Restoring an open internet requires softer China policy

A common reaction among tech policy and internet freedom advocates to the upcoming ban of TikTok in the U.S. is to reject it as a step back from the traditional U.S. internet policy of openness, free speech, and innovation. How, they say, can the U.S. argue for these traditional values internationally when the U.S. is so blatantly violating them itself?

This reaction fails to come to grips, however, with the implications of the U.S.’s current confrontational policy toward China, a policy that is predicated on a conception of China as seeking every opportunity to undermine and destroy U.S. interests domestically and internationally. Once one adopts the perspective that the Chinese government is the mortal enemy of the U.S., it becomes unthinkable to allow a social media app under its control—with access to half the U.S. population—to operate in the U.S, even under a regulatory regime designed to prevent its use for surveillance and propaganda. And this exclusionary practice is only beginning. Other Chinese companies will almost certainly be banned as well. Tech policy and internet freedom advocates who want to restore the traditional U.S. posture of openness, innovation, and the free flow of ideas toward China must challenge the underlying foreign policy and national security posture that justifies the TikTok ban.

None of the common justifications for a ban work if China is viewed as just another sovereign county governing itself according to its own lights and advancing its interests in the international arena.

In a New York Times column, progressive law professor and former Biden administration White House official Tim Wu tries to justify the ban on the grounds that China’s internal speech policy is restrictive toward its own people. Just recently, he notes, China forced Apple to delete Threads, Signal, and WhatsApp from its China App Store. But why should the U.S. deprive itself of valuable social media services just because China has speech policies markedly at variance from those established in the U.S.? Those policies might hurt China, but not the U.S.

What about the argument that China would enforce these restrictive speech policies in the operation of TikTok in the U.S.? But under current U.S. free speech law, the operator of a social media company has the freedom to say what it wants using the affordances of algorithmic amplification and suppression, even if what it wants to say is not a position favored by the U.S. government. Elon Musk’s decisions on what X allows and disallows are not subject to review by U.S. government agencies or courts; neither should the comparable decisions by TikTok.

If the U.S. changes this posture through a decision by the Supreme Court to allow the Texas and Florida state social media laws to go into effect, TikTok along with all the other social media companies will have to avoid political discrimination in their content moderation policies in Texas and will have to carry political candidates and news organizations in Florida. But outside of those possible constraints, under U.S. law it should remain free to distribute the content it wants.

What about the argument that the law is not really a ban? It imposes a choice of divesting or being banned. But China has export controls in place just as the U.S. does and it has said it will use these laws to prevent a TikTok sale. The video-sharing app itself may not be consequential to China’s quest to become an industrial and technological powerhouse, as the Wall Street Journal has noted, but transfer to a U.S. company of the algorithm that drives TikTok’s success would be a blow. ByteDance itself has said it will not sell. As law scholar Alan Rozenshtein says, in an excellent Lawfare commentary on the First Amendment issues involved, the law must be defended as if it were a ban.

What about the argument that we have the right to ban Chinese companies from operating in the U.S. because China bans U.S. companies from operating there? But this reciprocity argument doesn’t work either because China has no law banning U.S. companies. For instance, Tesla has operated in China for years and China is its second-largest market with 1.7 million drivers. The U.S. company just received permission to expand its services to include full self-driving software after taking steps to satisfy China’s privacy law.

What U.S. observers often describe as a ban of foreign companies is simply a requirement that they operate in accordance with China’s laws. Many companies find these laws oppressive and avoid the jurisdiction. But that is their free choice. Netflix, for instance, cannot be bothered to meet the onerous content requirements of Chinese law, while U.S. movie companies brave the bureaucratic barriers and have turned China into their second largest market.

China welcomes U.S. tech companies and content providers as long as they accept China’s rigid system of content controls. Microsoft sells software and services there, including making available its search engine Bing. Adobe and IBM also provide services in China. Apple makes and sells iPhones in China and operates an App Store there. Google operated its search engine there for years until it withdrew in 2010 out of frustration with China’s content controls and cybersecurity concerns.

Every country in the world requires companies operating within its borders to accept local law. The European Union, for instance, requires U.S. companies to abide by its data protection law—and has several times rejected agreements for transatlantic data flows because the U.S. requires tech companies under its control to conduct mass surveillance of European citizens. China’s so-called ban on U.S. companies is just what other countries routinely do to enforce local law.

While the TikTok ban seems irrational when China is considered simply as a sovereign nation like all the others in the world, it becomes understandable and even necessary when China is viewed as the mortal enemy of the U.S.

The argument is simple. China is an enemy of the U.S. Moreover, Chinese law requires companies under the control of China to conduct surveillance and to distribute propaganda if asked to do so. ByteDance is under the control of the Chinese government and TikTok is under the control of ByteDance. When push comes to shove, TikTok will do what it is told to do. It will become a fifth column, operating as an agent of a foreign adversary to undermine the interests of the U.S.

