the law must be brought in the DC Circuit. That’s where I would expect TikTok or TikTok’s users to challenge the law, and I expect that will happen very quickly. Once the DC Circuit rules, then the Supreme Court will have an opportunity to review—assuming that the losing side appeals, which I assume they will. Given the importance of this issue, both in terms of the First Amendment and just TikTok’s importance in American society, I would expect the Supreme Court to take this issue up.
Now, if ByteDance decides to divest, then this case goes away because there’s nothing more to litigate. But early indications suggest that ByteDance and/or the Chinese government don’t want to divest TikTok, in which case there’s obviously something to litigate.
How does TikTok plan to respond to the newly signed divest-or-ban order
Jodi Seth (TikTok): This is an unconstitutional ban that would devastate 7 million businesses and silence 170 million Americans. We plan to challenge it in court. We believe the facts and the law are clearly on our side, and we will ultimately prevail. We have invested billions of dollars to keep U.S. data safe and our platform free from outside influence and manipulation. As we fight in court, we will continue investing and innovating to ensure TikTok remains a space where Americans of all walks of life can safely come to share their experiences.
What are some specific concerns you’re hearing from creators now that the bill is underway? What are some of your own concerns from your research and/or experience?
Jessica Maddox (University of Alabama): The biggest concern I’ve been hearing from creators relates to their financial livelihoods. I’ve interviewed over 150 content creators and influencers in my career, and all of them have always been keenly aware of the fact that social media work is very precarious and dependent on so many factors they cannot control, like algorithms. This new legislation enhances this precarity even more, and shows creators that their work is not as important as politicians trying to score easy points. The social media content creation market cap in the United States was $27.1 billion last year, and a TikTok ban will lower this tremendously. So many creators have worked to have wonderful followings and communities on TikTok, and they’ll lose these relationships should the app ban go through. Social media content creation is not as simple as just uploading a video to multiple platforms—it requires care, thought, and understanding of unique digital spaces.
David Craig (USC Annenberg): There’s little doubt that the creators who rely solely on TikTok for generating revenue are incredibly concerned and are already witnessing the impact of these political machinations because advertisers are already jumping ship. They can’t afford to put all their money into TikTok when they could see the platform disappear in nine months. So they’re having to pivot or lean into a more multi-platform strategy, which all advertisers and creators know to do anyway.
My bigger concern is that there are 170 million people who have harnessed this platform to express their identities and values, to forge community, and to communicate, and they’re now threatened with complete disenfranchisement by the state. I find that particularly concerning when we risk losing an entire platform generation, as I call them, from believing or placing faith in democratic or civic participation. There couldn’t be a worse time in light of all the other things going on in the world for a whole swath of American society to be told that their primary means of engaging with others has been stripped away because of some unacknowledged fears and imagined threats of cyber sovereignty and propaganda.
Jabari Evans (University of South Carolina): The issue that creators of color, specifically the Black youth that I tend to study, are having is that they feel like they’re being pushed further from understanding the black-box that controls their livelihood. There’s always been a lack of understanding between technologists and the young Black people from underserved communities that often drive trends on their platforms. Creators I work with are scared, anxious and ambivalent as to what and how a divestment or ban of a platform that they rely upon to make a living might mean.
Amanda Yarnell (Harvard University): Creators are going to create, no matter what happens to TikTok. But there is something special about TikTok that has allowed important conversations and communities to flourish around topics like serious mental illness or LGBTQ health. What would happen to such conversations if TikTok were to go away, especially since many of them have been politicized and platforms like Instagram have looked to curb topics deemed political?
How is the existence of the bill—whether it eventually results in a divestiture or a ban—impacting content creators on the app currently? How are people preparing for what comes next?
Jessica Maddox (University of Alabama): The very existence of the bill is an immense stressor. Creators have no idea what their jobs will look like a few months from now. Even as a researcher, I am feeling this. While I don’t tie my research agenda to specific platforms for this very reason, TikTok is still a huge aspect of my work, and I question what will happen if it goes away. I think creators specifically are preparing by starting to think through shifting their work to another platform, but that could be a lot of time and effort if the divest-or-ban doesn’t happen.
Amanda Yarnell (Harvard University): Creators we work with are concerned about downloading and saving their TikTok content so they don’t lose access to it. They are increasing their investments in other social platforms, particularly those that offer similar short-form video formats. And, most of all, they are doubling down on efforts to push their social media followers to connect directly with them via newsletter or text. I hope that the divest-or-ban order will encourage more creators to prioritize building direct subscription models. Having a durable, direct connection to your community is critical to building any sort of sustainable media business.
