Editor's note
On April 24, local time, U.S. President Joe Biden signed a TikTok-related bill, requiring Chinese technology company ByteDance to divest TikTok in the next 9 months to 1 year, otherwise the app will be banned from the United States.
Earlier, Aynne Kokas, director of the East Asia Center and professor of Chinese media studies at the University of Virginia, published an article in Foreign Affairs magazine on April 3 titled "What Did the TikTok Act Go Wrong?" The article argues that the TikTok bill itself has major flaws such as violating constitutional provisions, focusing too much on individuals, targeting nationality and origin, and vague definitions, and that the United States' own technology ecosystem and digital regulatory system have long-term problems such as weak supervision, profits over ethics and law.
The article points out that the United States should first do a good job of domestic digital regulation, and should not target China-linked companies as the number one target, which is quite detrimental to Sino-US relations, and at a time of tension between China and the United States, encouraging scientific and technological cooperation with China can help prevent political tensions from turning into outright hostility. "Phoenix Reference" translates this article in a special section to provide readers with food for thought.
文章来源：《Foreign Affairs》
原标题：What the TikTok Bill Gets Wrong
Compiler: Song Dongze, Zhuo Wei, Li Zhupu
The TikTok bill won't solve the problems inherent in the U.S. tech ecosystem
In fact, the so-called TikTok bill, while focused on TikTok, also bans other apps controlled by ByteDance, and also warns other existing or future apps linked to China, Iran, North Korea and Russia, which may also face fines, forced divestiture, forced termination of operations, and other penalties.
This effectively violates the Bill of Attainder Clause in the U.S. Constitution, which prohibits legislation from imposing penalties on specific individuals or groups without trial. However, the TikTok bill still puts the focus on individuals. This focus could make overall U.S. policy more specific to companies and individuals, rather than systematically reviewing the security of various types of technology products.
▎ On March 13, local time, the TikTok bill passed with an overwhelming majority of 352 votes, reflecting a rare cross-party consensus.
The protracted U.S. scrutiny of TikTok has shown that regulating individual companies can be time-consuming and unpredictable.
The part of the bill related to foreign nationals would promote discrimination based on nationality, who are an irreplaceable part of the U.S. tech workforce.
The passage of the bill will put enormous pressure on the relationships between businesses and individuals, which are themselves important to U.S. national security — and cooperation between U.S. and Chinese tech entrepreneurs can help avoid outright hostility between the two governments.
Instead of pursuing individual companies, as the TikTok bill requires, the U.S. government should align itself with allies and partners such as Europe and Japan. Some states have passed separate data privacy laws to protect the collection and use of consumer data. This will need to be done in a larger regulatory environment.
The environment should support enhanced consumer data protection, improved user education, and the adoption of new digital transaction protocols. TikTok's security challenges are just one part of a much larger, more porous, and underregulated U.S. tech ecosystem. The TikTok bill is a false solution to a real-world problem.
The U.S. government's vague rules target corporate nationalities, which risks politicization
Bipartisan agreement is rather rare. The TikTok bill has brought renewed attention to the app's far-reaching impact on the U.S. tech and information ecosystem. In particular, the Act seeks to ensure that users can regain access to their data before any bans go into effect. This sets an important precedent. Previously, in 2020, when the Committee on Foreign Investment forced the Chinese tech company Beijing Kunlun to sell Grindr, users did not receive such data protection.
▎On May 13, 2019, Kunlun Wanwei announced that the company had reached an agreement with the U.S. government to sell Grindr, the world's largest LGBTQ+ social platform, which it owned, and completed the divestiture in June 2020.
But the TikTok bill does more harm than good. All applications that are directly regulated by the governments of China, Iran, North Korea, or Russia (e.g., if they are headquartered in these countries) may be considered "controlled by a foreign adversary."
However, if more than 20% of the app is owned by companies or citizens associated with those countries, it can also be charged with this charge. The bill provides that an application may be deemed to be "directed or controlled" by a company associated with a U.S. adversary. The bill does not explain "subject to ...... the specific meaning of "directing or controlling".
This ambiguity creates a major flaw: the bill faces the challenge of defining the nationality of companies operating in the United States. ByteDance, for example, is headquartered in Beijing but is registered in the Cayman Islands. The location of a company's headquarters plays an important role in the management of a company, but it is not entirely indicative of which governments have a particular impact on its operations. Companies such as Tesla also have a wide range of operations in the Chinese market. To determine the ownership structure and financial implications of an application, regulators must first become forensic accountants.