Many people have remarked on the absence of evidence that TikTok is doing this right now. Indeed, the U.S. intelligence community must know that TikTok is not now engaged in mass surveillance and propaganda; otherwise, it would have presented the evidence showing such active surveillance and propaganda, which it has not done. Even those emerging from confidential briefings agree with public intelligence agency comments that the concerns are hypothetical, not about what TikTok is doing but about what it could do if so directed by China.

But that is not the point. Effective cybersecurity against an adversary does not operate by waiting to see if the adversary exploits a vulnerability and then trying to fix it. It seeks to eliminate threats before the damage is done. As the U.S. struggle with China becomes more acute, verging ever closer to active conflict, it is hard to believe that China will not do whatever it can to undermine the U.S. determination to prevail in the struggle, and this would include assessing U.S. opinion as evidenced by behavior on TikTok, and then seeking to manipulate it by distributing material favorable to China’s position and censoring anti-Chinese content. If the U.S. waits until that happens, it will be too late to do anything about it. The ban is a rather conventional response to a security risk: remove the risk.

Looked at this way, banning TikTok is similar to banning the use of Huawei equipment in U.S. telecommunications and computer networks. China might have installed undetectable capabilities in Huawei’s hardware that could spy on U.S. communications or disrupt them in a time of crisis. Huawei says it has not done this and there is no evidence that it has, as a district court admitted in upholding the 2019 law banning Huawei from federal government networks. But Huawei might be lying. It would do no good to discover these hidden capabilities only when they are used to cripple U.S. communications infrastructure in the middle of an active conflict.

In both cases, defensive action against foreseeable harm by a known adversary is the only prudent course of action.

But what about free speech? It might be just prudence to ban Huawei’s hardware, but it might be argued that TikTok’s speech has to be treated differently. Internet freedom advocates could argue that China is indeed the mortal enemy of the U.S., seeking to undermine the country in every way including mass surveillance and propaganda, but the U.S. commitment to free speech means it should be allowed to do this through its control of the TikTok app. Several law professors suggest that China should be allowed control over TikTok absent clear evidence of influence or manipulation.

On May 7, 2024, TikTok sued to block the U.S. ban. It argued on First Amendment grounds that “speculative concerns fall far short of what is required when First Amendment rights are at stake” and asserted that Congress had failed to consider “less restrictive alternatives” to address national security concerns.

This argument has a certain force. The law banning TikTok is based explicitly on the viewpoint TikTok is likely to express or foster. The House Report accompanying the bill says a ban is needed because TikTok can be used to “push misinformation, disinformation, and propaganda on the American public.” In the Lawfare commentary referred to above, Rozenshtein says the ban is designed to block Chinese “manipulation” or “influence.” Such viewpoint-based restrictions on speech are rarely if ever upheld by courts reviewing them under the First Amendment.

Nevertheless, the courts are likely to uphold the law, even if it discriminates against China’s point of view. The U.S. has always prevented foreign citizens from owning broadcast properties. The only conceivable reason for this is to prevent them from distributing disfavored points of view to the American public. So, this precedent might allow the court to accept viewpoint discrimination as a basis for restrictions on the ownership of social media.

Conservative columnist George Will cites the 1965 Supreme Court decision concerning communist propaganda as evidence that the courts will strike down the TikTok ban. The courts will have to consider this precedent and interpret it for the TikTok law. But one interpretation is that it concerns only the rights of U.S. citizens not to be burdened in their access to foreign propaganda through the mails, not the rights of foreign adversaries to distribute it in the U.S.

Moreover, the courts might well uphold the TikTok ban based upon the non-content concern of Chinese spying. Even though a district court has preliminarily ruled that a Montana law banning TikTok from the state was not narrowly tailored to address the possibility of Chinese surveillance, higher courts are likely to follow the Huawei precedent that upheld a ban based on the mere risk of Chinese surveillance.

Ultimately, it seems highly unlikely that the courts will have the nerve to second-guess the judgment of the Congress, the president, and the intelligence community that a ban is necessary to preserve and protect the national security interest of the U.S. Such an interest is clearly compelling, and the court has no expertise or legitimacy to determine that a less restrictive means would mitigate the risk of surveillance and propaganda posed by the control of TikTok by a hostile China. As Matt Perault has noted, lawmakers and administration officials have already dismissed a less restrictive regulatory approach such as the Project Texas, concluding that it could not assure an acceptable level of safety once one accepts the view that China is an implacable foe bent on evading any regulatory requirements. For a court to rule otherwise would be for it to become a participant in the formulation of national security and foreign policy, a legitimate role for citizens, administration officials, and legislatures but not for reviewing courts.

As many have noted, the Constitution is not a suicide pact. If the U.S. is really confronted with a mortal enemy seeking its destruction as a nation and as an international force in the world, then it must behave as if it is at war. In wartime, enemy propaganda aimed at the domestic population simply cannot be tolerated and the risk of such propaganda must be eliminated, not merely reduced.

As Rozenshtein says in his Lawfare piece, banning TikTok is about “Chinese influence.” New York Times technology reporter Sapna Maheshwari put it well in a recent edition of The Daily: “And ultimately, it all comes down to China and this idea that you can’t have a social media app like this, a source of news like this, that is even at all at risk of being influenced by the Chinese government and our greatest adversaries.”

