If Trump wins re-election, he will likely continue to wage his anti-China war where the key battle is tech. Ownership of tech companies, along with any perceived censorship of conservative views, will likely dominate his tech agenda. In addition, we can expect the Justice Department to continue their anti-trust investigations.
However, if Joe Biden is elected he will have to balance competing interests within his party. While he has been critical of liability protections for online platforms, he has not gone as far as the more liberal wing of his party which has called for breaking up what they consider “monopoly power” of big tech. Another component of his political base is comprised of social media savvy millennials who grew up with the internet and others who utilize technology constantly professionally and personally, particularly during the pandemic. Also impacting a Biden administration’s tech policy would be Vice President nominee Kamala Harris who has represented Silicon Valley in the US Senate and is perceived to have close relationships with the industry.
Regardless of who wins the election, there will be attacks on what role technology had in the outcome. Were security measures lax which allowed foreign hackers to influence the election? Were conservative voices silenced in the on-line debates? Were candidates held accountable for the truth of their political rhetoric? We can expect the 117th Congress, the next President and possibly the Supreme Court to look at these issues in 2021.
Technology is attracting more attention of Congress each day. Hearings and legislation on a variety of issues have been at the forefront of Congressional interest this year. And in an election year, leading up to a fight for control of the Executive and Legislative Branches of government in November, you can expect even more scrutiny.
I wrote about Tiki Tok as a Professional Advisor to the American Influencer Council. Read the piece here: https://www.americaninfluencercouncil.com/aic-member-memo/how-creators-can-save-tiktok-petition-congress
HOW CREATORS CAN PROTECT TIKTOK WHEN THE U.S. GOVERNMENT OPPOSES IT
Opinion | By Hilary Jochmans, Professional Member Advisor | Follow @HilaryNY
The fate of TikTok has dominated the news cycle this month as the government seeks to socially distance the reach of the social media platform from the United States.
The wildly popular and lucrative short-form video app boasts over 100 million users in the US alone, according to Forbes. In this current political environment, the Chinese owned app has come under fire for allegedly failing to safeguard the personal information of its users and potentially sharing the information with the Chinese government. TikTok has repeatedly stated that it does not store U.S. users’ information on servers in China and that it would not give US data to the Chinese government, despite China’s National Intelligence Law, which can compel Chinese internet companies to provide user data to their government.
In an election year, when President Trump is campaigning as being tough on China, TikTok has become the visual target of his hardline approach to dealing with the communist regime. All three branches of the federal government - the Administration, Congress and the Courts - have inserted themselves into the debate, but what can the government really do?
Recently, President Trump claimed he would “ban” TikTok. While it is more nuanced than he made it sound in his statement, the President does have three powerful devices in his executive toolbox to seriously limit TikTok.
The first is the governmental inter-agency Committee on Foreign Investment in the US (CIFIUS), which is charged with reviewing foreign investment and purchases of U.S. companies if there could be a threat to national security. The committee is empowered to block such transactions. Back in 2017, the Committee began to investigate TikTok’s parent company ByteDance for its purchase of Musical.ly.
The second presidential tool is the Commerce Department’s “Entity List”. This rather innocuous sounding structure is essentially a blacklist for certain foreign companies and individuals. It would be very difficult for U.S. companies to do business with, and provide technology to, these entities. In terms of TikTok, Apple and other companies with app stores would not be able to facilitate the app on their respective platforms.
The third option for the President to assert his authority is with an Executive Order (EO). The Constitution provides for the President to issue directives to carry out the business of the government. On August 7, 2020, the President issued an EO that would ban TikTok from operating in 45 days if they are not sold. In justifying the ban, he cited national security concerns and vulnerability of U.S. user information. However, this ban would not go into effect if TikTok is purchased by what he calls, “a very American company” like Microsoft, as quoted in The Atlantic. Microsoft has been in negotiations to purchase and operate TikTok’s operations in U.S., Canadian, Australian and New Zealand markets.
The President has also said that if there is a sale, a “very big proportion of that price would have to go to the Treasury of the United States.” However, there does not appear to be any precedent for such a declaration.
While there has been a flurry of activity this past month by the federal government, TikTok has actually been in the government’s crosshairs for over a year.
The Federal Trade Commission (FTC), a government agency responsible for protecting consumers from, “anti-competitive, deceptive and unfair business practices,” fined TikTok in 2019 for violating the Children’s Online Privacy Protection Act (COPPA). In that case, the FTC found TikTok had broken the law when it collected personal information from children without parental consent. Since then, TikTok has added parental controls, but some advocacy groups say it does not go far enough to protect children.
