Should TikTok be banned in the US?
Clearly, TikTok’s executives would have you believe that there is no risk when using TikTok. Is there a national security risk, though? Yes. Let’s explore.
Bytedance
TikTok is presently owned by Bytedance. Bytedance’s company headquarters are located at Room 10A Building 2 No. 48 Zhichun Road, Haidian District, Beijing China. We also need to understand that businesses operating in Beijing China operate under Chinese law (such that it is). What that means for TikTok is that in order for this company to operate within China, it must always abide by China’s rules and regulations including spurious Chinese government requirements and mandates both existing and instantaneously required by the government.
For example, if Xi Jinping decides that Bytedance must turn over all information it has acquired to the Chinese government, Bytedance must comply or face the possibility of China pulling its licenses to operate its business in mainland China.
On the one hand, you have the TikTok CEO Shou Chew claiming that TikTok’s user data is safe. On the other hand, you have China’s government which can instantly require (i.e., force) Bytedance (or any Chinese based company) to hand over its data or face the loss of operating a business in China. Because China is a communist government, whatever China wants, China gets. Meaning, TikTok can absolutely make no assurances that user data is truly safe while Bytedance remains under China’s overreaching communist government authority. The rule of law only applies in China when the Chinese government WANTS it to apply, a key takeaway here. Internationally, China’s government does whatever it wants under the guise of appearing to support the rule of law.
Oracle Cloud
TikTok’s CEO has assured congress that it could move its data to within the Oracle cloud environment. While moving TikTok’s data storage to a United States owned business might sound great on paper, in reality it means nothing. Data stored in the US can STILL be easily exported, backed up, copied and recovered to computer equipment which resides in China. In fact, it would be entirely surprising if TikTok didn’t keep live backup copies of all user data somewhere on Chinese servers.
In other words, the CEO’s statements about using data storage on US shores as a “protection scheme” rings hollow. It’s far too easy to create copies of data and put it anywhere you want. It’s also guaranteed that if the Chinese government were to mandate that Bytedance turn over all relevant data to the Chinese government, TikTok would be forced to comply with those orders or face China’s government retaliation. In this case, not only can Bytedance not protect user data, they would have to appear completely willing to hand it over to the government instantly. Why? Because of Bytedance’s allegiance to China and not the United States… and because if TikTok doesn’t, China will close them down.
Allegiance
This word denotes a whole lot of things all at once. However, the most important thing this word signifies is what happens if China requests something from Bytedance and they refuse? A US based company protects all data of its users under the laws of the United States. If there were a subpoena by law enforcement issued for that data, a US based company would either have to comply with the subpoena or file an objection to quash the subpoena under specific grounds. In China, such avenues of refusal don’t necessarily work.
Because the United States is, at least thus far, based on the rule of law, the government would be required to allow an objection to funnel through the court processes before requiring the company to turn over whatever data is required by that subpoena. Even then, it would only be required if the court upheld the subpoena instead of siding with the appeal.
On the flip side, because China is a communist operated government, businesses operate under the whims of the Chinese government, which is not always based on the rule of law. While China does put up appearances suggesting that rule of law exists, the realities within China don’t always match that “rule of law” narrative. Meaning, China’s rule of law facade is just that, a facade.
For this reason, Bytedance’s allegiance must remain with China and never with the United States. The only reason Bytedance can operate within the US borders is because the United States, at present, allows it. But, that may be changing…
Is My Data Safe with TikTok?
The short answer is, no. Why? Because Bytedance’s allegiance remains solely with China because that’s where its business is incorporated. Regardless of what the executives of Bytedance may claim, that Chinese allegiance means that if Xi Jingping requires Bytedance to turn over all user data to China’s government about TikTok users, Bytedance must comply… and with no questions asked.
It doesn’t work like this if Bytedance were a company owned and operated within the United States. Rule of law actually matters in the United States where in China it only appears to matter, but doesn’t actually matter when the Chinese government wants what it wants.
What’s Wrong with China Knowing About Me?
If you don’t live in China or plan to visit, it might not matter that much. However, if you were ever to visit China, what you post on TikTok might be considered a legal offense in China and could see you legally apprehended, detained and/or jailed.
In other words, if you intend to post on TikTok and you have said or done anything that China takes offense to, you could become wanted in China. That’s a fairly extreme outcome, but China takes offense easily to many things and it takes those offenses seriously… so why poke that bull if you don’t have to?
