Submitted by gil on

Banning or regulating TikTok has been discussed for years but now Congress may actually make a move towards it with the RESTRICT Act. Lawfare has the history of TikTok regulations and a brief summary of the RESTRICT Act and gives some useful analysis, although I wish they'd write more on it given the popular attention the bill's had so far. Vox also has a summary without a lot of analysis. I'd like to talk through my analysis of the issue and give some of my perspective.

The Story So Far

TikTok is different in important and interesting ways. Taking a step back in American history, and looking at the bigger picture of American media, we've always had media that is, at a fundamental level, at odds with the state. You don't sell newspapers with happy headlines. But at the same time, also at a fundamental level, all American media has also been aligned with the state's interests. This is a tension but not a contradiction. The state wants to propagate itself and preserve its influence. The media wants the same for itself, but it is also reliant on the state as they are part of a shared American society. Should the state's existence or influence be threatened the media's existence or influence is also threatened. Both the state and the media are, at some level, in alignment because they are both comprised of Americans sharing an American society and all the popular media we've seen so far in American history has shared this alignment.

There is also an overlooked view of the relationship of the state to its subjects, one that most often arises between the state and corporations. The primary relationship between the state its subjects is the one where the state gives direction, in the form of law, and enforces the law. It is the relationship where the state is superior to its subjects. In the case of the media, the First Amendment puts strong restrictions on the state's power in this relationship by restricting the laws the state can pass. But, in a case that is often overlooked, the relationship between the state and one of its subjects can also be one of equals. This typically looks like a business deal or any place where the state might sign a contract. In those situations the state and its subject are working together: both have their own agency, interests and goals and both are negotiating to find a mutually beneficial outcome. This is a form of soft power that the state can wield to accomplish its goals. Some people are uncomfortable with this soft power, they think the only way the state should ever exert power is in the explicit style of the first kind of relationship. But this soft power is inevitable and those who would wish it gone are naive. It arises because the the state and its subjects are not one and the same, a distinction that comes from liberalism itself and does not exist in authoritarian states. The state, enforcing a liberal order, has distinguished itself from its subjects, giving them agency, and this separation creates the opportunity for soft power when they happen to interact as equals.

The Issue At Hand

Those are some useful ideas but also abstract ones. They could apply to TikTok but they also apply to any number of apps, mass media platforms, or specialist products like SolarWinds. However, the topic at hand is much more concrete: how could TikTok be used to further the objectives of the Chinese state? Let's walk through some examples of the levers available to them through TikTok.

First, the most extreme and most unlikely thing China could do with TikTok is to push zero days to everyone's phones. This is unlikely because it is an act of war, and if it did ever happen we'd have more important things to worry about. Cybersecurity is still important, we should promote security practices in the personal, private and public spheres to protect us from realistic cybersecurity threats. But even in the context of a hot war a digital Pearl Harbor is not necessarily a great idea. It is most beneficial for China if the general population's view is "what did China ever do to us?" and not "those bastards hacked everyone's phones and screwed everything up!" This is a case where soft power can be more useful than hard power, an important idea I will come back to later.

Next is the collection of user data. This includes the data mediated by the phone's security model (the permissions you've granted the app) but also your own interactions with the app. For TikTok, that would include your interests (based on the videos you've watched and interacted with) and any social graph you've built in the app (any phone contacts you've imported, any friends you've added on the platform, any DMs you've sent to friends). That is a lot of very personal information! I am sympathetic to people who want to take a broad brush across the industry to reduce the total amount of information any app is allowed to collect on a user or reduce the legal uses of that information. If the current baseline of restrictions is unacceptable, let's raise that baseline.

Even if we find the baseline is acceptable the consumers of that data are different actors with different goals. The technical and legal baseline is just a baseline and it is not unreasonable to have different, more stringent standards for different users of the same data. Facebook and Google collect this data because they want to sell you ads, and TikTok does as well. But the Chinese state has its own interests and should they find TikTok or its data useful to promote them they have TikTok at their disposal to do so. TikTok is different, in ways we haven't seen before in American history, and it should not surprise us if it is subjected to a higher legal standard. We can't reason about it in the exact same way we'd reason about the American media and it is not unfair or illiberal to treat it different than the way we've treated the American media.

