EXPERT INTERVIEWS — Does Chinese ownership of the wildly popular TikTok app pose a national security risk to the United States? And if so, what should be done about it? The twin questions have occupied the Biden Administration and the U.S. Congress since last spring, when President Biden signed a law that would ban TikTok in the U.S. unless it found a new, non-Chinese owner. Later this week, the Supreme Court is expected to rule on the law’s constitutionality, ahead of the January 19 date when the ban is to go into effect.
The case before the court – Garland v TikTok – pits the Biden administration against TikTok’s parent company, ByteDance, a Chinese entity which argues that the law violates the First Amendment. The Biden administration says the law has nothing to do with free speech but is a matter of national security, given the possibility that reams of data collected by TikTok’s owners will be used by the government of China.
Beyond the involvement of the various branches of government, there are other interested parties: the more than 170 Americans who are loyal users of TikTok, and an array of national security and global communications experts who have weighed in to debate the issues raised by the TikTok case.
As the Supreme Court heard arguments on the matter, we spoke to two members of The Cipher Brief expert network – Rear Admiral Mark Montgomery (Ret.), a former Executive Director of the Cyberspace Solarium Commission, and Glenn Gerstell, former General Counsel at the National Security Agency – both of whom have followed the TikTok debate for a long time. The two agree on the national security risks in play; they differ on the merits and strengths of the law.
These interviews have been edited for length and clarity.
The National Security risks
The Cipher Brief: Why in your view is there a national security risk in Chinese ownership of TikTok?
Montgomery: Today we have about 170 million-plus Americans that use TikTok. Like other social media apps, TikTok collects a significant amount of personal data on the users. Like others, it has a proprietary algorithm that analyzes and assesses what each user should see on the app.
But unlike other social media apps, TikTok absolutely works at the behest of the Chinese Communist Party. The Chinese Communist Party has passed seven laws between 2015 and 2023 that govern intelligence collection. There is no reason to believe that the Chinese Communist Party won’t have access to the personal data of TikTok consumers, the 170 million Americans in this case. Congress recognized that this alone is a national security threat. Congress recognized this and passed a law.
Gerstell: I don't think there's any doubt that on some level at least, China presents a significant and serious national security risk. I don't think anyone's debating that. The question of how that could manifest through an app that is owned by a Chinese company, ByteDance — which I might add has American investors, institutional investors as a big part of it, but nonetheless, it's a Chinese company — the question is how ByteDance might be required to respond to Chinese law, in particular the Chinese national security law, and either hand over data about Americans that was collected on the app or possibly covertly influence the content on the app. That's the question. That's the risk that has been identified by national security officials as relevant to the TikTok app.
I definitely think it's a risk. I should be clear that there's been no showing that that risk has materialized. The government, even in the most recent case, has not said that China has already sought to manipulate data on the TikTok platform. Nor is there any showing that Americans’ data has been siphoned off to Beijing, so to speak. But there is that potential.
Manipulation of content
Montgomery: To me, the biggest national security issue surrounds the manipulation of the narrative on the platform to project an anti-American, pro-Chinese national security narrative. What I mean by that is that TikTok is able to influence what the 170 million Americans really receive. For Americans under 40, these social media apps are their primary source of news and opinion information.
When TikTok was transparent and you could see the algorithm and how the results are produced, it demonstrated a strong anti-United States national security interest narrative and certainly a strong pro-China one. A couple of examples: if you looked at Uighur genocide, it was 11 times more likely to be available to an Instagram user than an equal number of TikTok users. If you looked at Free Tibet, it was 40 times more likely. If you looked at Taiwan independence, it was 16 times more likely. Clearly the algorithm was set so that things that China was embarrassed by or didn't like or didn't agree with weren't available to the American public. That extended even further, to include U.S.-specific issues like support for Ukraine or support for Russia – eight times more likely on support for Ukraine on Instagram than on TikTok. So what I'd say is the data retention plus the narrative manipulation combine to present a national security issue that the United States should not absorb.
