Once More With Feeling: Banning TikTok Doesn’t Do Much If We Don’t Regulate Data Brokers And Pass A Privacy Law
from the it's-the-corruption,-stupid dept
While it seemed like our national policy hysteria over TikTok had waned slightly in 2024, it bubbled up once again last week upon rumors that the White House is supporting a “welcome and important” new bill that would effectively ban TikTok from operating in the United States.
The bipartisan bill (full text) — which moved forward last week in spite of TikTok’s ham-fisted attempt to overload Congress with phone calls from users — sponsored by Reps Mike Gallagher and Raja Krishnamoorthi, prevents all ByteDance-controlled applications from enjoying app store availability or web hosting services in the U.S., unless TikTok “severs ties to entities like ByteDance that are subject to the control of a foreign adversary.” Basically, the bill wants ByteDance to divest TikTok, preferably to an American company.
You’ll recall the Trump administration’s big “solution” for TikTok was basically cronyism: to force the company to sell itself to Walmart and Oracle. That is: companies controlled by Trump’s cronies, with their own track records of bad behavior and privacy violations. You’ll also recall that Facebook has been very busy sowing congressional angst for years about TikTok for purely anti-competitive reasons.
The bill applies to any company owned by ByteDance, whether or not anybody has actually proven any sort of meaningful connection to Chinese intelligence (we’re working off of vibes here, man). There’s also some murky language in the legislation that curiously excludes companies that deal in reviews, a nice treat for whatever company successfully lobbied for that exemption:
EXCLUSION: The term ‘‘covered company’’ does not include an entity that operates a website, desktop application, mobile application, or augmented or immersive technology application whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.
To be very clear: TikTok certainly isn’t without surveillance, national security, and notable privacy concerns. And the authoritarian Chinese government is, without question, an oppressive genocidal shitshow.
But banning TikTok, while refusing to pass a privacy law or regulate data brokers (which traffic in significantly greater volumes of sensitive data at much greater collective scale), winds up mostly being a performative endeavor driven more by anti-competitive intent (and a desire to control the flow and scope of modern news, information and propaganda) than any desire for serious reform.
A lot of the congressional opposition (especially on the GOP side) to TikTok comes largely from the belief that white owned and controlled American companies are owed, by divine right, access to the massive ad revenues Chinese-owned TikTok enjoys. For Luddites and policy nitwits like Tommy Tuberville, I strongly doubt the thinking extends much further than that.
I also think Republicans very much don’t like the idea of a company that could potentially traffic in propaganda that isn’t theirs. They’ve worked very hard for several years to scare feckless U.S. tech giants away from policing race-baiting political propaganda online (a cornerstone of modern GOP power), and their inability to control TikTok presents an obvious concern for entirely self-serving reasons.
But even lawmakers who sincerely believe that banning TikTok makes meaningful inroads on national security or consumer privacy generally don’t seem to understand the size and scope of the problem we’re dealing with.
You could ban TikTok with a patriotic flourish from the heavens immediately, but if we fail to regulate data brokers, pass a privacy law, or combat corruption, Chinese (or Russian, or Iranian) intelligence can simply turn around and buy that same data (and detailed profiles of American consumers) from an unlimited parade of different data brokers, telecoms, app makers, marketing companies, or services.
And they can do that because the U.S. has proven to be, time and time again, too corrupt to do the right thing or hold giant corporations (domestic or otherwise) accountable for privacy abuses. The result has been the creation of an historically massive, planet-wide, data monetization and surveillance machine that fails — over and over and over again — to meaningfully protect public safety and consumer privacy.
Congress has repeatedly made it very clear that making money is significantly more important than consumer welfare and public safety, as the scandal over sensitive abortion clinic location data makes clear. The U.S. government is also disincentivized to act, because it’s found exploitation of this privacy-optional nightmare to be a super handy way to avoid having to get warrants for domestic surveillance.
The Biden administration does appear to at least recognize the threat, as evident by their recent executive order trying to slow the flow of data broker data to problematic governments.
But it’s not enough. Congress needs to pass a privacy law for the internet-era with teeth that applies to all companies that operate in the U.S., foreign or domestic. It needs to adequately staff and fund the FTC so it can actually address the problem at the scale it’s operating at. And it needs to close the privacy loopholes that lets government surveillance efforts exploit the dysfunction.
