New TikTok ban is poised to advance in Congress

New TikTok ban is poised to advance in Congress

Rafael Henrique | Sopa Images | Lightrocket | Getty Images

WASHINGTON — The U.S. House Foreign Affairs Committee plans to take up legislation Tuesday that would give President Joe Biden the authority to ban TikTok, the Chinese social media app used by more than 100 million Americans.

The panel is scheduled to vote on a series of China-related bills Tuesday afternoon, including one that would revise the longstanding protections that have shielded distributors of foreign creative content like TikTok from U.S. sanctions for decades. Introduced last Friday, H.R. 1153 is expected to pass the committee on Tuesday.

The bill that could ultimately ensnare TikTok, owned by China’s ByteDance, only has one sponsor, the committee’s newly seated Republican chairman, Texas Rep. Mike McCaul.

Typically, a bill this new, with only one sponsor, would not move to committee votes just days after it was introduced. But the choice of which bills will advance through a committee is made by each committee’s chairman, so McCaul’s sponsorship is effectively all the bill needs.

If the measure is approved by a majority of the committee members and referred to the full House for a vote, as expected, H.R. 1153 will effectively leap frog several other proposals to ban TikTok that were previously introduced in the House and Senate, but haven’t yet advanced through the committee process.

After that, McCaul’s bill would likely pass the Republican-controlled House easily. But its fate in the Democratic majority Senate is unclear.

Despite the bitter divisions between the two parties on nearly every major issue, there is one thing both Democrats and Republicans overwhelmingly support: proactive measures to stem China’s growing global influence. And H.R. 1153 could do that.

In practical terms, the bill would revise a group of rules known as the Berman amendments that were first enacted near the end of the Cold War, intended to shield “informational materials” like books and magazines from sanctions-related import and export bans.

Over time, however, the Berman amendments were expanded into a broad rule that courts interpreted as prohibiting the government from using sanctions powers to block trade in any informational materials, including digital content, to or from a foreign country.

In 2020, TikTok argued successfully in court that it was covered by the Berman amendments exemption when it beat back attempts by the Trump administration to ban its distribution by Apple and Google app stores.

McCaul told CNBC his bill would change this. “Currently the courts have questioned the administration’s authority to sanction TikTok. My bill empowers the administration to ban TikTok or any software applications that threaten U.S. national security,” McCaul said in a statement Monday.

Under McCaul’s bill, the Berman amendments exemptions that have protected TikTok in the past would no longer apply to companies that engage in the transfer of the “sensitive personal data” of Americans to entities or individuals based in, or controlled by, China.

On first reading, McCaul’s legislation appears to be broader than some of the other TikTok bills that have been introduced so far.

Critics and TikTok lobbyists have argued that those prior bills amounted to punishing the company for a crime outside the legal system. They also argue that any ban is tantamount to censorship of content protected by the First Amendment.

“It would be unfortunate if the House Foreign Affairs Committee were to censor millions of Americans,” TikTok spokeswoman Brooke Oberwetter told CNBC in an email Monday.

TikTok is no stranger to rough political waters, having been in the crosshairs of U.S. lawmakers since former President Donald Trump declared his intention to ban the app by executive action in 2020.

At the time, ByteDance was looking to potentially spin off TikTok to keep the app from being shut down.

In September 2020, Trump said he would approve an arrangement for TikTok to work with Oracle on a cloud deal and Walmart on a commercial partnership to keep it alive.

Those deals never materialized, however, and two months later Trump was defeated by Biden in the 2020 presidential election.

The Biden administration kept up the pressure. While Biden quickly revoked the executive orders banning TikTok, he replaced them with his own, setting out more of a road map for how the government should evaluate the risks of an app connected to foreign adversaries.