TikTok is one of the most powerful tools that young people have to engage each other

Shou Zi Chew, the CEO of the video-sharing app TikTok, will appear before the House Energy and Commerce Committee to respond to concerns about the app's links to the Chinese government and its data-handling practices, as talk of a forced sale or outright ban gathers (even more) steam in Washington. Based on a prepared version of his remarks that was released by the committee late Tuesday, Chew plans to focus on the fact that millions of small businesses in the US use TikTok, and also on freedom of expression. "We do not believe that a ban that hurts American small businesses, damages the country's economy, silences the voices of over 150 million Americans, and reduces competition in an increasingly concentrated market is the solution to a solvable problem," Chew will say. He also plans to say that ByteDance, the app's Chinese owner, "is not an agent of China or any other country."

In advance of Chew's hearing, those for and against a TikTok ban have been drawing the battle lines. As part of what Politico described as an "11th hour lobbying blitz," TikTok invited some of its power-users to Washington this week. About twenty influencers made the trip at the company's expense, including Aidan Kohn-Murphy, a college freshman who has close to three hundred thousand TikTok followers and who also founded Gen-Z for Change, an advocacy group. "TikTok is one of the most powerful tools that young people have to engage each other and to get civically involved," Kohn-Murphy told the Wall Street Journal. The Journal also reported that a group of Silicon Valley executives opposed to Chinese involvement in the US tech sector, including the investor and Trump confidant Peter Thiel, planned to meet for a private dinner yesterday, to talk about China. Leading the effort is Jacob Helberg, a former Google policy adviser and member of the US-China Economic and Security Review Commission, a congressional advisory panel.

Chew himself, meanwhile, has been laying the groundwork for his testimony. In an interview with the Journal last week, he argued that banning TikTok or forcing its owners to sell won't accomplish anything that the company's own proposed solution to US lawmakers' concerns-an initiative known as Project Texas-doesn't already achieve. As I wrote last month, TikTok has spent more than a year developing Project Texas, which involves storing data related to US users on US servers belonging to Oracle, a cloud-computing service, and appointing a board of US advisors to oversee its recommendation algorithms, another focus of the US government's concern. According to recent reports, however, the Committee on Foreign Investment in the US, an agency with the authority to review deals that might affect national security, has rejected this proposed solution, maintaining that it wants to see either a sale or a ban.

A spokesperson for China's Ministry of Foreign Affairs said in a recent briefing that the US has "so far failed to produce evidence that Tik Tok threatens US national security." That may be so, but the FBI and the Department of Justice are now looking into reports that ByteDance staffers used the app to surveil several US journalists, including Emily Baker-White, who currently works at Forbes and who was first to report on the investigations last week. In a prior role at BuzzFeed, Baker-White reported on TikTok's handling of data, including the fact that multiple ByteDance officials had accessed data on US users from inside China. TikTok officials reportedly tried to use the app to track Baker-White's movements, and those of a Financial Times journalist, in an attempt to determine how they got access to the documents that they used in their reporting. According to Baker-White, a source close to the investigation said that the Justice Department's Criminal Division is working on a probe with the Office of the US Attorney for the Eastern District of Virginia, and has already subpoenaed information from ByteDance.

According to Bloomberg, TikTok's senior management has talked about the possibility of separating the company from its Chinese parent in a bid to assuage the US government's concerns about national security, but see such a move as "a last resort," not least because it would be very complicated. Analysts reckon that TikTok's US business could be worth as much as fifty-billion dollars, but the Chinese government would have to agree to any sale, and that doesn't seem likely. China changed its laws in 2020 to prevent the sale of artificial-intelligence software-which theoretically would include the recommendation algorithms that power TikTok-to foreign interests. In his recent interview with the Journal, Chew declined to say whether ByteDance's founders were open to selling. The founders own twenty percent of the company, but hold a special type of share that gives them enhanced voting rights. An additional sixty percent of ByteDance shares are owned by global investors, Chew said, with the remaining twenty per cent owned by employees.

In a column for the New York Times this week, Julia Angwin, the co-founder of The Markup, a tech-focused investigative newsroom, argued that banning TikTok would be a fool's errand. Doing so "won't keep us safe," Angwin wrote, adding that she wished "all the tech giants that prey on Americans' data" were getting the same level of "scrutiny and enforced accountability." The proposal to ban TikTok, Angwin suggested, is part of a new "red scare" involving China. Where critics might counter that the company spied on journalists, Angwin noted that US companies have committed similar sins: "Google has fired dozens of employees for data misuse, including obtaining user data," Angwin notes, while Microsoft admitted to snooping on a blogger's Hotmail account to see who was leaking internal documents. At Twitter, an ex-employee was convicted of using his access to spy on Saudi dissidents. A staffer in India used his access to internal data to spy on Indian dissidents.

The Washington Post noted that the plan to force ByteDance to sell TikTok recalls an earlier move by CFIUS, which in 2019 forced a Chinese company called Beijing Kunlun Tech to sell Grindr, the popular LGBTQ dating app, over concerns that the personal data of American users could be exploited for spying or blackmail. After Grindr was sold to a US company, however, its data was acquired by a conservative Catholic group and used to identify and track priests who used the app, an investigation by the Post found. Indeed, the buying and selling of data in such circumstances is legal in the US. Eric Seufert, a venture investor, noted on Twitter this week that banning TikTok "wouldn't address the core of the problem epitomized" by TikTok, adding that "a federal privacy law that sets rigorous standards for how data can be aggregated, activated, and utilized is urgently needed."

A TikTok ban, Seufert also wrote, would be a "clumsy, sledgehammer policy." Seemingly undeterred by that prospect, a group of twelve US senators introduced a bipartisan bill this month handing President Biden the keys to the sledgehammer closet. The legislation, known as the RESTRICT Act, would allow the Department of Commerce to "review, block, and mitigate" software and hardware made by entities in adversarial nations including China, Iran, and North Korea should the software or hardware be judged to pose an "undue or unacceptable risk" to Americans. The White House appeared to endorse the bill, based on comments made by Jake Sullivan, Biden's national security adviser. Sullivan said in a statement that the bill "presents a systematic framework for addressing technology-based threats to the security and safety of Americans," and urged Congress to "act quickly sending it to the President's desk."

Senator Mark Warner, a Virginia Democrat and one of the bill's sponsors, pointed out in a press conference that the law isn't targeted specifically at one foreign-owned company. "Before TikTok, there was Huawei and ZTE and before that there was Kaspersky Labs," Warner told Forbes, referring latterly to a Russian-founded cybersecurity firm. One difference between TikTok and these other companies, however, is that Huawei and ZTE sold hardware such as routers and cellphones, whereas TikTok is a social-media app that is used to share personal videos. That difference could make a ban difficult. Donald Trump issued an executive order banning TikTok in 2020, but as Baker-White has noted, the company appealed that order, and won. TikTok's lawyers argued that Trump didn't have the authority to issue the order because of a set of provisions known as the Berman Amendments, which were passed by Congress during the Cold War to facilitate the free movement of movies, books, music, and other cultural property.

Given this history, it's probably not a coincidence that Chew will today characterize a possible ban of his app as "silencing speech." And the argument that the First Amendment rights of TikTok users supersede any national-security implications of the app's Chinese ownership could be a powerful defense. Adam Segal, a national security and Chinese policy expert at the Council on Foreign Relations, told the Post last week that "many of the legal issues that TikTok used to block the forced sale under the Trump administration would still be relevant. And there's still the high possibility that the Chinese wouldn't allow a sale," for national-security reasons of their own. In which case, talk about banning the app or forcing its sale could amount to a lot of sound and fury, signifying very little.