U.S. Missed Chance to Enhance TikTok Security

In a bid to secure its future, TikTok made an unprecedented proposal to the U.S. government in 2022.

The popular video-sharing platform, under Chinese ownership, offered to allow federal authorities to select its U.S. board of directors, grant them veto authority over new hires, and engage an American firm contracted with the Defense Department to oversee its source code. Additionally, TikTok proposed providing officials with a kill switch to deactivate the app within the United States if deemed necessary to address concerns about its security.

Despite TikTok's proposal, the Biden administration opted for a different approach. Officials chose not to accept the offer, foregoing potential influence over the immensely popular app. Instead, they pursued a more direct course of action: enacting a forced-sale law recently signed by President Biden, which holds the potential to result in a nationwide ban of TikTok.

The government has not provided a public explanation for its rejection of TikTok's proposal, choosing instead to pursue a potentially lengthy constitutional dispute that many anticipate will ultimately be decided by the Supreme Court. Since federal officials initiated an investigation into TikTok in 2019, the app's user base has surged, surpassing 170 million U.S. accounts, even including the Biden reelection campaign among its users.

But the extent to which the United States evaluated or disregarded TikTok’s proposal, known as Project Texas, is likely to be a core point of dispute in court, where TikTok and its owner, ByteDance, are challenging the sale-or-ban law as an “unconstitutional assertion of power.”

The episode raises questions over whether the government, when presented with a way to address its concerns, chose instead to back an effort that would see the company sold to an American buyer, even though some of the issues officials have warned about — the opaque influence of its recommendation algorithm, the privacy of user data — probably would still be unresolved under new ownership.

The government essentially threw up its hands at the possibility of any kind of regulation or cybersecurity measure,” said Anupam Chander, a Georgetown University law professor who researches international tech policy.

“TikTok proposed this incredible array of protections, but none of it mattered,” he added. “In the government’s thinking, it wasn’t: ‘Can this app be protected?’ It was: ‘There’s a Chinese owner.’ That became the death knell. The government had a complete absence of faith in [its] ability to regulate technology platforms, because there might be some vulnerability that might exist somewhere down the line.”

A senior Biden administration official said in a statement that the administration “determined more than a year ago that the solution proposed by the parties at the time would be insufficient to address the serious national security risks presented. While we have consistently engaged with the company about our concerns and potential solutions, it became clear that divestment from its foreign ownership was and remains necessary.” The official declined to specify what made the plan insufficient.

Anupam Chander, a law professor at Georgetown University specializing in international tech policy, remarked that the government seemed to have given up on the possibility of implementing any form of regulation or cybersecurity measures. Despite TikTok's comprehensive proposal, it appeared that the government's primary concern was the app's Chinese ownership, which ultimately led to its rejection. Chander highlighted a lack of confidence in the government's ability to effectively regulate technology platforms due to potential vulnerabilities.

A senior official from the Biden administration stated that over a year ago, they concluded that the proposed solution by the parties involved would not adequately address the significant national security risks posed by TikTok. While engaging with the company about their concerns and potential solutions, it was evident that divesting from its foreign ownership was deemed necessary. However, the official declined to elaborate on what aspects of the plan were deemed insufficient.

In their legal challenge, TikTok and ByteDance argue the sale-or-ban law violates the First Amendment by suppressing a platform Americans use for information and self-expression. Courts traditionally evaluate such speech disputes on whether the government is pursuing a compelling state interest through the least-restrictive means possible.

The government, some legal experts said, probably will be asked to explain why Project Texas wasn’t a reasonable solution for its national security goals. The Biden administration hasn’t publicly detailed why the proposal was inadequate, saying only that the possibility of future Chinese data-gathering or propaganda merited an aggressive response.

In a statement, a Justice Department spokesperson said the law “addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations. We look forward to defending the legislation in court.”