Worse, because China is all about the money, having critical data from your phone device could allow would-be Chinese hackers to infiltrate your device, steal your identity and steal your money.
Should I use TikTok? — Should I allow my kids to use TikTok?
If you value your family’s privacy, no. YouTube and Facebook both offer similar enough video sharing features to more than make up for TikTok’s functionality. Both YouTube and Facebook are US based companies not under the Chinese government’s thumb. Why risk potentially losing your (or your child’s) personal data to China needlessly when you don’t have to?
This author definitely recommends avoiding the use of TikTok entirely. There’s really no reason to risk losing your family’s personal data to China over the use of a silly video sharing platform… a platform that already exists on YouTube and via other US operated companies.
Creators
The argument on not banning TikTok seems to stem mainly from both the TikTok executives (naturally) and from TikTok’s creators. Ignoring TikTok’s weak executive arguments for the moment, let’s focus on TikTok creators. While I agree that many creators may not have understood the ramifications of investing their creative efforts and skills into a platform of questionable origin, unfortunately they have. What that means is that a ban on TikTok in the US means that these creators must lose the audiences they have worked to gain. I get it, but that’s not reason enough.
For creators, this is a problem. However, it’s relatively simple for creators to ask their audience to move with them to a new platform. If a creator’s audience is truly committed to that creator’s content, most (if not all) of that audience should will be willing to move to any other platform that that creator may choose to use. A simple video which requests fans to sign up for and move to a new platform shouldn’t be a big deal.
If you’re a TikTok creator considering that you may lose your ability to create on the TikTok platform, you should definitely consider a movement plan to another platform. Whether that be YouTube, Instagram, Snapchat or any other short video sharing platform, moving away from TikTok is the key. You shouldn’t remain complacent and simply assume a ban won’t happen. You should take action now and, yes, complain if you like, but you should also prepare to move your fans and content to another platform. Don’t wait, take action now!
Creator arguments about engagement or loss of revenue or any other such arguments are simply not strong enough arguments to sway regulators away from the above China data sharing problem. There are too many other platforms owned and operated by US companies for such creator arguments to hold any weight at all. Simply, they don’t. This is why creators need to be proactive and take steps to plan to move both your fanbase and content to another platform now. Don’t sit on your hands and think it won’t happen. Plan ahead.
TikTok Audience versus TikTok CEO
While creators make up a relatively small portion of TikTok users, they are the ones responsible for bringing in the viewers. Still, having an audience is not an argument to keep TikTok from being banned. It’s not whether TikTok offers a valuable video sharing service, it’s that a Chinese based company manages TikTok’s data and always remains at the whims of China.
The CEO has stated that TikTok is beholden to no country, but that’s simply not a true statement. That statement cannot possibly be true. Every company must go into business under some country. Every country has laws and requirements for businesses to remain in business within that country. Bytedance incorporated its business within China. That means that Bytedance is beholden to China’s laws and regulations, no matter how, when or why they might appear. Because China’s government only appears to abide by its written laws and regulations, it only does so when it is convenient to the Chinese government. When it’s not convenient, new laws instantly come into being to cover whatever “thing” China is trying to make happen.
Instant laws don’t occur in the United States. It takes time, effort and lots of congressional or state legislator bickering and months of wrangling before a new law can come to exist. Most new laws require ballot measures to be voted on by the population, something that China doesn’t offer to its citizens.
What this all means is that TikTok’s CEO can say whatever he wants, but the realities of the way China operates remains. If Mr. Chew is so willing to lie about Bytedance’s allegiance to China, what else is Mr. Chew lying about? Lying to congressional members really doesn’t say great things about Bytedance or TikTok.
Should TikTok be banned in the United States?
We’ve come full circle from the beginning of this article. After all the above arguments are considered, I’d say that it is most definitely worth banning TikTok (and any other Chinese based apps) from the app stores. This situation shouldn’t be limited to TikTok. TikTok is simply so visible because it’s now used by more people than, in some cases, YouTube. The shear audience sizes alone for some TikTok creators means ever more and more people are signing up to use the service. Many of these new users are children (aged 17 and younger).
Children are unable to comprehend what sharing of personal data to China really means. They just see silly videos, but have no idea what information TikTok may be collecting while these children use TikTok.
