By Glenn S. Gerstell
Mr. Gerstell is a senior adviser at the Center for Strategic and International Studies and served as general counsel of the National Security Agency and Central Security Service from 2015 to 2020.
A ban of TikTok throughout the United States, if it could actually be enacted, would immediately solve our national security concerns about the wildly popular Chinese-owned video app. But such a ban might ultimately put our national security at greater risk. Moreover, it would sidestep a broader problem — our nation’s overall failure to address concerns over the huge amount of personal data collected in our digital lives, especially when that data could be used by foreign adversaries.
When it comes to its own citizens, China has prohibited everything from Google to Twitter to this newspaper. Rather than viewing that asymmetry as unfair, we should recognize its symbolic value: America wins when it can show the world that it’s an open and democratic country. Not surprisingly, banning TikTok on the grounds that it’s a threat to our security won’t be seen by other nations as much different from the People’s Republic of China’s actions to protect itself. It’s also not certain that the federal government can, under the First Amendment, simply prohibit access to a significant communications platform or that it can control online content so as to preclude disinformation. And then there’s the political question of whether TikTok’s estimated 100 million American fans will allow it to be taken away from them.
The case against TikTok isn’t hard to make. The heads of the F.B.I. and our spy agencies fear that the Chinese government will force TikTok’s owner, ByteDance, to hand over the extensive personal information of the app’s American users or demand that it push disinformation.
In fact, China’s 2017 National Intelligence Law requires Chinese companies to furnish any customer information relevant to China’s national security. TikTok collects astonishing amounts of user information, more than some other popular social media apps. There’s no evidence that ByteDance has ever turned over this information to the Chinese government. Yet in an episode that revealed the possibility of future government interference, ByteDance itself admitted in December that it had fired some China and U.S.-based employees for wrongfully snooping on American’s private information, including that of journalists, collected through TikTok.
Although it hasn’t happened yet, it’s easy to see how China could commandeer the powerfully influential app to affect elections or manipulate public opinion, with especially pernicious effects in a time of crisis. Two out of three American teenagers have used TikTok, so disinformation on the app could be particularly potent for that impressionable audience. There’s no better evidence of why a government might fear the app’s insidious nature than the fact that TikTok is banned in China itself. Instead, the Chinese government lets ByteDance use a limited domestic version of the app that’s explicitly subject to state censorship.
Were American users’ personal data to be given to the Chinese government, or if the app were to spew Chinese disinformation, it would be almost impossible to undo the harm. So it’s no surprise that following congressional hearings on the risks, the federal government banned TikTok from government-owned phones and computers, and many states have done the same. That hardly solves the problem, since there’s no ban on using TikTok on an individual’s personal devices. Yet legislation pending in Congress would effectively do just that, nationwide. Moreover, if it wanted to collect information on Americans, China could sidestep a ban and legally, though with a little more effort, purchase almost limitless amounts of information from data brokers who stockpile information about our online activities.
If we had comprehensive laws that limit the collection and misuse (including the potential export to China) of Americans’ online personal data, then fears about the Chinese authorities using the app for surveillance and data collection would be greatly reduced. The freewheeling data broker business would also be restricted, so all that data would no longer be readily available. After years of debate, Congress came tantalizingly close last year to adopting basic data privacy legislation. In the meantime, several states have moved ahead with their own privacy laws — hardly an efficient solution to a national and transnational problem. As if to illustrate the point, Indiana recently sued TikTok, claiming it violates state consumer protection laws. No one’s figured out how to operate a social media app with different rules for each state.
Either way, through new privacy laws or imposing a full national ban that passes constitutional muster, Congress will have to act. Federal law governing foreign investment has historically been focused on national security concerns such as ownership of defense industry contractors, not on attributes of the digital age, such as social media apps. Indeed, President Donald Trump tried to ban TikTok under a 1977 statute, the International Emergency Economic Powers Act, but TikTok successfully argued in court that the law didn’t cover the platform.
The recent limited bans on TikTok are mostly an effective way for politicians to sound tough on China. The House of Representatives has just established a select committee to investigate the strategic challenges posed by China to America’s economy generally and especially to its tech industry. There’s no dispute that China represents a genuine threat in many ways — but the danger is that political winds will push us to do something bold about TikTok without thinking through the long-term consequences.
President Biden’s national security team has been negotiating with TikTok over an arrangement that would require U.S. users’ data to be kept in servers in this country, subject to a three-person board of overseers to ensure that data isn’t siphoned off to China and to prevent China from censoring or manipulating information on the platform. It’s not clear whether the complicated, long-running negotiations, handled by the Committee on Foreign Investment in the United States, will succeed, but TikTok has recently shown willingness to disclose its content algorithms, which could remove one of the stumbling blocks.
But if U.S. negotiations with TikTok aren’t successful and we don’t have data privacy laws to prevent the problem in the first place, why not a complete ban of TikTok in the United States? Because of the highly visible nature of TikTok, the substantive consequences of a ban would be far more important than the symbolic ones. Prohibiting TikTok would set on evermore divergent paths the two nations that have the greatest power to affect the world order. There has, of course, been endless debate over the wisdom of decoupling the U.S. and Chinese economies and the concomitant rise of separate and dueling Chinese and Western technology systems. For the United States, decoupling has included curtailing Chinese surveillance technology — restricting, for example, Huawei telecommunications equipment and DJI drones. That arguably makes sense where the risk can’t be mitigated or controlled and prohibition is the only practical solution.
But we haven’t taken the step of evicting Chinese social media. Given the app’s use by about a third of the U.S. population and its association with the everyday expression of political and personal views, outlawing TikTok would constitute a disproportionately greater move toward decoupling and might invite retaliation — as compared with outlawing commercial hardware containing surveillance-capable chips.
Keeping Chinese enterprises invested in the U.S. economy and its technology pays indirect but powerful geopolitical dividends in the form of dampening China’s willingness to antagonize the United States. President Xi Jinping would surely think twice before taking action that would jeopardize the 17 percent of his country’s trade that goes to the United States or its almost trillion-dollar holdings of U.S. government debt (only Japan has more). In assessing incremental risks of Chinese technology, we need to think carefully about the cumulative long-term implications, since each step potentially both emboldens and further isolates China, thus jeopardizing our national security in more profound ways.
Such a calculation doesn’t mean we should shortchange security concerns about Chinese surveillance and disinformation. We have some maneuvering room to protect ourselves from a potentially dangerous app while still enhancing long-term national security. The optimal way forward would be for Congress to enact a law governing the collection and misuse of online personal and commercial data that would apply not only to current apps such as TikTok but also to future digital apps (whether or not foreign-owned) posing security or privacy concerns.
Without such congressional action, the next best outcome would be for ByteDance, recognizing that the status quo is untenable, to sell the app to an American company. ByteDance has resisted that, so the more likely resolution will be an arrangement approved by the Committee on Foreign Investment in the United States to oversee the app, with American executives controlling content and user data. If neither is possible, only then should we resort to an outright TikTok ban — recognizing that choosing an expedient, simple solution for one national security problem might generate a more complex and enduring one.
Glenn S. Gerstell is a senior adviser at the Center for Strategic and International Studies and served as general counsel of the National Security Agency and Central Security Service from 2015 to 2020.
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