But Congress won’t do that because Congress is comically, blisteringly corrupt. We’ve defanged our regulators for decades under the pretense it fostered an innovative, free market renaissance that never happened. When discussing our failure to meaningful protect U.S. consumer (and industry privacy), this corruption just isn’t mentioned–as if it’s simply somehow not relevant to the problem at hand.
Countries that care about national security make fleeting efforts to combat corruption, and don’t support NYC real estate conmen with fourth grade reading levels for the most powerful office in the land.
Countries that care about consumer privacy pass privacy laws, regulate data brokers, and generally hold corporations (and executives) meaningfully accountable for failing to secure consumer data. T-Mobile has been hacked eight times in five years due to comically lax security and privacy standards, and I’ve yet to see Congress lift so much as an eyebrow.
The myopic hyperventilation about TikTok (and TikTok only!) is mostly a distraction. A distraction from the GOP’s ongoing quest to turn the internet into a propaganda dumpster fire. A distraction from our failures on consumer protection. A distraction from Congressional corruption. A distraction from the fact that we’ve lobotomized our regulators in exchange for Utopian promises never actually delivered.
Banning an app that may not even be popular five years from now — but doing absolutely nothing about the corruptive rot that enabled its privacy abuses — is a hollow performance that simply doesn’t strike at the heart of the actual problem.
Filed Under: chinese intelligence, data brokers, performative, privacy, security, social media, spying, surveillance, tiktok ban
Companies: bytedance, tiktok
Comments on “Once More With Feeling: Banning TikTok Doesn’t Do Much If We Don’t Regulate Data Brokers And Pass A Privacy Law”
I’d love for them to ban TikTok going forward, and see how that pans out for major American tech companies worldwide because God knows, they’re more than happy to peddle propaganda, collect data for shady entities and leak like a sieve. Once the precedent is set, they’re going to have a hell of a time explaining why foreign chunks of American companies can’t either be handed to oligarchs or closed.
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I’m all for banning data brokers too, if we manage to write a law that bans only Chinese data brokers. The problem with TikTok is not because it’s bad for privacy, it’s because it’s owned by the Chinese (and by extension, by the CCP). And we don’t want communist indoctrination in our wonderful democratic capitalist nation.
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Unenforceable
Data brokers outside the United States are not subject to us laws
But TikTok is meant to be the distraction from the fact that we don’t have meaningful privacy legislation. This whole thing is our legislators pretending to do something, because if they did what they should actually be doing, they’d upset their donors.
TikTok/ByteDance would likely sue, just as they did with Trump’s EO and the attempted Montana ban. The First Amendment problems are key here, since these efforts are the most restrictive means possible on First Amendment liberties, meaning courts will have a hard time finding that suppressing speech is justified (and the government bears the burden on proving a credible national security threat) if less restrictive measures exist to mitigate whatever threat even exists (and the U.S.’s vague explanations aren’t good enough to justify more restrictive measures).
Besides that, the average time to sell a business is 6-12 months, while the 5 1/2-month timeframe in the PAFACA to find a buyer seems set up for failure. (Grindr took a year to divest from its Chinese owner to a British company after being ordered to do so by the CFIUS in 2019, and the CFIUS didn’t need a “ban as leverage” threat to comply, so there’s no need for one here and the timeline makes due diligence unnecessarily difficult.)
Also, any lawmaker who thinks the U.S. has leverage to force TikTok to be split up from ByteDance fails to realize that Trump pretty much screwed up the odds of a sale. Had the CFIUS been given the final say for divestiture in August 2020, a sale would have happened easy-peasy. But the same day it was reported the CFIUS was planning to force a sale, Trump went forward with announcing his ham-fisted ban EO, which was later drafted with a divestiture timetable shorter than the PAFACA’s provisions; Chinese regulators responded by implementing new controls on AI (which controls TikTok’s filters and algorithm), making it more difficult to be exported and thereby diluting TikTok’s value to any buyer, since whoever acquired it would likely have to rebuild the app’s AI filter and algorithm technology from scratch.
Finally, lawmakers are walking into a trap. They ignore that content creators (including those who have diversified to other platforms) would lose revenue, damaging the creator economy in the process, along with damaging customer acquisition opportunities for small businesses. They have been left entirely out of the conversation. Autocratic nations will also be encouraged to permanently block U.S. social media companies under specious reasons, damaging their revenue, and China could be encouraged to retaliate by expelling U.S. companies doing business in the country, damaging their revenue and likely increasing manufacturing costs that we the consumer would shoulder.
