A number of former US national security officials say there are “grave national security threats posed by Chinese control of TikTok”. That warning is contained in a new filing with the court that is considering legal challenges to America’s sell-or-be-banned law that targets TikTok and its China-based owner ByteDance.
“What makes TikTok unique from other social media applications”, the former security chiefs state, “is that the Chinese Communist Party has direct access” to a “vast dataset” relating to US users of the short form video app.
Chinese national intelligence law, they claim, obliges ByteDance and TikTok “to assist with intelligence gathering”. Which means, “ByteDance must provide China’s intelligence agencies with direct access to the extensive personal data TikTok collects on its more than 170 million American users”.
Nineteen former officials have endorsed the court filing, including former National Cyber Director Chris Inglis, former National Counterintelligence Executive Michelle Van Cleave, former Signals Intelligence Director Teresa H Shea, and former Attorney Generals Michael B Mukasey and Jeff Sessions.
Between them they have “served at the highest levels of government, in national security, intelligence and foreign policy roles” under different Presidents from different political parties.
Their concerns go beyond user data. “It is well-documented that the CCP also has significant internal influence over TikTok”, they allege. “The CCP requires certain companies, like TikTok, to host an internal party committee, which has the 'sole function' of ensuring ‘compliance with CCP orthodoxy’”.
The former national security officials join Congress members, state attorneys general, human rights organisations and free speech experts in supporting the sell-or-be-banned law which says that ByteDance must sell TikTok or the app will be banned next January.
The Congress members add that the law they passed earlier this year provides an “achievable path” for TikTok and ByteDance to avoid a ban, ie to sell the app to another company. The state attorneys general argue that the law is a “valid exercise of Congress’s power over foreign affairs and national security”.
The human rights organisations call it a “triumph for human rights and those that advocate for them”. And one free speech expert from Michigan State University College insists that TikTok’s claim that the law breaches First Amendment free speech protections just isn't true.
All these points are made in submissions to the court that is considering TikTok’s legal challenge to the sell-or-be-banned law. The deadline for third parties making submissions - known as amicus briefs - was on Friday.
A week earlier the US government’s Department Of Justice made its own submission setting out arguments in favour of the law. Then last week it filed new legal proceedings against TikTok, accusing the company of “widespread” violations of children’s privacy law.
The sell-or-be-banned law was motivated by widespread concerns in the political community that the Chinese government has access to US TikTok user-data via ByteDance.
For its part, TikTok has consistently denied there are any data security concerns and argues that neither the US government nor Congress have presented credible evidence to back up those concerns. It also insists that a sale of TikTok within the US is not viable and that a ban breaches free speech protections under the First Amendment.
ByteDance has also criticised the speed with which the sell-or-be-banned law was passed by Congress. Although TikTok data security concerns have been debated for years in Washington, not least when former US President Donald Trump tried to ban the app, the actual act that contains the sell-or-be-banned law - the Protecting Americans From Foreign Adversary Controlled Applications Act, aka the Divestiture Act - was passed by both the House and Senate within seven weeks of it first being introduced.
However, the submission backed by 57 members of Congress states, “The Divestiture Act is backed by extensive legislative fact-finding demonstrating that foreign adversary nations seek to exploit applications including social media to target, surveil and conduct other covert activities - including transnational repression - against the American people”.
Free speech arguments are fundamental to TikTok and ByteDance’s legal challenge. Among the experts hitting back at those arguments in the amicus briefs is Adam Candeub, a professor of law at Michigan State University.
Echoing statements made by the DoJ in its submission, he points out that “the First Amendment does not protect foreign entities abroad, including the ByteDance entities that control and direct the TikTok app”. He then adds that the Divestiture Act “does not implicate the First Amendment because it regulates conduct - ownership by a foreign adversary - not expression”.
In their submission, the state attorneys general say that if free speech arguments can used to stop Congress from dealing with its concerns about TikTok data, then “Congress would be powerless to ban a cancer-causing radio merely because that radio also transmitted protected speech, or to ban sports-betting apps merely because those apps also shared informative videos teaching their users the intricacies of sports gambling”.
“The targeted harms - preventing cancer, illegal gambling or data-gathering by a hostile foreign state - are inherently nonexpressive”, they add. “Overlaying them with expressive conduct - radio communications or instructive videos - does not change that calculus”.
The human rights groups backing an amicus brief include The Committee For Freedom In Hong Kong, the International Campaign For Tibet and the Campaign For Uyghurs. They present a different perspective to many of the other groups, beginning by setting out the human rights concerns with China and the CCP.
“It is well-documented that the CCP leverages technology to conduct its espionage and surveillance campaigns”, they write. “Whether it is Huawei, DJI or TikTok, their goal is the same: to threaten the safety of, and silence free expression by, anyone – in [China] or around the world – who speaks out against the CCP’s policies and human rights abuses”.
“TikTok, under its current corporate structure, is a clear instrument for the CCP to harass, target, and silence activists and dissidents in the US, [China] and around the world”, they add, and the Divestiture Act - therefore - is “a necessary step toward protecting the physical and digital safety of those who seek to illuminate the atrocities occurring in the People's Republic Of China”.
TikTok’s legal challenge of the sell-or-be-banned law will get to trial next month. Meanwhile, its lawyers now have more work to contend with after the DoJ filed its lawsuit last week accusing the company of violating children’s privacy law by collecting a “wide variety” of personal information from children under thirteen without parental consent.
“The department is deeply concerned that TikTok has continued to collect and retain children's personal information despite a court order barring such conduct”, acting Associate Attorney General Benjamin C Mizer said in a statement. “With this action, the department seeks to ensure that TikTok honours its obligation to protect children’s privacy rights and parents’ efforts to protect their children”.