David Craig (USC Annenberg): TikTok is not necessarily known for supporting creators as much as you might think. TikTok has afforded them other ways to generate revenue, but not necessarily paid them for it; they took away their creator funds and ad sales opportunities. So TikTok has a bit of a hypocritical, ambivalent relationship to creators. They need them and they clearly put them front and center in these political debates and run them centrally in all their ads. But at the end of the day, TikTok creators have learned to be multi-platform. I think the maxim is, “you don’t build your house in someone else’s backyard.”
Jabari Evans (University of South Carolina): Many Black creators have publicly criticized TikTok for potentially having anti-Black ideologies embedded within its algorithm and recommender systems well before now. In order to safeguard themselves, that means that they have had to populate multiple platforms and operate like a resident in a neighborhood perpetually threatening to gentrify them out of the spaces they occupy. As with most situations, those most vulnerable and typically exploited stand to lose the most.
Members of Congress championing this legislation claim that TikTok poses a national security threat to the U.S. and American users. Has Congress revealed any details on national security threats?
Anupam Chander (Georgetown Law School): Congress did not make any factual findings to support the law—even though they clearly determined that TikTok and ByteDance could not be allowed to operate in this country with its current ownership structure. This is especially disconcerting given the unusual nature of this law, which targets a specific company, rather than setting out a set of procedures for executive department investigation and enforcement.
Alan Rozenshtein (University of Minnesota): I think Congress has articulated pretty clearly what they consider to be the threats: one being data privacy and the Chinese government’s ability to surveil and get a lot of data on U.S. users of TikTok; and the other being the Chinese government’s ability—by putting pressure on ByteDance, which would put pressure on TikTok—to potentially alter TikTok’s content moderation and recommendation algorithm so as to favor whatever message the Chinese government wants to get out. Now, what’s true is that Congress has not disclosed specific evidence of the Chinese government doing those two things through TikTok. So the question is: is what we know about the Chinese government’s activities generally enough to justify—in the absence of smoking gun evidence with respect to TikTok itself—this law?
Jennifer Huddleston (Cato Institute): No new details have been revealed. There continues to be debate about the specifics of the national security concerns expressed, ranging from data collection to concerns about potential manipulation of the algorithm or the prevalence or absence of certain types of content. Senate Intelligence Committee Chair Mark Warner (D-VA) and Ranking Member Marco Rubio (R-FL) called to declassify certain intelligence regarding TikTok, but this has not occurred.
A divestiture to a new, U.S.-approved owner will undoubtedly be a complex business transaction that raises questions on how exactly the U.S. government is evaluating an “appropriate” owner of TikTok. How might the government ensure that the new owner(s) are immune to the type of foreign influence the order intends to combat?
Alan Rozenshtein (University of Minnesota): My understanding of the law is that it does not permit the U.S. government to approve or disapprove of TikTok’s new owner, if TikTok’s new owner is not a foreign entity of concern. So if a U.S. company wants to buy TikTok, there’s no approval that the U.S. government needs to give it for TikTok to no longer be subject to a ban.
As to the question of how the U.S. government can make sure that a U.S. owner of TikTok doesn’t present the same danger, they can’t. That’s not what the law provides. I think that’s because the assumption here is that a U.S. owner simply wouldn’t present the same national security risks as a Chinese owner would because it’s not a Chinese owner. Now again, there’s no way to immunize even a wholly U.S. platform from foreign influence; we’ve seen China, Russia and other countries wage influence campaigns on Facebook, Twitter, what have you. But there’s a big difference between a foreign government trying to spread misinformation or do surveillance through a platform that they can’t control versus one that they can control. The magnitude of the danger is just very different in those two cases.
Anupam Chander (Georgetown Law School): The law identifies four countries as adversaries—China, Russia, Iran, and North Korea. There would be no rules preventing foreign influence from other countries in a TikTok under new ownership. And the protections of Project Texas would no longer be available either.
How might this bill impact ongoing conversations around workers’ rights for content creators?
David Craig (USC Annenberg): This speaks to a much larger array of issues. Here in the U.S., the rights of creators and digital gig laborers continue to be secondary. I think we are seeing a rise of a labor rights movement across many different categories. Hollywood producers who have never had rights before are just now talking about finally unionizing and organizing around producer rights. Creatives across every industry are all starting to demand a bigger seat at the table. But they have a long, long way to go because neither branch of our democracy has done more than provide lip service to labor rights in this country. They seem to only care and stand up for labor rights when it’s election year. But creators are their own class of labor that have, up until this moment, always been relegated over to contract employees who, therefore, aren’t protected by any set of labor rights. [They’re] not even recognized or understood by the National Labor Board as a unique set of a segment of labor, despite the fact that we have evidence to suggest that upwards of 10 to 15 percent of the U.S. labor market is creators who are making at least some forms of revenue by building communities and monetizing them online.