Getting to specifics, what is some of this soft power that China could exercise through TikTok in its role as part of the media? Remember that in 2020, a video of the execution of George Floyd went viral on the internet, reaching every part of American society. We saw race riots in several large cities, but don't overlook that we also saw civil rights protests happen basically everywhere. There were civil rights protests in Vidor, Texas - a place that is arguably still a sundown town! The simple ability to promote a strategically chosen video to the American public is a soft power. It is a tricky power to use but when the stars align it can have vast influence over the entire American society. TikTok has this soft power and unlike the media of the past it is not broadly aligned with the American state. TikTok is different.

As an aside, I am not saying anything about the specifics of the George Floyd video, but instead I think it is a familiar and modern example of the strength of the soft power of viral media. In a more concrete example, TikTok could promote English-language videos of the Chinese-picked leadership in Tibet and Tibetan Buddhism, popularizing the idea of an aligned Tibet and covering up China's colonization of Tibet. You and I may know that Tibet was invaded for geopolitical reasons but it's much easier for the public to digest videos of a happy and unified Tibet over content that explains snoozefest details like the early security objectives of the People's Republic of China. And even in this example it would only be under the scope of the RESTRICT Act if it was done to steer American decision-making on a topic.

This is also an opportunity for the state-and-media-as-equals soft power introduced earlier. Fundamentally, the First Amendment prevents the state from telling the media what to do. Coincidentally, if the colonization of Tibet results in unhappy headlines, the media might print it anyway. When the state and media interact as equals, the state now has an opportunity to bring attention to stories not covered by the media. But it could also bring forward its intelligence or analysis on what the media has or hasn't covered and the media, still acting with its own agency, can run or bury stories in its own response to what it's learned or negotiated.

The question at hand is not one of liberalism or to the degree that our government should set a baseline of liberalism for the media at large. Liberalism is what created this soft power and got us into this situation in the first place! We are instead looking at the paradox of freedom (see: the large body of philosophy on this topic) and the question is if American state should be allowed to defend itself and its interests against the narrow case of specific organizations that are fundamentally unaligned with itself. I think it does, and I hope you agree with me - liberalism doesn't uphold itself, it has to be defended. That is what the RESTRICT Act sets out to do, and I think it does an OK job at it.

What does the RESTRICT Act do?

If you really want to know, go read the bill or go read the Lawfare article. But in short, the RESTRICT Act doesn't call out TikTok by name. Instead, it seems to share the same ideological framework I've laid out here: it defines a category of organizations that are fundamentally unaligned with the American state, who at times could wield soft or hard power against the United States or its citizens, and it delegates identifying the specifics of the abuse of that power and the state's response to it to the executive branch. This sort of delegation is typical and expected under our Constitution, and this new power comes with additional protections: it can only be exercised against information technology systems and it limits that further to systems under the control of foreign adversaries. The scope is narrow enough to make it consistent with my understanding of liberalism and I'd go as far as saying it's consistent with all but the most naive conceptions of liberalism.

Once you get past the bill's scoping of covered transactions the powers delegated to the executive branch are intentionally broad. The purpose here is to give the government flexibility beyond prohibition ("you can no longer do this thing") as a response, which gives the government flexibility to scope its own exercise of power against the covered transaction. I am sympathetic to criticisms that the law could add explicit scoping of delegated powers here but understand that it may be hard to effectively draft it. The already explicitly-stated prohibition is the most impactful of powers the government could exercise and it seems like a necessary power to let this bill have any effect at all. There is little point in limiting the seemingly-broad "any other action" when prohibition is going to be a necessary part of the bill anyway. However, I admit that I could just lack imagination on a better solution.