So, D.C. Sinophobic paranoia about TikTok will have repercussions that will come back to haunt them, repercussions that could be avoided if TikTok is successful at stopping this law, and establishing the government can’t dictate what apps and websites Americans can access in the same manner as China. Biden and any Democrats who support PAFACA also need to realize they undermine any capital to contrast themselves as pro-democracy compared to Trump/MAGA by associating with speech-restrictive legislation that is not “small d” democratic in any way.
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Not to mention the US constitution’s ban against bills of attainder (unless I’m mistaken, I am no lawyer).
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No, you’re not mistaken.
And to make the situation even crazier, I just saw on CNBC that Trump has stated he fears a TikTok ban would empower Facebook, which he calls an “enemy of the people.”
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When it comes to Trump’s statements, it’s always important to remember: any similarity to actual persons or events is entirely coincidental.
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While Trump is likely doing because he met with a rich donor who owns a huge stake in TikTok, it does make it political suicide for the Democrats to go along with this before the election since it would let Trump run on “I will refuse to block TikTok” no matter how sincere it is. Lets say this bill were to pass in July, regardless of how the courts end up ruling on the constitutionality, come election day there would be a count down until the day TikTok gets banned and if Trump could run on “I will stop the ban”.
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Indeed.
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Oh, I completely agree that Trump is only saying so for self-serving reasons. I wanted to point out the hypocrisy of it (as when he was president he pushed for TikTok to be divested). Not because it’s shocking, but to illustrate that this is all performative and self-serving nonsense.
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Trump himself is all performative and self-serving nonsense. Tell me something new.
Re: What about Truth Social?
Ironically, isn’t this just admitting that Facebook is superior to his own Truth Social? He missed an opportunity to say something like:
This is a very good thing for Truth Social. TikTok had a lot of the best looking people, but Truth Social has all the best looking people. It’s the best online social platform. I have been saying for a long time, and I think you’ll agree, because I said it to you once, it brings all the best people together to voice their first amendment protected speech. And the women, lots of women will move to Truth Social. Nobody has more respect for women than me, as I have often said, the ban of TikTok will make all the users go to Truth Social.
-Donald Trump (Not actually)
Well color me offended!
As someone that’s been called a nitwit more than once, I’m disgusted at the insult of suggesting that my brainpower might be at a Tuberville low!
I think all this stuff is economic warfare. If they say something like “TikTok is banned because U.S. companies can’t operate similar apps in China”, I think people would buy that.
But what we get is the US department of Conspiracy Theory pulling stuff out of their you-know-what about TikTok, EV cars, Huawei chips and so forth. And I don’t think the public is buying this stuff any more than the general nonsense they spit out on other stuff.
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Problem is, China doesn’t have free speech protections, so they can restrict any websites and apps they want. The U.S. can’t do that, because we have constitutional protections on speech, and restricting apps and websites from foreign nations wouldn’t fit within the narrow exceptions to First Amendment rights as it would incur limits to accessing protections on speech on too much of the population (under the “least restrictive means” concept)… and yes, that includes foreign propaganda (which even the Supreme Court, in a 1960s case dealing with restrictions on Soviet propaganda, has held cannot be restricted under the 1A).
The risk is China can damage the U.S. economy in retaliation by forcing American companies doing business there (like Apple, Microsoft, AMD and GM) to cease operations or manufacturing, or force them into selling their Chinese operations over to Chinese companies under specious national security grounds. This would be very problematic from a supply chain perspective as a large percentage of products sold here in the U.S. are manufactured in China.
Reading the bill
Reading the bill, considering the Saudi investment in Twitter when Musk privatized the platform, it seems like this bill (if passed as written and found to be constitutional) would lead to a fairly straight forward path to banning Twitter if the US were to make the (potentially otherwise reasonable) decision to add Saudi Arabia to the list of foreign adversaries if their investment were to reach the listed critical amount. Separately, the 20% threshold would probably be very relevant to companies that have received funding from Tencent depending on how broadly this bill gets applied in the future.
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It prevents the CCP from potentially swaying elections with viewpoint discrimination
Sure, I’d like a data privacy law (though really I’m worried about my government buying that, not corporations) but the big problem with Tik Tok isn’t the privacy, it’s that the CCP controls it.
Duh.
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“It prevents the CCP from potentially swaying elections with viewpoint discrimination”
But foreign money swaying elections is perfectly fine.
/s
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Specifically, Russian money is fine if it sways elections.