Tech policy advocates cannot have their cake and eat it too. They cannot embrace the idea that the U.S. is effectively at war with China and also hold on to the dream of the free flow of information from China. They must confront the plain fact that the current U.S. policy of confrontation with China—widely accepted by both political parties—means that within a year 170 million Americans will lose access to a communications tool they use to enrich their lives and make a living for the sole reason that the company providing this service is a Chinese company.

And the situation will only get worse. Banning TikTok is not the end of the story. As political scientist José Marichal pointed out in a perceptive comment for Tech Policy Press, TikTok is just an early casualty of the tech war between the U.S. and China. Inevitably, more Chinese companies will be excluded from the U.S. market. The ban arguably already applies to ByteDance’s other apps, Lemon 8 and CapCut. Since CapCut is the most widely used vertical video editor on the market, banning it would cripple the use of short videos throughout the U.S. economy. As one video editor commented, it “would be the book burning of the digital age.”

WeChat is the obvious next choice, since it allows direct communication between Chinese residents and people in the U.S. The Trump administration sought to ban it until it was rebuffed by a district court in 2020. Then would be Weibo, the enormously popular Twitter-like app that is available in English in the U.S. for both iPhones and Android. Then come the popular online video games Fortnight and League of Legends with sufficient Chinese ownership to be covered by the new law. Next would be Shein and Temu, the marketplaces controlled by Chinese companies, and therefore under control of the Chinese government. These apps make Chinese goods available to U.S. customers, but they could easily be used to spy on them or to deliver covert propaganda. Following this would be CGTN, the international news channel from China, with production offices in Washington, D.C. and distributed online, through its app and on cable systems and satellite outlets. The U.S. has already labeled the news channel an agent of a foreign power and required its employees to register as such.

No new laws would be needed to ban these other Chinese companies since the law banning TikTok also authorized the administration to ban other apps controlled by foreign adversaries. In each case, the argument for a ban is the same. These outlets could be used against the U.S. Why give China the opportunity? Why wait for them to do harm to U.S. interests when by acting now their surveillance and propaganda could be preemptively blocked?

To challenge the TikTok ban and these likely future exclusions, tech policy advocates must enter into unfamiliar territory. They must develop a foreign policy and national security position at variance with the one dominating the current thinking of U.S. policymakers. While a simple return to the strategy of engagement and cooperation might not be possible after the years of hostility, a course correction toward a less confrontational China policy is needed.

It might be objected that tech policy advocates are not foreign policy or national security experts. They must be agnostic about these issues and simply accept conclusions on these matters from the experts as the basis for policy toward tech and communications companies.

But that is not how tech policy advocates operated in the past. In dealing with intellectual property issues, tech policy advocates did not abstract from the conflict between content users and owners of intellectual property. They jumped in to defend the benefits of access to information as the engine of innovation, and against the exclusionary claims of the content industry. Tech policy advocates did not stand aside while privacy issues were debated by experts, waiting to see what the received wisdom would be from these policy disputes. They engaged in passionate argument against tech companies’ exploitation of personal information and in favor of strong rules that upheld the fundamental human right to privacy. Tech policy advocates did not sit on the sidelines while the neo-Brandeisians engaged with the Chicago School on the reform of competition policy for tech. They joined the movement for a new, ex ante, pro-competitive regime designed to foster fairness and contestability in digital markets.

In the same way, tech policy advocates must engage in today’s debates on foreign policy and national security. They cannot wait until domain experts and policymakers reach a consensus and then simply join the chorus for policies that have been decided elsewhere. For better or worse, the future of tech policy is going to consist in large part of discussions and debates about foreign policy and national security. Tech advocates can engage or become irrelevant to the major tech policy issues of the day.

For my part, I would favor a revised and updated policy of constructive engagement and cooperation with China. Framing the U.S. relationship with China as a struggle for world dominance leads inevitably to the kind of exclusionary policies embodied in the TikTok ban and could lead to much worse. A lot more must be said to render such a position plausible in the face of a near universal consensus in the U.S. to treat China as a hostile power that must be confronted and defeated. Clear-eyed foreign policy experts at the Quincy Institute are taking the lead in such a rethinking of U.S China policy. Tech policy advocates should join the effort.

It is only in the context of a less confrontational policy with China that a regulatory solution to the national security concerns posed by Chinese control over companies operating in the U.S. becomes plausible. Project Texas might not be the perfect set of controls, but its mixture of data localization, external oversight of its algorithm, and regulatory supervision would be a good basis for reasonable precautionary measures against a China that is considered a peer economic competitor but not an implacable foe.

Reducing tensions with China would restore life to the original dream of a free flow of information to the U.S. from a global communications network. Of course, China will never accept such a policy for its domestic economy, but that is its loss, not that of the U.S. The costs to the U.S. of adopting a similar exclusionary policy are only beginning to be felt and will get substantially worse over time. The time to push for a reversal of the policy of banning Chinese communication companies is now, and the best way to do that is not to claim an exemption for communications from a fundamental antagonism between the U.S. and China but to seek to reduce that antagonism so that open communications to the U.S. can once again take place.