A few weeks ago I predicted (on TikTok!) that TikTok will be banned in the United States or ByteDance will divest its ownership interest.  That prediction is inching closer to reality.  

A middle-ground solution is unlikely.  Any solution that continues to give ByteDance, a Chinese company, majority ownership and control over TikTok threatens U.S. national security interests, not to mention the minds of millions outside China.  

Have you seen the remarkable difference between China’s version of TikTok compared to the rest of the world?   

But let’s be honest.  TikTok is a great app.  I love it.  It’s the most engaging and interesting social media platform I’ve ever used.  The algorithm is scary good.

So good in fact that I’ve more than once thought it was listening to me.  Or watched what I typed outside the app.  Maybe it was.  It has always seemed to know just a little too much about me.  Especially after I’ve casually said something that then magically appears in my For You feed hours later.

TikTok is also insanely addictive.  At least the version outside China.  The millions of westerners who use the app regularly make it commercially strong, but at the same time potentially lethal.  With so many eyeballs, it’s the perfect place for propaganda to flourish.  

It’s hard to think of a scenario where China would not be incentivized to try to tap into this propaganda treasure chest, regardless of the firewalls TikTok has assured us it’s implementing.  Yet despite the potential threat it poses to some 100+ million Americans – including myself – we continue to use it.  This makes banning or otherwise restricting the app a difficult endeavor. 

The hurdles to banning TikTok are significant

Imagine that you have a teenage daughter.  Maybe you already do.  If she’s American, chances are she’s already plugged into TikTok.  Probably since the dance videos that made the app initially famous.  

Scores of nonvoting teenagers like her will revolt if TikTok suddenly disappears from American phones.  And in fact, many senior citizens will be up in arms too – the majority of my followers are in this demographic.  I guess they enjoy my legal and political ramblings.  

The point is that any Congressman who votes to ban TikTok may have an army of angry parents at their doorstep.  Although there will surely be some overjoyed parents.  Regardless of how upset their teenagers are.

A TikTok ban could also be a boon for YouTube Shorts and Instagram Reels.  It’s not like there aren’t (lesser) alternatives!  

TikTok knows this.  They don’t want to lose 100+ million American users, but they’re also no longer acting shy about using their popularity as leverage.  TikTok has recently gone on a lobbying blitz in Washington, D.C. after years of passive action.

Although TikTok’s popularity is not even the biggest hurdle facing U.S. lawmakers and regulators.  It’s the Berman Amendments.  These are what TikTok’s lawyer’s relied on when the Trump administration first tried to ban TikTok.  The amendments prohibit a president from regulating or banning “informational materials” from adversarial countries.  At the time they were passed in the later years of the Cold War, one of the primary adversaries was Fidel Castro’s government in Cuba.

There are arguments, however, that social media did not exist at this time and therefore companies like TikTok should not enjoy these types of First Amendment protections.  Although no judge has bought that argument to date.  The Biden administration has retreated from its pursuit of banning TikTok – probably for this reason – after the Trump administration failed to have their proposed ban upheld. 

Any ban passed by Congress would have to include – at a minimum – a narrow waiver of the Berman Amendments.  This would probably be difficult, but the issue is largely bipartisan so it has better odds than most pieces of legislation.  The larger question would be the scope of the waiver – would it only cover TikTok, or would it include potential bans for any social media platform owned or controlled by a company based in an adversarial country? 

Given the popularity of TikTok and the challenges of an outright ban, divestment is probably the most likely outcome.  This approach would remove ByteDance and therefore China from the equation.  They would effectively cash out – at least the U.S. operations – to a U.S.-owned and operated company. 

“The concern is that this app gives the Chinese government a back door into our phones”

– Rep. Michael McCaul, Republican

Regardless of whether the approach is an outright ban or divestment, U.S. lawmakers and regulators want the current status quo to change.  There is simply too much risk with the Chinese Communist Party having oversight of ByteDance and its operations.  ByteDance could construct the most elaborate and sophisticated control environment to shield U.S. user data from mainland China, but so long as it remains a Chinese company, the threat and risk will never disappear.

Most U.S. lawmakers on both sides of the political spectrum see the issue in the extreme for this very reason.  China already poses a significant threat to U.S. national security.  With some 100+ million Americans at the mercy of an algorithm operated by a Chinese company, that threat increases exponentially.

The writing is on the wall for a TikTok ban or divestment

Recent evidence suggests that TikTok employees have employed “heating” on certain content.  Videos that TikTok employees want to supercharge into virality are hand selected outside the confines of the algorithm and pushed on For You feeds everywhere.

If TikTok employees can employ such tactics, can you imagine what the Chinese government could do?  Especially ahead of the 2024 U.S. elections.  

TikTok has proposed putting all U.S. user data into domestic servers owned and operated by Oracle (an American company), but how can anyone completely trust this type of firewall?  It’s not like it’s foolproof.  Or capable of stopping someone from physically copying and removing the data.

As someone who worked in compliance at a big bank, the key phrase is reasonably designed to comply with relevant laws, rules, and regulations.  All one can do is design a control environment so it has the best chance of succeeding.  But there are no guarantees.  And controls break all the time.  

No current U.S. politician wants to wear that risk.  Every Democrat and Republican acts tough on China.  Unlike with Russia and Putin, there are few (or even no) China and Xi Jinping apologists.   

With 100+ million American minds on the line, U.S. lawmakers and regulators cannot afford to sit on the sidelines.  A U.S. House panel plans to vote on a potential TikTok ban later in February 2023.  Other similar ban bills, including one from Marco Rubio, are floating around the halls of the Senate.

The writing is on the wall for TikTok.  While a ban may prove to be too difficult, the will to take legislative and/or regulatory action is there; something that’s all too rare these days, and therefore makes me think it’s likely to actually happen.

For as great as TikTok is, it’s unfortunately found itself wedged in a geopolitical battle for determining the future world order.  It would be wise for them to pat themselves on the back, cash out their U.S. chips through divestment, and avoid a prolonged struggle with the U.S. government.  

How wise do you think they are?