Gerstell: There are basically two [threats] that have been identified: covert manipulation of content, as well as some kind of inappropriate theft or use of the data about American users. And we're talking about a lot of American users. TikTok as an app is right up there along with some of the other big social media platforms as being massive vacuums of data about your contact lists, your location, whatever else you're doing on the web. TikTok says that they do not send that data to Beijing, and they even proposed and currently arrange for Americans data to be housed in the Oracle cloud in the United States and in Singapore, not in China. But that risk is there – it's a potential [risk], and it's not totally clear exactly what China would do with all that data. One can imagine putting it to use in some ways.
But I think the far greater risk, the more nefarious risk, is that of covert influence by the CCP of content. And let's just take an example of how this might play out in the real world. Let's assume that President Xi decides he wants to invade Taiwan next year. And in order to do that, he wants to weaken American will about assisting Taiwan, and sow doubts about whether it makes sense for Americans to risk their lives defending Taiwan. One way to do that might be to start using TikTok as a vehicle to sow doubts about Taiwanese democracy. And you can imagine seeds of doubt and seeds of uncertainty being planted, perhaps in a way that isn't all that obvious, just by manipulating content. And that's exactly what people are worried about.
And as a general matter, we Americans don't want foreigners influencing our public debate. We've already got enough dissension as it is without the help of foreigners.
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The statute before the Supreme Court
Montgomery: What the [Congress] said wasn't that TikTok is banned, but that TikTok is owned by a Chinese company beholden to the Chinese Communist Party, that Chinese government control over TikTok affords the Chinese direct access to those 170 million American user accounts, and it's allowed TikTok to manipulate the national security narrative. They didn't ban it. They said it has to be sold by ByteDance, the Chinese company, to a company or group of people not under the control of a country of concern, like China. And to be a country of concern, you’ve got to really work hard. China, Russia, Iran, North Korea, Sudan, Venezuela – it's a pretty elite group there.
Gerstell: This law is aimed at trying to eliminate that potential of nefarious use. It’s not clear to me that it would actually 100% achieve its goals, but that's the goal of the statute.
Congress passed it in part because many members were worried about the national security risk. No one wants to look soft on China, so to speak. So it was enacted. I don't think it's the smartest way to deal with the problem, but let me be clear, I definitely agree there's a problem. I'm not saying we shouldn't address the problem, but unfortunately Congress waited until the app became wildly popular. It's got 2 billion users around the world. 170 million Americans use it, including, I might add, the Biden campaign and the Trump campaign. Arms of the federal government and state government use it to convey useful information, including, right now, about the California wildfires, for example.
There's no question the app is useful. It also presents a risk. There probably were earlier and better ways of addressing it upfront before it got to this point. And now that it's at this point, we're faced with the ugly solution of taking away a social media app and something that's used by many creators and it arguably affects their free-speech rights. I get the opposing arguments. I'm just simply saying it's a suboptimal solution and one that we could have avoided.
The reality is that in the First Amendment area, we want to look very carefully not at the form of the restriction, but its actual effect. And in this case, the effect is essentially to remove this particular platform. The fact of the matter is this doesn't really address the concern that the federal government has raised, which is, Oh, we're not addressing content, we're only addressing corporate structure, but then they totally admit that the reason we're doing this is because we're worried about covert Chinese manipulation of content. So it is content-based. I don't think there's any way of getting around that. I think the Supreme Court hearing made that pretty clear. And so if it is content-based, we've got to tread very carefully.
The First Amendment argument
Montgomery: Let's be clear: it's been held that a foreign entity, either business or person, doesn't have First Amendment rights in the United States. I'm not opposed to TikTok. I don't believe that Congress was opposed to TikTok. What they were opposed to was ownership of TikTok by a country of concern.
The fact that we're even having this discussion is jaw-dropping to me. In 1970, if the Soviet government had tried to purchase CBS News and said, don't worry, this is a First Amendment issue, let Pravda transmit, we would not allow it. We've passed laws that actually explicitly get at that and say, you can't have foreign ownership of TV, radio, and print media. I mean, that's why Rupert Murdoch's a U.S. citizen, right?