Legally, has there ever been an action like this taken before by the U.S. government regarding media and information?
Jennifer Huddleston (Cato Institute): Many proponents will point to the previous requirement to rip and replace Chinese telecommunications provider Huawei from the U.S., or restrictions on ownership of broadcast media. However, this action is significantly different due to its impact on the speech of millions of Americans and the ways it expands potential executive authority into the app market and online platforms more generally. While much of the conversation focuses on TikTok, the divest-or-ban proposal in the foreign aid package could be even farther reaching and apply to other popular apps with ties to China, such as online marketplace Temu. It also raises questions of how broad the authority given to an executive to declare apps under the influence of foreign adversaries could be interpreted. The result will impact the speech rights of millions of Americans, as well as the decisions of U.S. companies about the apps they allow in their marketplace or on their internet services.
Alan Rozenshtein (University of Minnesota): The United States government has required Chinese-owned companies to divest of U.S. social media companies before. Most recently, the Committee on Foreign Investment in the United States (CFIUS) required Grindr, the dating app that’s very popular with the LGBT community, to divest itself of its Chinese ownership because of concerns that Grindr collected a lot of information about users’ HIV status, and that could be a problem if the Chinese government has access to that. And historically, there’s a long tradition, actually, of the United States imposing restrictions on foreign ownership within the communication sector. So in that sense, I do think there are analogs.
Anupam Chander (Georgetown Law School): The limits on foreign ownership of radio and TV stations of the last century have largely been relaxed. In any case, the Internet is a very different medium—do we want to limit access to foreign sources online? We shouldn’t borrow the tactics of authoritarian states.
Why is this bill and its potential consequences important for everyone to pay attention to? How might it impact the work and regulation of other social media companies?
Jennifer Huddleston (Cato Institute): The proposal will affect the speech rights of millions of Americans and could extend beyond TikTok to other apps with little due process for entities identified by the executive.
Anupam Chander (Georgetown Law School): The TikTok Law repudiates the long-standing U.S. embrace of an open and free internet. The U.S. has argued that China should welcome Facebook, the New York Times, and Wikipedia, rather than censor media from abroad. The Law undermines that argument, resting on the premise that foreign-owned media is a malign influence, and can thus properly be blocked—ironically confirming China’s approach at the dawn of the Internet age.
David Craig (USC Annenberg): The first consequence is the firewall that the U.S. is building around their platforms, walling off social media users—not just on TikTok, but on many platforms—from being able to interact, communicate, and build around transnational, global interest communities that can also be monetized. A larger impact is that we’re witnessing the collapse of a global communication system that was deeply flawed and had a number of technological, economic and political infrastructural problems and was certainly hardly perfect, but far superior to anything we’ve ever witnessed in the span of human history.
Alan Rozenshtein (University of Minnesota): I’m not sure it does, in fact, impact the regulation of other social media companies. It’s about social media companies that are owned by foreign entities, and in particular, that are owned by foreign entities of specific countries of concern. Nothing in this law says anything about U.S., European, or Japanese social media companies that operate in the United States. At the same time, this is an important issue to keep track of if only because TikTok is extremely popular in the United States. If TikTok is banned, those users will suffer—at least in the short term—and that’s an important issue. In addition, if this goes to the Supreme Court, whatever the Supreme Court says will be a major statement about the First Amendment, social media and the Internet, and that might have ramifications beyond just this specific case.
Jabari Evans (University of South Carolina): I think this case is very important because there’s been an ongoing debate over platform regulation and content moderation, and the fate of TikTok may be the first of many dominos to drop, so to speak. We will finally have a precedent on how global platforms must evolve to contend with national standards and business practices.
Amanda Yarnell (Harvard University): The bill and its potential consequences for the world’s most viral platform should encourage all social media companies to be more transparent. It ought to convince other social media companies to proactively allow independent academic teams like ours to study how social media content, algorithms, and product features affect public health.
Jessica Maddox (University of Alabama): Regardless of one’s personal feelings about TikTok, it should give everyone pause that the United States is banning a major media, entertainment, and information company from operating on its soil. While the U.S. has always had laws limiting foreign media ownership, it has always been just that—limitations, not full divestitures. Furthermore, those laws have not taken into account the completely globalized media ecosystem, and how it is difficult to untangle all of our social media platforms from this web we’ve created. The fact of the matter is, if the United States really cared about data security, politicians would have passed meaningful data security laws and regulations years ago. To date, we lag behind most developed countries in the world in this regard. This is why I don’t believe we’ll see more social media regulation following this TikTok legislation. It’s not really about data security, but tense U.S. relationships with China. I say this because at the end of the day, everything U.S. politicians claim they are afraid of TikTok doing, Facebook actually did with its 2016 Cambridge Analytica Data Scandal.