Guide
The recent passage of the TikTok-related bill by the United States highlights its pursuit of digital hegemony, which is a common means of suppressing the development of other countries, with obvious political repressive tendencies. The bill is not only unconstitutional, but also violates WTO rules, is completely inconsistent with the principles of market economy and fair competition that the US has always flaunted, and tramples on the spirit of democracy and the rule of law, and infringes on China's digital sovereignty. Its unilateralism and protectionist behavior will seriously damage the business and investment environment of the United States, and also seriously undermine the basis of international law and the international rule order.
Zhang Monan is deputy director of the U.S.-Europe Research Department at the China Center for International Economic Exchanges
Last month, the U.S. House of Representatives overwhelmingly voted 360 to 58 to pass the 21st Century Peace through Strength Act, a TikTok bill bundled with foreign aid programs. This bill is not only seriously unconstitutional, but also a very bad precedent in the history of American justice, and is bound to have a profound impact on the rules-based international order.
The TikTok bill highlights the U.S. quest for global digital supremacy. In recent years, as the new round of scientific and technological revolution has become more and more shaping of inter-state relations, the digital field is becoming a new highland of strategic competition between major powers and a new frontier of the Sino-US game. The rapid advancement of the TikTok bill is not only a special action, but also a common means for the United States to expand its sovereignty and suppress the development of other countries in recent years, with obvious political suppression tendencies.
The essence of the TikTok bill passed by the U.S. House of Representatives is that it is a crime of banditry in the name of the law, which has seriously trampled on and shaken international legitimacy. Security issues should not become a tool for individual countries to generalize the concept of national security, abuse state power, and unjustifiably suppress other countries' enterprises. The U.S. has so far failed to produce evidence that TikTok threatens U.S. national security, and has failed to prove that prohibitive measures such as a complete ban on the app's listing in U.S. app stores and a ban on U.S. web hosting services are the only means to achieve this goal. Forcing the sale or banning of TikTok will raise a number of legal issues.
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First, the bill violates citizens' right to free speech granted by the First Amendment to the U.S. Constitution. In the United States, free speech is protected by the First Amendment, and government restrictions on free speech are often subject to intense scrutiny by the courts. The TikTok ban clearly constitutes a restriction on free speech: on the one hand, it restricts the freedom of American residents to use the TikTok platform to express their speech and receive information; On the other hand, it also restricts the freedom of TikTok's owner, ByteDance, to moderate and push content on the platform.
Second, "sell or ban" violates the Fifth Amendment to the U.S. Constitution. According to the requirements of the new law, ByteDance, the parent company that currently holds the entire equity of TikTok, must sell its shares according to the period (270 days) and proportion (no more than 20%) specified by the President of the United States. If a "qualified divestiture" is performed before the ban goes into effect, then other businesses can continue to provide distribution, maintenance, updates, and internet hosting services to the app; If, after the ban goes into effect, a "qualified divestiture" is also performed, the ban will also end, meaning that other businesses are no longer prohibited from providing distribution, maintenance, updates, and Internet hosting services to the app.
If TikTok is banned, it will be equivalent to depriving its parent company, ByteDance, of its assets in the absence of due process. This is in fact a violation of the Fifth Amendment to the U.S. Constitution, which states that "no one shall be deprived of his life, liberty, or property without due process of law."
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Third, the US has abused its national security review powers and seriously infringed on China's digital sovereignty. The new law defines "applications controlled by foreign adversaries" very broadly and gives the U.S. president a great deal of discretion in a number of provisions. The bill skipped the process of executive branch designation, simply and crudely designating TikTok as an "app controlled by a foreign adversary," claiming that TikTok may share user data with the Chinese government, exaggerating the national security risks faced by the United States. The Committee on Foreign Investment in the United States (CFIUS) defines TikTok as a so-called "national security threat," but CFIUS neither voluntarily provides a basis for its conclusions, nor does it respond to investors' requests for evidence, which is a complete "black box operation."
In recent years, digital security review is becoming a new means of US containment of China. In terms of foreign investment review, a key element of the Foreign Investment Risk Review Modernization Act (FIRRMA) is the expansion of jurisdiction to include certain non-controlling foreign investments made by U.S. companies involving "critical technology," "critical infrastructure," and "critical or sensitive data."
Against this backdrop, the logic behind TikTok's attempt to take control away Chinese companies is self-evident. With the rapid rise of China's digital platform companies, TikTok's performance in the U.S. market is particularly eye-catching. According to market research agency Statista, in 2023, TikTok will have a 26% share of the U.S. social media market, far surpassing Facebook and Instagram, and its influence is increasing. It is precisely because TikTok is owned by a Chinese company that even if it stores data in the United States, the U.S. government follows the "controller standard" and still believes that the relevant data will be controlled by China, which threatens the data security of the United States. At the same time, because TikTok is owned by a Chinese company, the United States may not be able to effectively access the data it controls under rules such as the Cloud Act.
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Fourth, the new law flagrantly violates the World Trade Organization's (WTO) principle of fair competition and seriously worsens the business environment in the United States. On the one hand, the bill ignores the reasonable requirements of protecting the legitimate rights and interests of foreign companies and suppresses TikTok and ByteDance, violating the WTO's principle of transparency and non-discrimination. On the other hand, TikTok provides consumers with short video and other information services in the United States, which is regulated by the General Agreement on Trade in Services (GATS) of the WTO. The TikTok ban means that Chinese companies have lower treatment than the U.S. treatment for third-country companies and U.S.-based companies, which is a serious violation of the principles of "most-favored-nation treatment" in Article 2 of GATS and "national treatment" in Article 17.
In addition, in April 2018, the United States submitted a draft Joint Statement on Electronic Commerce Initiatives to the WTO, which specifically refers to the idea of free flow of data across borders, proposing that trade rules should ensure that consumers and businesses can move data across borders without discrimination. Obviously, the TikTok bill goes against the principled position of the free flow of data put forward by the United States itself.
There is no doubt that the TikTok bill will become a very bad precedent in the history of American justice. The US has abused its state power, politicized economic issues, illegally hunted and suppressed enterprises in other countries, and seized the property of foreign-invested enterprises, which has also caused huge economic losses to more than 7 million small and medium-sized business owners in the United States. This seriously violates the principles of market economy and fair competition that the US has always flaunted, and undermines the spirit of democracy and the rule of law. Its unilateralist and protectionist acts will seriously damage the business and investment environment of the United States, and will also seriously undermine the international legal basis and the international rule order.
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