The Gist: Banning TikTok (for starters)

This week, there was a surprising turn of events. Specifically, the US political system managed to do something and actually passed a law which included a dramatic TikTok 'ban'.

Neither you nor I own TikTok, so we may leave the question of the financial effect of that decision aside. Regarding the money side of this ban, who (outside of some fuzzily-defined entities in China) cares?

But when it comes to the political and social- and maybe even cultural- impact of this move, there will be aftershocks from this earthquake felt around the world, as well as in the US.

To look at what happened, let's get our terminology right. The law Joe Biden signed on Wednesday doesn't make the TikTok app illegal, or make it illegal to use it. It is aimed at forcing a change in the ownership of that app. After 9 months (extendable to 12 months at the discretion of whoever happens to be President then), if the app's current owners ByteDance have sold it then it can keep operating as before. This is likely designed to makes it appear more like an intervention into corporate control rather than the personal-expression area.

The lawmakers had to take that sort of approach, because just banning a particular speech platform (including the TikTok app itself) has not met with huge success when the courts have examined whether those bans were Constitutional.

Here comes the Law Bit

It is worth taking a look at some of the actual wording of the legislation. You can read it here. It is a very short section, stuck in like an old bus ticket used as a bookmark to a very long unrelated Bill. We start off with the framing of the Heading naming it the "Protecting Americans from Foreign Adversary Controlled Applications Act". We may take a moment of gratitude that nobody appears to be trying to refer to it as the PAFFACAA.

The act creates a special ban on providing or hosting (by way of the Apple App store or Google Play store, primarily) apps under the control of 'Foreign Adversaries'. That's a special legal term, defined in this other government decision here, which says that there are five Foreign Adversary states (plus one Venezuelan politician).

(1) The People's Republic of China, including the Hong Kong Special Administrative Region (China);

(2) Republic of Cuba (Cuba);

(3) Islamic Republic of Iran (Iran);

(4) Democratic People's Republic of Korea (North Korea);

(5) Russian Federation (Russia); and

(6) Venezuelan politician Nicolás Maduro (Maduro Regime).

Taking an Adversarial Approach

Now, this raises a lot of questions that are just taken as read by the text of the Bill. Firstly, are all commercial bodies controlled from each of the five nations named presumed to simply be extensions of those States? In other words, the law appears to assume, as a matter of course, that there is no difference between a company controlled from a 'Foreign Adversary' state and an institution of that state.

Now, you might argue that must be the case, given the particular circumstances of each of those listed nations. And it is hard to deny that if ever a North Korean App became a smash hit across the US (presumably an update of missile command) that it would be unreasonable to presume that the data being quietly collected wasn't available to the Stalinist state.

But what is strange here is that the law skips right past the bit of this chain of thought where evidence of such access is produced to substantiate the plausible assertion and we move directly to responding to it as though it had been settled.

This also establishes a model for foreign states to adopt regarding US and other countries' commercial actors. Apparently, the US legislature and executive have now committed themselves to a surprisingly Bolshevik view of economic action, with those economic actors treated as simply arms of the state. To put it mildly, the unforeen consequences of that precedent seem likely to echo years after the most viral TikTok dance has faded from the memory.

Less a TikTok Ban, more a way of life

What makes this law something that will have long-term consequences is found in H.R.815, Division H, Section 2, paragraph (g), sub-paragraph (3)(B). Because sub-paragraph A, directly before it, is where the TikTok/ByteDance specific language sits. But then it goes on in part B to add a general, permanent, power for the US President to similarly proscribe any other app from a Foreign Adversary State.

Here's the process for prescription of the next app as a Foreign Adversary Controlled App;

a covered company that—
(i) is controlled by a foreign adversary; and
(ii) that is determined by the President to present a significant threat to the national security of the United States following the issuance of—
(I) a public notice proposing such determination; and
(II) a public report to Congress, submitted not less than 30 days before such determination, describing the specific national security concern involved and containing a classified annex and a description of what assets would need to be divested to execute a qualified divestiture.

Let us be clear. Of the five Foreign Adversary states, it is the relationship with China which faces the greatest practical impact from this new clause. In the future Iran may launch a SHEIN-for-hijabs or Cuba a Temu-for-cigars. But we're not there yet.

Bu as of last Wednesday, any successful Chinese app faces effective nationalisation by the US government (albeit of a uniquly US privitised kind) at 30 days notice.

Coda: The Telegram app, much used by far-right propagandists and conspiracy lovers, was founded by two Russians, is the largest social network in Russia and, it is reported, has received investment from the Russian State Direct Investment Fund. If I were running Telegram, I would be feeling a bit sweaty as I read H.R.815, Division H, Section 2, paragraph (g), sub-paragraph (3)(B).

30 days can go by so quickly.