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Byte-Dance was told to sell TikTok or face a ban. There are legal complications

AYESHA RASCOE, HOST:

The Chinese company that owns TikTok is getting an ultimatum. ByteDance has nine months to sell the app to a non-Chinese parent company, or TikTok will be blocked in the U.S. To talk about what the legal complications of such an order are, we bring in Timothy Edgar. He's a cybersecurity expert and lecturer of law at Harvard Law School. Welcome to the show.

TIMOTHY EDGAR: Great to be here.

RASCOE: So this issue may seem new to some of us, but I guess the possibility of a TikTok ban really extends all the way back to the Cold War, doesn't it?

EDGAR: That's right. The U.S. sometimes tried to ban magazines and books and other materials from countries that we had poor relations with. We did that with Cuba, for example. And back in those days, the civil liberties organizations fought those bans and said that was a violation of Americans' First Amendment rights. And so that led to something called the Berman Amendment, which basically exempted those kinds of materials from the kinds of bans that we had during the Cold War.

RASCOE: OK, so that means that the civil liberties groups were successful in arguing that, you know, kind of newspapers, magazines from these other countries should be exempted.

EDGAR: They were successful in Congress. You know, the main law, which is called the International Economic Emergency Powers Act, which allows and supports the U.S. government's ability to put sanctions on foreign countries - informational materials and communications were exempted from that law. And that's why when President Trump tried to ban TikTok all the way back in 2020, the courts just struck it down and said, well, you can't do that under this law because Congress has exempted informational materials, and that covers the internet.

RASCOE: OK, so what did the government have to do this time legally to pass the bill that may see TikTok get banned?

EDGAR: Well, because it was an exemption in a law, Congress can pass a new law, and that's what they did with the TikTok ban.

RASCOE: Does any of this fall under the purview of the Committee on Foreign Investment in the U.S., or CFIUS?

EDGAR: So CFIUS would be a good process that would be short of a ban. You know, they could look at the app. They could decide whether or not there are other things that the company could do. But I think Congress has basically gone and kind of short-circuited that process and said, no, we're not going to have the Committee on Foreign Investment look at this. We're not going to have other processes look at it. We're just going to make a decision as the Congress that this app needs to be sold in a short time, or it will be banned.

RASCOE: And so why is it that we'll still be able to access apps like the clothing company Shein in in the U.S. - that's also Chinese owned - Temu, which sells all sorts of stuff - clothing and housing goods? These apps are also Chinese owned and are on a lot of American phones.

EDGAR: Yes, well, that's a great question for members of Congress who voted for this or for President Biden because you're right. It's highly selective. And one of the reasons why I think, regardless of the constitutional issues, that this is bad policy is the United States has been in a privileged position when it comes to Big Tech and when it comes to the internet. Our companies have dominated the American market, but also the global market. And TikTok and these other apps and websites that you mentioned that are Chinese - I mean, this is really only in the last few years that we've seen another big power come along, in this case, China, and they've actually penetrated the American market. And so we've started to realize, you know, we may not be fully in control of what goes on with apps and websites, and we don't like it very much. When other countries, you know, kind of made those same complaints to us about Facebook and Instagram and Twitter, we kind of said, no, no, no, no, we think that we should be trusted to regulate our tech companies. And now we look at other countries, and we're like, well, we're not sure we trust these other countries.

RASCOE: So what does this say about, you know, the U.S. as a country and about freedom of information or access to information in the U.S.?

EDGAR: I don't think it says anything very good because the U.S. has stood, for more than two decades - maybe three decades - for an internet that is open, free and interoperable. Internet freedom has been a big part of our human rights and foreign policies. And now for the first time, we're banning a major social media app that's popular around the world. You know, that's really crossing a Rubicon, and it's an important moment, and it's going to come back potentially to haunt us.

RASCOE: What do you say to those people who will say that social media is at a point where we really don't understand the full ramifications of it? It has such an impact on, you know, our minds, on the minds of our children, and that it may require more extreme measures to deal with some of these apps like TikTok.

EDGAR: I couldn't agree more. I think that there's a lot of potential harms out there that come from social media and massive privacy issues with the whole business model of social media, sometimes called surveillance capitalism. So those are issues that I'm glad that we're addressing. I just don't think that we're addressing them in the right way. Instead, we just singled out one company and said, we don't like this company, and we're going to ban this particular app. We're going to meanwhile completely ignore all of these issues when it comes to the rest of the social media landscape.

RASCOE: That's Timothy Edgar. He is a cybersecurity expert and lecturer of law at Harvard Law School. Thank you so much for joining us.

EDGAR: It was great to be here.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.
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