Determining the nationality of shareholders in a public company is a huge logistical challenge, let alone a private company, let alone a 20% stake as a measure of influence. The vague provisions of the bill may apply to many U.S. companies or individuals operating in China, who are also required to comply with Chinese laws, regulations, and policy directives in order to maintain their operations.
In fact, the bill also creates uncertainty for the U.S. tech industry. The short divestment period does not reflect the reality of big tech divestments and acquisitions. Beijing Kunlun had previously spent a year on a forced divestment of Grindr, a company that is much smaller than many of the companies that could be forced to divest under the bill, with fewer users and less antitrust risk.
The process is likely to become more politicized due to the lack of clarity in the process of identifying "controlled by a foreign adversary." The process of naming and shaming individual companies, rather than protecting the tech ecosystem as a whole, may only benefit lobbying firms. Companies that are concerned about their exposure will undoubtedly retain lobbyists with lucrative contracts.
The lack of digital regulation in the United States itself leads to security risks
In addition to these particular flaws, the weaknesses of the TikTok Act reveal a more fundamental challenge in the U.S. digital regulatory landscape. When it comes to regulating its digital ecosystem, most allies in the U.S. prioritize giving users rights over their data. This approach anticipates the new risks that emerging technologies can pose before they begin to operate on a large scale.
Unlike the United States, all companies operating in the European Union and Japan are required to comply with national laws regarding the use and processing of personal data in these markets. The U.S. approach to securing the digital ecosystem for individual companies, rather than the entirety, is moving the U.S. further away from consensus with allies and partners on data security.
For a long time, the U.S. only began to regulate technology after it became widespread or when problems arose. With the exception of a small number of celebrities, the U.S. regulatory system has limited protections for personal data. This approach has spurred innovation: In the fast-paced, cash-rich tech sector of the United States, the ability to access vast amounts of user data has led to world-class applications and technology platforms.
However, the U.S. government's relatively laissez-faire approach to the tech industry may be becoming an obstacle to national security. U.S. tech companies are increasingly relying on exploitative data collection to support their business models. When it comes to new technologies such as artificial intelligence, the U.S. regulatory framework, which is largely driven by corporate economic interests, poses a growing danger because it tends to prioritize profit over safety and ethics.
The lack of regulatory oversight and user protection means that in the United States, Chinese companies do not need to provide the kind of assurance and transparency that they seem willing to provide elsewhere. For example, in response to stricter regulations on the use of personal data in Europe, TikTok has included data protection in its European Terms of Service.
It is U.S.-China cooperation in science and technology that can help prevent escalating political tensions
The TikTok bill would create new challenges for tech regulation, requiring lawmakers to continuously monitor a fast-growing area, rather than placing the responsibility on companies operating in the United States to track the risks to consumers and national security.
Governments need to think more broadly, rather than looking at individual companies as a thorn in their side. The government must first do a better job of enforcing existing regulations and increase fines for companies that violate existing regulations. A ban on divestitures offers an attractive option, but it should not be the first line of defense against data trafficking.
Currently, different states have different data protection regulations, and the federal government must fulfill its responsibility to regulate the U.S. economy in an effort to coordinate these policies. The federal government should scrutinize poorly regulated data brokers and companies that collect biodata, including those based in the United States.
In July 2022, a more comprehensive bill, the American Data Privacy and Protection Act (ADPPA), passed with near-unanimous support from the House Energy and Commerce Committee, but a formal vote on the bill was stalled in part by lobbying in the tech industry.
▎ On April 24, local time, Zhou Shouzi responded to the bill, "Please rest assured, we will not leave", "The facts and the constitution are on our side, and we look forward to winning again".
While the bill is not perfect, its reinstatement would be a good start to build a more comprehensive and positive vision for digital security, bringing the U.S. approach more in line with other democracies. Given that the ownership structure and user base of new technologies increasingly transcend national borders, the importance of strengthening the United States' own digital protection is even more prominent.
Passing a more comprehensive national data security regulation may sound like a difficult task for Congress now, but it shouldn't be if lawmakers do care about the impact of technology on national security, as they showed in the unanimous passage of the TikTok bill.
It would also give the U.S. more international credibility to China's efforts to expand extraterritorial data regulation, and allow the U.S. government to work more constructively with allies and partners. However, as things stand, the TikTok bill reveals – and is likely to cement – that the United States is increasingly inadequate in terms of technology regulation.
At the end of the day, the U.S. must strengthen its own data security and not use nationality or relationships with foreign nationals as the first line of defense. This is critical to protecting America's innovative vitality and worker dignity, especially in a time of tension between the United States and China. Encouraging a thriving relationship with China's science and technology sector can help prevent political tensions from turning into outright hostility.