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TikTok’s fate? Six ways the ban fight could go

TikTok is in a kind of limbo. 

The Biden administration has threatened to ban the popular video app in the United States because of security concerns with its Chinese owners. But there’s no deadline for the White House to make a decision, and Congress might want to have a say in the matter. 

The uncertainty has left the app’s millions of users and its critics with an open question: What’s going to happen to TikTok? 

There are a handful of possibilities, and while the timeline is unclear, here’s a guide to six plausible paths forward. 

Scenario 1: Congress dooms TikTok 

Then-President Donald Trump tried to ban TikTok in 2020 and failed in large part because courts ruled he didn’t have the legal authority. Now, Congress is thinking of giving that power to President Joe Biden. 

A bipartisan group of senators introduced a bill last month that would give the U.S. commerce secretary broad power to regulate or ban technology from six countries including China. They’re calling it the Restricting the Emergence of Security Threats That Risk Information and Communications Technology Act, or RESTRICT Act. 

There are lots of questions about how a TikTok ban might work, but the RESTRICT Act is sweeping in its language, saying the commerce secretary “shall take action” to mitigate certain risks. The bill also doesn’t leave much wiggle room for deliberation, saying the secretary shouldn’t take more than 180 days to determine if something is an “unacceptable risk.” 

In defending this path forward, Sen. Mark Warner, D-Va., one of the sponsors, said similar laws are proliferating globally. 

“Nations across the globe have made steps to mitigate foreign tech. The U.S. isn’t the only country acting on this,” he tweeted Thursday. 

The bill is a long way from becoming law, but it already has the backing of a quarter of the Senate. In this scenario, if the House and Senate pass it, a ban could become a reality less than a year after Congress acts. 

Scenario 2: Congress doesn’t act, but Biden bans it anyway

Not every senator is rushing to endorse a TikTok ban. Last month, Sen. Rand Paul, R-Ky., blocked an attempt to fast-track the RESTRICT Act, citing free expression. 

“Have faith that our desire for freedom is strong enough to survive a few dance videos,” Paul said

If Congress doesn’t pass the bill, the Biden administration could still try to restrict or ban TikTok using its current legal authority. A federal government board known as the Committee on Foreign Investment in the United States has already privately demanded that TikTok’s Chinese owners sell their stakes in the app, The Wall Street Journal has reported, citing anonymous sources whom it described as people familiar with the matter. NBC News has not confirmed that reporting.

The next step, in this scenario, might be an executive order from Biden echoing what Trump issued in 2020. State governors have already been going down that path

But this path involves a lot of legal and political risk for the White House. It would likely need to defend the ban in court — something Trump tried and failed to do in 2020 — and it wouldn’t have the political cover of acting in concert with Congress. 

Scenario 3: Biden does something small, or nothing at all

The idea of a TikTok ban has been floating around since before Biden took office more than two years ago, and he hasn’t done it. So, one scenario is that he never does. 

The administration and TikTok have been locked in negotiations for years over a potential written agreement that would lay out certain steps for TikTok to follow to help secure the data of Americans and prevent the flow of Chinese propaganda. It could be that those talks result in something that satisfies Biden. 

Or it could be that other parts of the U.S.-China relationship — the future of Taiwan or the competition for artificial intelligence — take precedence, and the threat of TikTok fades. 

TikTok has been bolstering its defenses in hopes of reaching a deal. TikTok creators have visited Washington, D.C.; TikTok CEO Shou Zi Chew has testified before Congress; and TikTok has pushed an endeavor that it calls Project Texas — working with Austin-based Oracle to store Americans’ data on U.S. soil. 

Scenario 4: Judges protect TikTok 

The courts came to TikTok’s rescue in 2020 when the Trump administration tried to restrict the app, as two federal judges in separate lawsuits said the administration had likely overstepped its legal authority and blocked the restrictions. 

Judge Wendy Beetlestone, an Obama appointee in Philadelphia, sided with TikTok users who were concerned about free expression, while Judge Carl Nichols, a Trump appointee in Washington, D.C., based his ruling on federal regulatory law in a suit that TikTok itself filed. 

Similar concerns would likely be at issue again if TikTok or its users were to sue, either after a White House move or ahead of time in order to pre-empt it. 

“Banning TikTok would violate the First Amendment,” Jenna Leventoff, senior policy counsel at the American Civil Liberties Union, said in a statement last month. “The government can’t impose this type of total ban unless it’s necessary to prevent extremely serious, immediate harm to national security.” 

TikTok’s success in court isn’t guaranteed, but if it could at least delay any restrictions, that would be some kind of win.

And if TikTok or its users wanted to take that path again, they’ll have even more legal muscle the second time around: TikTok has been on a hiring spree for lawyers in the past three years and has plans to hire many more lawyers, Bloomberg Law reported last month, citing eight recent hires and more open positions listed on a TikTok jobs board

Scenario 5: ByteDance sells it 

A spinoff of TikTok’s U.S. business from its Chinese parent company, ByteDance, would in some ways be the easiest path to take. It would avoid the messy political and legal fights over a ban, and users might not notice a difference. 

And ByteDance is already owned mostly by outsiders. More than 60% of shares are in the hands of “Western investment firms” such as Sequoia Capital, Fidelity and BlackRock, according to congressional testimony last year from Vanessa Pappas, TikTok’s chief operating officer. Founders and employees own “most of the rest,” she said. G42, an investment firm from the United Arab Emirates, bought shares last month, Bloomberg News reported, citing people with knowledge of the deal. 

China hopes to block this path. Beijing has said it would “resolutely oppose” a sale, arguing it would damage investors and hurt confidence for others investing in the United States. China also imposed export restrictions in 2020 that might complicate the transfer of TikTok’s algorithms, although how the rules might apply isn’t clear, according to CNBC. 

TikTok’s leadership considers a sale a last resort, Bloomberg News reported last month, citing people familiar with the matter. Its U.S. business could pursue either an initial public offering as a standalone company or a sale to a large tech firm such as Microsoft at a valuation of perhaps $40 billion to $50 billion, the news service said. 

Scenario 6: Congress passes a privacy law for all apps

As privacy advocates are always quick to note, the U.S. doesn’t have a national law for privacy on the internet as some other countries do. One scenario is that Congress passes one in the near future, possibly taking some of the heat off TikTok. 

It’s not entirely far-fetched. Negotiators in the Senate have bargained for years on a possible bipartisan data privacy law, and they seemed to get close to a breakthrough last summer before splintering over how such a law would be enforced. 

India McKinney, director of federal affairs at the Electronic Frontier Foundation, a privacy advocacy group based in San Francisco, said a privacy law wouldn’t have the constitutional issues that a ban might. 

“If the government is actually concerned with the amount of data that foreign companies like TikTok are collecting on Americans and then using it for whatever, then what they actually really need to do is have a comprehensive data privacy rule because that is what will prevent the collection of the information in the first place,” McKinney said in an interview. 

It’s not clear whether such a law would satisfy security concerns about TikTok, and it doesn’t preclude simultaneous actions like a TikTok ban, but supporters of the idea say it would put TikTok on similar footing to competitors such as Instagram, YouTube and Snapchat.

Source: nbcnews



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