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TikTok bill, racing toward House passage, faces a minefield in the Senate

The House on Tuesday was speeding toward a vote Wednesday on a bill that could lead to the forced sale or nationwide ban of TikTok, reigniting the battle over a massively popular video app that has come to epitomize Washington anxieties over the growing power of social media and China’s influence.

The legislation is widely expected to pass the House, but it lacks a companion measure in the Senate and faces an uncertain path there, with Sen. Rand Paul (R-Ky.) pledging in an interview to block any measure that he felt violated the Constitution. Paul’s opposition squelched a similar legislative effort a year ago.

Americans “choose to use TikTok to express themselves,” Paul said Tuesday. “I don’t think Congress should be trying to take away the First Amendment rights of [170] million Americans.”

President Biden has said he would sign the legislation if it cleared Congress.

While proponents say the bill would not ban the app outright, the legislation is an existential threat to TikTok, a cultural juggernaut used monthly by as many as 170 million people nationwide. The legislation would require TikTok’s parent company, the Beijing-based tech giant ByteDance, to sell the app within 180 days or see it barred from the Apple and Google app stores and web-hosting services in the United States.

TikTok, however, has pointed to comments from the bill’s supporters, including in its initial announcement, that specifically described it as a ban. China has vowed to block any sale by using export-control measures.

In a letter to members of Congress on Monday, TikTok executive Michael Beckerman said the bill raised “serious constitutional concerns” and was “being rushed through at unprecedented speed without even the benefit of a public hearing.” He added, “You have preconceived notions about TikTok based on what you read in the media — rather than facts or reality.”

A vote to approve would mark the first time a chamber of Congress has greenlit legislation that could lead to the nationwide prohibition of a social media platform.

Congressional lawmakers and federal officials have warned for years that TikTok’s ByteDance ownership might allow the Chinese government to seize Americans’ personal data or shape the app’s video recommendations for political gain.

Reps. Mike Gallagher (R-Wis.) and Raja Krishnamoorthi (D-Ill.), the leaders of the House select committee on China, introduced the Protecting Americans from Foreign Adversary Controlled Applications Act last week. The bill was rushed to consideration by the House Energy and Commerce Committee, which approved it on a 50-0 vote Thursday.

Supporters of the House bill say they expect to garner at least 350 votes Wednesday, enough to clear the necessary two-thirds approval.

“It’ll be overwhelming,” said Mark Montgomery, a former congressional staffer who has advised the committee on this and other technology issues and has worked closely with Gallagher.

Senior Biden administration officials have lent support to the committee’s effort to craft a bill, including Deputy Attorney General Lisa Monaco as well as top officials at the National Security Council and in the Office of the Director of National Intelligence, who have voiced concerns that China might use the app to gain access to users’ personal data or use it to influence Americans’ political opinions.

Federal officials, however, have provided no public examples of the Chinese government harvesting Americans’ data or altering TikTok’s algorithms in the five years since they launched a national security investigation into the app. FBI Director Christopher A. Wray, highlighting the risks, has said any tweaks to the app’s algorithm would be “something we wouldn’t readily detect, which makes it more of a pernicious threat.” Said another U.S. official, “The concern is very real and based on known behavior by the CCP,” or Chinese Communist Party.

TikTok officials have said the company is not owned, controlled or influenced by the Chinese government.

The bill’s critics — a diverse mix of civil liberties groups, progressive Democrats and hard-right Republicans — have argued that it represents a government overstep of Americans’ free-speech rights. Gallagher rejected that position this week, saying the bill was “about foreign adversary control of a social media application … not about shutting down speech.” He added, “As long as the ownership structure has changed, TikTok can continue, and Americans can say whatever the heck they want on the platform.”

Even some of the bill’s supporters, however, have questioned whether it will face the same fate as former president Donald Trump’s push to force a ban or sale of TikTok in 2020, when federal courts ruled the government had not adequately proved that the app presented a national security threat.

A hold by Paul could deal the bill a significant blow, delaying a vote in the Senate by a week or more. The Senate is only in session three of the next six weeks, and faces a calendar of pressing measures related to government funding, taxes and judicial appointments.

On Tuesday, Senate Majority Leader Charles E. Schumer (D-N.Y.) made no commitments about the measure’s advancement. “Let’s see what the House does,” he said. I “intend to consult with my relevant committee chairmen to see what their views would be.”

Congress has previously approved legislation to block TikTok from being used on government-owned computers and phones, and many states have followed suit. Restrictions for apps used by the general public, however, have faced a steeper challenge: In November, Montana had its first-in-the-nation statewide ban of the app blocked by a federal judge, who said the law had a “pervasive undertone of anti-Chinese sentiment” and “violates the Constitution in more ways than one.”

TikTok chief executive Shou Zi Chew landed in Washington on Tuesday night to meet with senators in hopes of shoring up opposition to the measure, said a person familiar with the matter who spoke on the condition of anonymity because they were not authorized to speak publicly on the issue.

The company offered to pay for some content creators and small-business owners to travel this week to Washington to drive home the app’s social and economic value. The creators, who rallied outside the Capitol on Tuesday afternoon, were not paid to advocate on the company’s behalf, a TikTok spokesperson said.