Additionally, because Bytedance is a Chinese operated company, it doesn’t have to abide by federal regulations like COPPA. TikTok might choose to voluntarily comply (or simply put up a facade of doing so) as a measure of apparent goodwill. However internally, it may not at all comply with COPPA because it doesn’t have to. Because the TikTok company exists and operates outside of the US’s borders, United States federal laws don’t apply and cannot be enforced upon TikTok. This aspect right here is the single biggest elephant in the room and the single biggest reason why TikTok should be banned.
Without the federal regulations to help protect US citizens from nefarious or malicious use of data collected, Bytedance can literally do almost anything to non-Chinese citizens without any legal ramifications by the United States. Even if the United States were to try and bring suit, China wouldn’t allow it. This situation alone is why TikTok (and other Chinese operated services) should not be allowed to operate within the United States. TikTok is literally one Chinese company among many taking advantage of its Chinese locale to avoid being held accountable to United States laws.
The United States has every right to protect its citizens from unlawful interference by other countries. TikTok is one among many companies where this reality now exists, not just companies located in China. The United States legislators need to take a step back and really think long and hard about (the lack of) legislation around companies operating in countries which are mostly unfriendly to the United States.
China only tolerates the United States at this point because of the buying power the United States offers. Other than buying power, that’s where China’s civility with the US ends. China (and a Chinese operated company) doesn’t care how many people in the United States die, get maimed or get injured as a result of products made in China. The same can be said of services like TikTok. Anyone who legitimately believes that the TikTok CEO legitimately cares about United States citizens, other than for their wallets and the almighty dollar, is clearly deluded.
Yes, TikTok should be banned, along with every other app-based service operated out of unfriendly territories around the globe.
First Amendment?
Some have claimed that the First Amendment will be violated by banning TikTok. Let’s definitively state here and now that there is no First Amendment problem at play. Because TikTok is a Chinese company wholly operating out of China, Constitutional laws don’t apply to TikTok. The executives who operate TikTok aren’t United States citizens.
Even though there are United States users using the service as creators and viewers, the service itself is not bound by the United States Constitution. In effect, by you as a user choosing to invest your time and effort into putting your videos onto a wholly owned Chinese entity, you’ve effectively forfeited your right to First Amendment protections.
While some First Amendment advocates might disagree with the above stance, one thing is certain, the United States Constitution does not apply to non-US citizens… which would include any and all executives and staff who were hired and operate out of Bejing China. While it is possible that Bytedance has hired some United States citizens to help operate its service globally, that doesn’t wholly, suddenly or automatically then make Bytedance as a company bound by the United States Constitution.
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SOPA: Is it tortious interference?
SOPA and PIPA take aim at ‘online piracy’. Of course, the term ‘online piracy’ is defined as deep and wide as the Grand Canyon. How do you define ‘online piracy’? Well, clearly, taking copyrighted works without the owner’s permission is considered copyright infringement. We already have laws on the books that protect copyright holders. For years, these legal mechanisms have worked. Basically, the copyright owner identifies the alleged infringer and takes them to court, then proves the case (in front of a judge) that someone infringed. So why isn’t this enough? What changed? The entertainment industry wants more power.
For Hollywood and the music industry, the current legal system is not enough. Now they want to interfere with businesses’ abilities to continue to do business. Both the MPAA and the RIAA have tried various mechanisms to gain control over stopping piracy without involving the courts. The entertainment industry wants direct unfettered access into businesses to force them to stop ‘enabling’ the alleged pirates. No due process, no courts, no guilt or innocence determination in a court of law. No, all of this they want outside of the courts. They want to tell someone to stop doing something without any due diligence or fiduciary responsibility. “Oops, we made a mistake? My Bad. Tee hee.”
Legalized Tortious Interference
With SOPA, this goes one step further and effectively becomes legalized tortious interference. So what is tortious interference? Simply put, it’s when a random third party steps into a two party contract and causes one party in the contract to breach the contract for the other party. That is, the third party prevents a party in a contract from being able to fulfill their contractual obligations. How does SOPA do this? It does this by forcing banks or other financial institutions to stop transactions to one of their customers on a third party say alone. It does this by asking DNS registrars to disable domain names and prevent web sites from functioning without any court determination of guilt or innocence, again, on say alone.
