Doron Goldstein discusses proposed federal TikTok ban with Law360

14 March 2024 | Applicable law: US | 3 minute read

As federal lawmakers attempt to take a hardline stance on TikTok, Doron Goldstein provides his own thoughts on the ban in the Law360 article "1st Amendment Only The Start Of Woes Facing TikTok Ban."

"This is being framed as a national security question, but if that's the case, then its focus should be broader than TikTok," Doron told Law360. "Passing a federal framework that addresses data transfer issues would help get us there, but it's unlikely that picking on TikTok is going to solve anything," he continued.

The H.R. 7521, which only debuted in the U.S. House of Representatives on March 5, would require ByteDance Ltd., a Chinese internet technology company headquartered in Beijing, to sell TikTok or face a nationwide ban. The "Protecting Americans from Foreign Adversary Controlled Applications Act" has already received support in the House Commerce Committee and President Joe Biden, who indicated he would sign the bill if it reaches him. Though it saw a popular reception with some legislators, others are raising the alarm on the implications of free speech restrictions and potentially increasing tensions with China. 

As legislators work to pass bills barring data brokers from selling Americans' personal information to adversarial nations such as China and Russia, others are cautious about naming a particular company in a bill. As it stands, if the current proposal or a similar one were to be signed into law, "there's a strong likelihood that it would be subject to legal challenges and a strong likelihood that those challenges would be successful," Doron told Law360. "The government arguably controlling speech and communication is exactly the type of issue that is a First Amendment problem," he said. "If the concern is what data transfers are being allowed, then there needs to be a data transfer law or data localization requirement, and that could survive scrutiny depending on how it's structured. But picking on an individual company without that legal framework poses a significant problem."

TikTok has pushed back against the suggested ban, citing millions of Americans who use the platform for business and digital creation. While lawmakers continue to threaten TikTok's presence in the US by pressuring ByteDance to sell, TikTok has indicated that a sale would be unlikely due to the work the company has already done to securely block off US data along with antitrust concerns given the only companies with interest or funds to buy TikTok are existing social media platforms. As the federal government seeks to pass legislation surrounding data privacy in the name of national security, it remains to be seen what a ban on TikTok could mean for other foreign-owned social media platforms and applications going forward. However, it is clear that US legislators are keen to address data privacy as evidenced by the range of bills gaining traction in the House.

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