Federal legislators are continuing to take aim at TikTok – the popular social media platform used by marketers, sales pros and others in the promotional products industry, as well as an estimated more than 100 million Americans.

Sen. Mark R. Warner, a Virginia Democrat, and Sen. John Thune, a South Dakota Republican, have introduced a bill into the Senate that would effectively clear the path for a federal-level ban on TikTok and other information communications and technology transactions deemed to be a national security threat.

The Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act (RESTRICT ACT) doesn’t directly call for a ban on TikTok. However, it would require the U.S. Secretary of Commerce to establish procedures to “identify, deter, disrupt, prevent, prohibit and mitigate transactions” involving information and communications technology products in which any “foreign adversary” has any interest and poses undue or unacceptable risk to national security.

Ultimately, the Commerce secretary could refer such transactions to the president, who, under the legislation, could take actions up to and including divestment.

The bill also would require the Commerce Department to coordinate with intelligence agencies to provide declassified information on how restricted transactions posed threats. 

Word From the Senators

Warner said: “Today, the threat that everyone is talking about is TikTok, and how it could enable surveillance by the Chinese Communist Party, or facilitate the spread of malign influence campaigns in the U.S. Before TikTok, however, it was Huawei and ZTE, which threatened our nation’s telecommunications networks…We need a comprehensive, risk-based approach that proactively tackles sources of potentially dangerous technology before they gain a foothold in America.”

NEW: Whac-A-Mole is for kids. It’s not a national security strategy.

For years, we’ve lacked a comprehensive approach to identifying and addressing foreign tech threats. Today, I’m introducing a cohesive, bipartisan strategy to change that. pic.twitter.com/XVu5VQwzN3

— Mark Warner (@MarkWarner) March 7, 2023

Said Thune: “Our country needs a process in place to address these risks, which is why I’m pleased to work with Senator Warner to establish a holistic, methodical approach to address the threats posed by technology platforms – like TikTok – from foreign adversaries. This bipartisan legislation would take a necessary step to ensure consumers’ information and our communications technology infrastructure is secure.”

Federal Concerns

China-based ByteDance owns TikTok, a social app for creating and sharing short-form videos.

Legislators from both major parties have raised concerns that ByteDance could share TikTok’s data with China’s ruling Communist Party, and they view the app as a threat to U.S. national security. Some legislators have asserted that TikTok is used to spy on Americans and otherwise enable Beijing to have a shadow influence on American society. ByteDance has said it wouldn’t share data with China’s government or be influenced by Beijing, and TikTok has proposed increased transparency.

Critics of a TikTok ban, which include the American Civil Liberties Union, say prohibiting the platform is an impingement on free speech.

A TikTok ban would “limit Americans’ political discussion, artistic expression, free exchange of ideas — and even prevent people from posting cute animal videos and memes,” the ACLU said in a letter to lawmakers.

The Legislative Landscape

The legislation from Warner/Thune was introduced a little more than a week after the U.S. House Foreign Affairs Committee voted to send a separate bill – H.R. 1153 – to the full House of Representatives for consideration. That bill, proposed by Texas Republican Rep. Mike McCaul, also wouldn’t specifically ban TikTok, but it would effectively empower President Joe Biden to do so.

McCaul’s H.R. 1153 would make it so that the so-called Berman amendments exemptions that have guarded TikTok from a ban to date would no longer apply to companies that transfer Americans’ personal data to entities or people based in, or controlled by, China.

#Marketers that use #TikTok take note: https://t.co/TaJsOlALzM

— Chris Ruvo (@ChrisR_ASI) March 1, 2023

“Unlike Warner’s bill, the House legislation, known as the DATA Act, has no Democratic co-sponsors, and it advanced out of committee along party lines, complicating its prospects in the Democratic-majority Senate,” CNBC reported.

Democrats and Republicans have signed as co-sponsors on the RESTRICT Act.

Jake Sullivan, White House national security adviser, spoke in support of the Warner/Thune bill, urging Congress to “act quickly to send the bill to the president’s desk…as it would strengthen our ability to address discrete risks posed by individual transactions, and systemic risks posed by certain classes of transactions involving countries of concern in sensitive technology sectors.”

Still, the Biden administration wouldn’t say if the president would ban TikTok if the RESTRICT Act becomes law. President Biden has said he’s “not sure” if the U.S. should ban/restrict TikTok. The administration has previously indicated that it’s awaiting recommendations from the Committee on Foreign Investment in the U.S.

In speaking about TikTok with reporters last week, White House Press Secretary Karine Jean-Pierre said the White House has “concerns with this particular app…We want to make sure that the digital products and services Americans use every day are safe and secure.”

Highlighting possible partisan issues surrounding a TikTok ban, The Wall Street Journal reported on Mar. 13 that “a major unspoken problem for the president, according to political strategists, is that trying to force an outright ban on TikTok – as many Republicans are seeking – would sacrifice what is emerging as a vital campaign asset for Democrats with the 2024 election season looming.”