Congress has also weighed in on TikTok. Senate Minority Leader Chuck Schumer (D-NY), along with his colleague, Tom Cotton (R-AR), urged the Director of National Intelligence to investigate TikTok. As a result, the Army and the Navy banned TikTok for their members. This followed a request from Senator Marco Rubio (R-Fl) to ask CIFIUS to initiate an investigation into the platform.
Senator Josh Hawley, (R-MO), despite being a millennial, has become an anti-tech crusader on Capitol Hill. At the beginning of August, the Senate passed his bill to prohibit federal employees from using TikTok on government-issued devices. Similar legislation has been introduced in the House, but it has not been considered.
There are several bills pending in Congress which address broader social media issues. Hawley has a bill, the, the Social Media Addiction Reduction Technology (SMART) Act, which would ban infinite scroll, auto refill, and badges, except in limited circumstances. It would also require social media platforms to include “natural stopping points” for users, which would essentially terminate a user’s ability to scroll after a certain amount of content.
He is also drafting legislation which would require Google, Facebook and others to cease selling targeted ads if they want to keep key legal protections provided under section 230 of the 1996 Communications Decency Act. The law essentially protects them from lawsuits for the content of user posted material. This provision has been critical to the growth of the internet over the past 25 years. Members on both sides of the aisle have raised the possibility of revisiting this law to examine how tech platforms handle the content, but Republicans have been particularly interested in this as they say conservative views are being censored.
At the opposite end of the political spectrum in the Senate, Ed Markey (D-MA), known to many as the Senate sponsor of Rep. Alexandria Ocasio-Cortez’s “Green New Deal” legislation, has introduced the Children and Media Research Advancement (CAMRA) Act. This measure would direct the National Institutes of Health to research the effects of technology and the media on children, with a focus on social media addiction.
Federal courts have been also been engaged on TikTok’s operations. Cases allege the unauthorized practice of collecting, storing and sharing certain personally identifiable information without users’ consent.
In one case, a college student alleges TikTok amassed, without her consent, a trove of personally identifiable information which it then transferred to servers in China. Another case in Illinois also alleges the collection of personal data, in this instance, of a minor.
So, what’s next? The clock is ticking on TikTok’s fate in the U.S. Under the current timeline, some action, whether it a be a sale or a removal from the U.S. system, must happen by mid-September.
WHAT CAN YOU DO?
The First Amendment of the U.S. Constitution provides for its people, “to petition the Government for a redress of grievances.” Redress means resolution, grievances are objections. If you are concerned about the preservation of social media platforms for personal expression, education and your profession, you should contact your elected representative and make your voice heard. You can find your Congressional or Senatorial representative here: Congress.gov
Join the AIC and call on Congress to act on an issue via Petitions.WhiteHouse.gov. Sign our petition for a redress of grievances over the Executive Order on TikTok.
ABOUT THE AUTHOR
Hilary Jochmans is a government affairs consultant based in Washington D.C. Before starting her business, she worked on Capitol Hill and in New York State Government. She is also the founder of PoliticallyInFashion.com, a community for all people interested in fashion to engage on legislative issues of importance to the industry. The mission is to: Educate, Empower, Engage.
Congress has been critically looking at big tech issues for the past two years, specifically anti-trust, liability protection and social media platforms.
In July, the Antitrust Subcommittee of the House Judiciary Committee held the first ever hearing with the four CEOs of the big tech companies. This marathon six hour hearing, which ironically was held virtually, was the latest action in a year of investigations by the committee into the tech companies’ business practices and whether they were harmful to consumers, small businesses and other tech companies.
A final report is due in the Fall.
Section 230 of the Communications Decency Act, 470 U.S.C. § 230, generally grants immunity from liability to online platforms for content of user posted material. This provision has been critical to the growth of the internet over the past 25 years. Members on both sides of the aisle have raised the possibility of revisiting this law to examine how tech platforms handle the content, but Republicans have been particularly interested in this as they say conservative views are being censored. Millennial Senator Josh Hawley (R-MO) has introduced legislation which would require Google, Facebook and others to cease selling targeted ads if they want to keep this legal protection.
Check out the letter to the FTC asking them to update the Green Guides - a federal regulation designed to assist businesses in making lawful environmental marketing claims and the public in understanding and appreciating these statements. Contact Hilary@PoliticallyInFashion.com to learn more or sign on!