What brings Democrats and Republicans together these days? The answer is attacking the CEO of a foreign-owned video app in a congressional hearing. Whether those attacks are to make a political point or a substantive difference is another question.

TikTok CEO Shou Zi Chew testified before the House Energy and Commerce Committee in a hearing about the app’s consumer privacy and data security practices, children’s safety, and its relationship with the Chinese Communist Party. TikTok is owned by Beijing-based ByteDance.

The approximately five-hour hearing did little to assuage the concerns of lawmakers. If anything, it heightened the concerns that the CCP could access personal data and influence over the content of American TikTok users.

There has been no proof thus far to substantiate these concerns, but that isn’t stopping Congress. “TikTok is a weapon by the Chinese Communist Party to spy on you, manipulate what you see and exploit for future generations,” said Rep. Cathy McMorris Rodger (R-Wash.), the committee chair at the TikTok hearing.

It’s popular to be a China hawk in Washington, D.C. According to Gallup News polling, American favorability towards China is at an all-time low of 15%. Just five years ago it was at 53%. But the recent move away from globalization, the rise of China’s economic and military power, and the Covid-19 pandemic have all contributed to a Cold War mentality. Add to it that TikTok is a social media company, a sector already maligned by many Americans, and it creates the perfect political storm.

Biden Is Putting The Onus On Congress To Act

Most of the policy action related to TikTok has revolved around the executive branch. In 2019, the Committee on Foreign Investment in the United States, known as Cfius, began a review of ByteDance’s acquisition of US-based Musical.ly, which later merged into the TikTok app. The interagency committee investigates foreign investments in the United States that could pose a national security risk. If such a risk exists, Cfius is authorized to unwind a deal.

TikTok offered a solution in what’s called “Project Texas.” It would store American user data on servers operated by Texas-based OracleORCL
. A TikTok subsidiary called U.S. Data Security would control the data, which can be monitored by the U.S. government. However, the Wall Street Journal first reported that Cfius rejected Project Texas and demanded TikTok’s Chinese owners sell their stakes in the company or face a ban.

However, there are logistical, legal, and political complications with the pure administrative route on TikTok.

For one, China said it would “firmly oppose” any forced sale of TikTok, citing its own national security interests in maintaining control of the app’s algorithm.

Any attempts of the Biden administration to try to ban TikTok could run into the same problem the Trump administration faced back in 2020. The courts overturned former President Donald Trump’s executive order banning TikTok, noting the move as “arbitrary and capricious.”

Finally, there have been internal divisions within the Biden administration over TikTok. While national security officials supported taking action, Treasury officials were concerned about the legal implications. Commerce Secretary Gina Raimondo has cited political risks as well. “The politician in me thinks you’re gonna literally lose every voter under 35, forever,” said Raimondo in a Bloomberg Businessweek interview on the idea of banning TikTok. According to a Quinnipiac University poll, a plurality of Americans support a TikTok ban, but a solid majority of Americans aged 18 to 34 oppose it. Younger voters tend to be part of the Democratic base.

President Joe Biden is known to delay difficult decisions that divide his advisors and his party. His view may be that it’s better to get legislative support first so his administration can survive legal scrutiny and cultivate greater political buy-in.

The Clock Is Ticking On Congress To Act On TikTok

The Biden administration came out in support of bipartisan legislation in the Senate that would empower them to take action on TikTok. The RESTRICT Act, with 19 cosponsors already, would give the administration greater legal standing to “identity and mitigate foreign threats” from tech-based products and services. This would not just mean the administration could block TikTok but other foreign technologies or companies as deemed necessary.

However, some Republicans believe Biden is weak on China and don’t want to give the administration flexibility on what to do with TikTok.

Republicans on the House Foreign Affairs Committee passed the DATA Act on a party-line vote. The legislation would specifically empower the administration to ban TikTok and require the imposition of sanctions on companies with connections to certain Chinese companies. Some Democrats have called the legislation “dangerously overbroad.”

Beyond the RESTRICT Act and DATA Act, there are several other bills introduced in Congress dealing with TikTok.

Ultimately, success on TikTok legislation will require coordination from Republican leadership in the House, Democratic leadership in the Senate, and the Biden administration.

House Speaker Kevin McCarthy (R-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.) have both dragged their feet on bipartisan big tech legislation in the past. But both are China hawks and several U.S.-based tech companies are leading the charge against TikTok and China.

McCarthy supports a TikTok ban while Schumer has said it “should be looked at.” In the quest to pin the other side as weak on China, whether the two sides let politics overtake negotiations remains to be seen. The further negotiations drag out, the harder it will be to reach an agreement as the 2024 election nears.

Whatever the case, a ban of TikTok would likely take time. If Congress can pass something like the RESTRICT Act, the Biden administration may try to seek a divestment before a ban. Even with greater legal footing, TikTok could seek to overturn any potential ban in courts, citing First Amendment violations. Any final action could very well take until after the 2024 election. By then, the political considerations over TikTok may have shifted for a future Congress and White House.

TikTok is in the midst of an American political storm. It’s fate will depend upon the dysfunction of America’s political system.

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