Russian help is fine if it sways elections.
But not Putin’s sugar daddy Xi’s money. Because Trump is still angling for a “deal” from Xi.
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That didn’t happen. It’s been shown 20 different ways that didn’t happen.
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From where did donny’s bond payment come from?
Who is paying all the trolls?
twenty ways to leave your lover
Re: Re: Re:2
…hallucinated nobody mentally competent, ever.
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Yet again, Toom accuses someone else of mental incompetence because he himself is too mentally incompetent to spot clear satire.
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Those were all certainly words.
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Another one that lacks reading comprehension. Just one more and we can fill the clown car.
Congress refusal to deal with data brokers or pass a general privacy law isn’t just corrupt, it probably hurts the inevitable constitutional challenge this bill would face. The national security concerns for banning the platform will ring hollow in court when it remains legal for data brokers (or anyone else with data, be it Meta or Elon Musk) to sell the same data to China.
In terms of unintended consequences, it seems like it would be a blow for US soft power if the US were to successfully ban the platform, and TikTok were to create the infrastructure to continue to work for the rest of the world without US posts or hosting.
Bigots got to bigot.
Perfect is the enemy of good
I strongly agree that we need serious data privacy laws but the more the public insists on getting everything the more likely they are to get nothing. This is at least a step in the right direction.
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The main intent of this bill is to force a sale of TikTok to a Western owner who would then be able to operate within the US with the same laws (and lack thereof) Facebook/Twitter/Data Brokers currently operate under. Passing a law that “takes care of the problem” in the mind of politicians, while in the long run probably not even addressing it on the platform the bill is explicitly targeting, is not doing “better than nothing.”
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I agree, but … == I disagree
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No, it very much isn’t, as it does nothing to address the underlying problem and instead frames it as a TikToc-centric issue, giving the false impression that privacy is being protected by this move when it very much isn’t.
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This bill says that the solution to America’s privacy problem is to put Bobby Kotick in charge of TikTok, which in my opinion not actually any solution at all.
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It isn’t a step in any useful direction, and does zero (or less) for privacy. This argument has always been bad, and should feel bad.
Even if isps are ordered to block tiktok, that can be bypassed using a VPN
Banning VPN services will not work as one could set up their own private VPN offshore in a data center
Data centers outside the United States are not subject to is jurisdiction
That is why Italy’s piracy shield will fail
People who can afford it will just put their own private VPN server at a data center outside of Italy.
Data centers and isps outside of Italy do not have to follow Italian law
'That country is an enemy, let's give them the rope to hang us!'
Well I certainly can’t see how foreign governments might use this precedent against US companies, say by insisting that local ‘branches’ be divested from their parent company and be sold to a local company to own and control…
And now BOBBY KOTICK wants to buy Tiktok...
Sources: https://kotaku.com/tiktok-sale-bobby-kotick-1851325000
https://www.wsj.com/tech/why-the-new-effort-to-ban-tiktok-caught-fire-with-lawmakers-7cd3f980?st=jnjw9hqtrb8mfct&s=03
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Then he’d have to legally change his name to Bobby Kotick-tok.
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He’s not the only one, either. Mr. Dingbat, Kevin O’Leary said he wanted to buy it as well: https://www.inc.com/melissa-angell/kevin-oleary-wants-to-buy-tiktok-make-it-part-of-mr-wonderfuls-empire.html
I have my doubts he’ll end up with it, but if he does, I fully expect him to Musk up that platform.
ISP site-blocking
This bill seeks to “ban” TikTok by kicking it out of app stores and US-based hosting providers… they could just evade it by making a web version instead of an app, and using a non-US hosting provider.
In such a case, the inevitable next step for Congress would be… ISP site-blocking. Yep, that’s right, just like the dreaded SOPA.
I would not be surprised if the MPAA wants this to be the outcome – they’ve been quite vocal about ISP site-blocking and they might be trying a similar approach to what rightsholders in the UK managed to do – get ISP site-blocking in place for a different purpose (in the UK’s case, ISP site-blocking was called “Cleanfeed” and was initially only used to block CSAM) and then use the courts to force ISP’s to use it against alleged copyright infringers.
Remember the Sdarot case which almost brought ISP site-blocking to the US in 2022? This other commenter showed that the MPAA may have been involved. https://www.techdirt.com/2022/05/04/who-needs-sopa-judge-orders-every-us-isp-to-block-entire-websites-accused-of-enabling-piracy/#comment-3046063