What's happened here is you have to believe that social media is not a news platform or is not a news propagation service to not believe that they shouldn't be treated the same as print, radio and TV. There is a reason we don't allow foreign governments to propagate their disinformation directly into our homes.
I'm so tired of hearing this "woe is me" about why can't the Chinese government tell their story in America? The answer is they can. They need to label it the Chinese government, put press releases out from their embassy. Their ambassador is free to go around America spouting lies. He does. What they can't do is take over a U.S. social media app and propagate a narrative of the news, of international stories that works against the United States. I don't [care] about dance videos or cat videos. What I care about is the pushing of a narrative that says inside America, Russia is good, Ukraine is bad, the Uyghurs are treated well, there is no genocide, the Tibetans are thrilled, there is no occupation, Taiwan should be part of China, there should be no independence. That is what you hear on TikTok.
The Soviet Union would have loved to have done the same thing in the 1970s, but we stopped them.
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A future for TikTok in the US?
Gerstell: The statute would be met by a sale [of TikTok] to a non-foreign adversary. That could be a United Kingdom company, it could be an American company, whatever. Interestingly enough, covert Chinese manipulation could still occur. That could occur on Facebook as American as can be, et cetera. So we're not stopping that. That's one of the reasons why I said the statute's not ideal. It doesn't really solve the problem.
Montgomery: If ByteDance is able to be a smart company and sell, then TikTok's going to live. So yes, there's a future for TikTok.
Now, if you're telling me that it turns out ByteDance is so under the thumb of the Chinese Communist Party that they will not be allowed to sell in a moment of Chairman Xi's hubris and ego, it kind of proves my point. So I sleep well, because either it's sold and TikTok's still around and 18-year-olds can do stupid dance videos to their heart's content, and then its algorithm has turned to selling that same 18-year-old as many different blushes and lipstick as they can. Great. But if it turns out that they're not allowed to sell, then my deepest concern was true — that the control was so explicit that they would sacrifice $200 to $300 billion.
I think [ByteDance] is going to lose. In the end, Congress and the current president are the ones who determine the national security of United States. They passed a law based on that. I think the judicial [branch], the third leg of the government is going to bend the knee, as they traditionally have, to Congress's right to drive the national security narrative in the United States.
Gerstell: It’s hard to say [how the Court will rule]. The hearing produced tough questions from the nine justices for both sides, both the government and TikTok. I'd have to say right now that TikTok is facing an uphill battle. The reality is that there have been two lower court decisions that went completely against them. They've got a Supreme Court that is by and large willing to defer to the executive on questions of national security, which clearly this is. The statute on its face doesn't necessarily directly implicate the First Amendment. So I'd say TikTok has an uphill fight.
Having said that, the justices are aware of the First Amendment implications. They're going to tread very carefully here. This is a very complex area. Maybe they kick the can down the road and send the case to the lower courts, or maybe they just issue a stay and consider the matter later on in 2025, during which time President Trump and the new Congress can figure out another solution to this. Trump has said he wants to figure out a better solution. So we'll see.
The reason the parties were struggling in the Supreme Court, with very tough questions for both sides, is because we don't have a really integrated, coherent way of dealing with the risks posed by technology from China. We're perfectly happy to accept all the rewards of that, which is cheap products, products that by and large tend to work, and have become pervasive, whether it's drones or link routers or what have you. We're very happy to use Chinese technology, but it also carries the surveillance risk. We don't have a comprehensive integrated way of dealing with that.
Maybe we need some kind of old fashioned “good housekeeping” seal of approval on products or apps that say this isn't subject to surveillance regimes by China or data theft or whatever. But we've got to come up with a more thoughtful way, not just playing whack-a-mole — we're banning Huawei equipment one day or drones another day or maybe this particular app. What about all the data that Temu and Shein, the two big Chinese shopping apps, what about all the data that they collect from tens of millions of Americans? We're just dealing with this in a very piecemeal, non-integrated way, and that's what I think is up to Congress to do. And that's gonna be a really big issue for the next decade.
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