CFIUS Is Nation's Best Option to Address TikTok, Expert Says
The U.S.’s best option to address potential national security risks arising from TikTok is through a foreign investment review rather than an outright ban, said James Lewis, a technology policy expert with the Center for Strategic and International Studies.
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In a Nov. 14 commentary for CSIS, Lewis said a ban on transactions with TikTok would be “largely symbolic,” and any move to prevent Americans from providing or accessing content on TikTok likely wouldn’t withstand a court challenge. President Donald Trump in 2020 tried to ban transactions with ByteDance (see 2008070024), the parent company of TikTok, an action that was blocked by a U.S. court (see 2009280012).
The Biden administration could stand on “firmer footing” if it uses the Committee on Foreign Investment in the U.S., Lewis said, adding that ByteDance “would be unlikely to win a court challenge to a decision by CFIUS, as unhappy foreign plaintiffs never successfully challenge these U.S. government decisions in CFIUS.” Lewis said courts usually defer to the president on CFIUS matters.
If the administration uses CFIUS, the committee could impose various “oversight conditions” on ByteDance to mitigate any potential national security risks stemming from China’s access to TikTok’s collection of U.S. personal data, Lewis said. This could include requiring the app to answer to an “oversight board of former U.S. government officials,” which could be given the authority to “review the algorithm’s cueing function and to track data flows.” But using CFIUS “almost guarantees a regulatory tussle with China,” Lewis said, and could lead to Chinese retaliation against U.S. companies.
The path forward for the Chinese app remains unclear. Brendan Carr, one of five commissioners on the Federal Communications Commission, recently called on the U.S. to ban TikTok (see 2211010053). Sen. Josh Hawley, R-Mo., earlier this year said CFIUS should require TikTok to cut ties with ByteDance and all other Chinese companies (see 2209190068).
If the U.S. takes action against TikTok, Lewis believes, any measures “will not include a ban” on accessing the app’s content, arguing a CFIUS route makes the most sense. “Making continued operation of TikTok in the United States contingent on ByteDance following these conditions and forcing ByteDance to divest if it fails to observe from these requirements may not pacify those who want to ban TikTok,” Lewis said, “but it is likely the best that can be done.”