Guilty until proven innocent
Clearly, our legal system and government system is broken. More than that, our legal system is taking a huge step backwards. Back to a time before the US adopted ‘Innocent until proven guilty’. Clearly, this mantra means little in the legal system today. With an adoption of SOPA or PIPA, we would always be presumed guilty until proven innocent. Those in the entertainment industry are severely undermining our legal infrastructure and, if you also happen to be a conspiracy theorist, systematically dismantling it with the help of of the US Congress no less.
Internet Piracy and the end of independent artists
The music and movie industries have yet to prove substantial losses regarding piracy, yet they continue on this legal tirade that attempts to systematically destroy our current legislative system with such overreaching laws as SOPA and PIPA. So overreaching, in fact, that these acts need no court interaction to remove alleged infringing sites from the internet without any court due process or a trial by peers. They offer no way to prove innocence easily or to refute any claims alleged. Simply put, the entertainment industries want to control businesses at a fundamental level outside of the courts. They simply want to call up GoDaddy and say, “You have a site that is infringing, take it down” and GoDaddy must comply with no questions asked. This is the entertainment industry’s ultimate goal:
- No legal system involvement
- Forced compliance
- No due process
- No refuting copyright claims allowed
- Instant removal
Clearly, we don’t want to be here. No single private industry should have that level of legislated control over any individual or business. Even law enforcement shouldn’t have that level of control over individuals or businesses without due process. The entertainment industry, let alone law enforcement should follow due process just like any other individual or business is required to do. If one industry is given that level of government sanctioned legal control, this country will fall and it will fall hard.
If SOPA or PIPA pass, we will move into a new dark age. An age without new books, new music or new creative works of any kind (other than those that the music and movie industries want us to see). The age of independent creative works will end. The age of creative new web sites will end. Eventually, even Hollywood and the music industry will end because of the negative backlash over the lack of substantial creative content… ultimately leaving no creative works of any kind. Independent creative people will stop creating because SOPA will have been so completely abused people won’t set up new sites for fear of a SOPA backlash. Existing businesses will stop doing business with anyone involved in creative works (and let’s hope that includes Hollywood).
Censorship
Part of the SOPA and the PIPA drafts suggest that ISPs adhere to a browsing blacklist. That is, ISPs would be required to prevent access to sites that are ‘known pirate’ sites. This is allegedly to target non-US sites, but it could just as easily target sites within the US. ISPs are and should be treated as a common carrier. That is, what is carried over their lines is not their responsibility either in or out. Requiring ISPs to become filters for the government and the entertainment industries is, again, overreaching. There is no need for this. I do understand what the MPAA and RIAA are both trying to do. But, instead of using censorship to block sites, they should simply go after the site directly. Do not censor everyone else’s view of the Internet because of an suspected problem. Again, this is simply like throwing the baby out with the bathwater. No, just throw the bathwater out .. meaning, if a site becomes a problem, go after that specific site. Don’t require ISPs to block access to the site for every subscriber in the US. Censorship is not an acceptable problem resolution in any form here in the US. That representatives and senators are even considering this is amazingly chilling.
Chilling effects
Legislation like SOPA is chilling. It should not ever be passed. This legislation is the wrong legislation at the wrong time and for the wrong industry. No one industry should wield that level of unregulated power towards any other industry. The DMCA attempted that level of control but failed to work. SOPA is the next step to come out of the DMCA, but it is far too overreaching. Worse, this type of legislation needs to end before the United States as we know it ceases to exist. With legislation like SOPA, the US is leading itself to its own demise. We are, in effect, legislating the US out of existence and SOPA is just one step towards that end.
Consider who the major players are in Hollywood and in the music industry. Most of the players are not even US companies. Again, a conspiracy theorist could have a field day with all of this.
I’m sorry to say that entertainment is the least of this country’s worries, let alone the entertainment industry. They can fend for themselves. Boo Hoo, the movie and music industry might have lost 50 cents because someone allegedly downloaded a song or watched a movie online. Show us the numbers! The entertainment industry already has laws and the court system to back them up with both patent and copyright infringement claims. There is no need for any further legislation on this front. The US needs to focus its efforts on the economy and keeping this country afloat. The US is not responsible for propping up industries that can’t even properly manage themselves. Let’s let Hollywood and big music figure out how to manage themselves using the existing laws.
More then that, let’s make these industries first prove substantial losses to piracy before we give them any level of power, let alone this level. Just say ‘No’ to SOPA and PIPA. Write your congressional representatives and ask them to not support this legislation.
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