Phone lines on Capitol Hill were again blitzed with calls Tuesday from TikTok users who received a phone pop-up urging them to “help stop the shutdown.” The notification prompted users to enter their Zip code, then presented a “call now” button to connect them to their local representative.

TikTok’s opponents said the notification was an unfair push for mass political promotion that backfired; during a House Permanent Select Committee on Intelligence briefing Tuesday, Krishnamoorthi said it had “ended up convincing a number of members from being ‘lean yeses’ to ‘hard yeses.’”

Beckerman, the TikTok executive, said in his letter to the members of Congress that hearing from constituents was part of the job: “One would hope, as public servants, that you would be well acquainted with the constitutional right to petition the government for redress of grievances.”

In its annual threat assessment report, released Monday, the Office of the Director of National Intelligence said TikTok accounts run by a Chinese propaganda arm had “reportedly targeted candidates from both political parties during the U.S. midterm election cycle in 2022.”

China, the report added, “may attempt to influence the U.S. elections in 2024 at some level because of its desire to sideline critics of China and magnify U.S. societal divisions.” Avril Haines, the director of national intelligence, said in a threat briefing Tuesday that the country “cannot rule out” similar interference in 2024.

The report did not offer details of the midterm influence campaign, but Forbes reported in 2022 that TikTok accounts run by a Chinese government propaganda arm had accumulated millions of views on videos criticizing some U.S. midterm candidates.

TikTok said in a statement that the company regularly took action against “covert influence networks throughout the world,” including two Chinese networks operating more than 700 accounts.

The ODNI report did not name other social media platforms, though Meta, which runs Facebook and Instagram, and X, then called Twitter, also reported in 2022 that China-based influence campaigns had used their platforms to try to influence the midterm vote.

The bill has revealed unconventional alliances in Washington. Trump and libertarian Republicans like Paul have joined with the American Civil Liberties Union and other rights groups in calling the bill a government overstep.

Though they are probably too few to stop the House bill’s passage, some representatives on the party’s edges have signaled they will oppose the bill. Rep. Thomas Massie (R-Ky.) said in an X post on Tuesday that the bill was a “Trojan horse” for government dominance of the web. X’s billionaire owner, Elon Musk, reposted Massie’s opinion and said the “law is not just about TikTok, it is about censorship and government control!”

Trump has criticized the bill by saying it would mostly serve to make TikTok rival Meta more powerful, raising suspicions among some Republicans that he was surrendering the effort he kick-started in 2020 due to his own self-interest. A former Trump aide told The Washington Post in 2022 that Trump had dropped the issue when he learned it could hurt him in the polls.

Of the criticism of TikTok, Trump said Monday on CNBC, “You have that problem with Facebook and lots of other companies, too: I mean, they get the information … and they’ll do whatever China wants.” He added, “Frankly, there are a lot of people on TikTok that love it.”

His former vice president, Mike Pence, called the app “a 21st century technological weapon … poisoning the minds of American children” in a Fox News essay Tuesday and said Trump had been turned by lobbyists “against his own political legacy.” “Too many politicians talk a big game but crack under the pressure of wealthy donors or personal grudges — including my former running mate,” Pence wrote.

TikTok has been in negotiations for years with the federal government over a proposal, known as Project Texas, designed to help ease U.S. national security concerns. The program would store Americans’ data on servers in the United States and give the federal government veto power over decision by a board that would run TikTok’s U.S. subsidiary. Federal officials have yet to agree to the deal.

Amid the impasse, a bipartisan group of senators last March unveiled legislation known as the Restrict Act that would give the Commerce Department more authority to assess and potentially block technology deals involving companies from countries deemed to be foreign adversaries. The National Security Council endorsed the measure and called on Congress “to act quickly to send it to the President’s desk.”

The push lost steam, however, amid bipartisan blowback, including from conservative Republicans who said it’d give too much power to the executive branch and liberal Democrats who assailed it as an affront to free expression online.

Lawmakers have floated numerous other approaches, including a yet-to-be-unveiled bill from Senate Commerce Chairwoman Maria Cantwell (D-Wash.). But none of them appeared to gain broad enough support to clear either chamber of Congress until the House proposal was unveiled last week.

Sen. Mark R. Warner (D-Va.), the lead sponsor of the Restrict Act, said he still had “concerns about the constitutionality of an approach that names specific companies.” Cantwell, whose panel would probably need to sign off on the new bill, has not indicated whether her committee will consider the measure.

Some of the legislation’s supporters voiced enthusiasm for moving quickly. Sen. Eric Schmitt (R-Mo.) said Tuesday, “Once you sort of peel back the layers of the onion on the layers of the ownership and access to information and what they can do with it, I think it concerns a lot of people. It should.”

But others, like Rep. Maxwell Frost (D-Fla.), worried Congress’s rapid embrace of the legislation was a mistake. “There are a lot of things that haven’t been thought through here,” he said. “The first thing that was said was, ‘Ban TikTok. Let’s ban it.’ That was last year. Now we’ve done this jujitsu, and it’s a forced sale. It’s a forced sale set up to fail.”

Aaron Schaffer contributed to this report.

correction

An earlier version of this report incorrectly reported that Sen. Cantwell said her committee would consider the bill if it cleared the House. She in fact has not indicated how her committee would treat the bill. This version has been corrected.

This post appeared first on The Washington Post

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