Knock, Knock, TikTok,
the Government is at the Door: Federal and State Governments are Banning TikTok, Should Lawyers Do the Same? By JUSTIN JOY
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n December 2022, the U.S. House of Representatives Committee on House Administration announced it was banning TikTok from all mobile devices managed 1 by the U.S. House. The federal government as a whole 2 soon followed suit. A new rule issued by the Department of Defense, the General Services Administration, and NASA, currently bans the use of TikTok on personally 3 owned devices of federal contractor employees. A number of states have imposed similar bans on government devices. A new law in Tennessee bans access to the platform utilizing public Internet connections 4 at public higher educational institutions. The state of Montana recently passed a law prohibiting the platform anywhere within the geographical boundaries of the state.
troubling development, it was discovered months later that the physical movements of the reporters covering the TikTok audio leak story had been tracked by ByteDance 8 employees in China.
While support for the various bans on TikTok have been bipartisan in a number of contexts, the discussion about these governmental bans can become political, and in the case of the Montana ban, some are currently subject to constitutional challenge. Politics and constitutionality issues aside, there have been concerning reports regarding TikTok's data security practices. A June 2022 news story reported on discussions in leaked audio recordings from dozens of internal meetings at TikTok’s parent company, ByteDance. In the recordings, discussions are heard about China-based ByteDance employees having repeatedly accessed non-public data about TikTok users 5 in the United States. The story quoted one consultant involved in the review saying, “There’s some backdoor to access user data in almost all” of the internal tools utilized by ByteDance. The story was sufficiently credible and concerning to prompt several responses from federal leaders. FCC Commissioner Brendan Carr called on the CEOs of Apple and Alphabet to remove the TikTok 6 mobile application from their respective app stores, and the Democratic and Republican ranking members of the U.S. Senate Select Committee on Intelligence called 7 on the Federal Trade Commission to investigate. In a
TikTok faces a high level of scrutiny as a result of our parent company’s Chinese heritage, and that scrutiny requires a unique level of transparency—and accountability. . . . . Put simply, Project Texas is an unprecedented initiative dedicated to making every American on TikTok feel safe, with confidence that their data is secure and the platform is free from 9 outside influence.
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For its part, TikTok is sufficiently concerned about the threat to its business from the growing backlash in the U.S. that it has offensively gone on the defensive. One strategy ByteDance has recently pursued is establishing a U.S.-based data center, code-named Protect Texas, which would store data on U.S.-based users, and be segregated from company operations and, presumably access, elsewhere. The opening lines of its Project Texas explainer are telling of the current environment ByteDance acknowledges that it is facing:
TikTok has set up an entire website dedicated to providing information about Project Texas and the standalone entity the company formed, TikTok U.S. Data Security Inc., which ByteDance states is “tasked with managing all business functions that require access to user data identified by the U.S. Government as needing additional protection and ensuring that the content you see in the U.S. version of the app is free from 10 outside manipulation.” The website is complete with numerous FAQs and a “Myths vs Facts” section. With all of the buzz about the bans, a brief pause is warranted to ask, should I have the TikTok app on the same device where client information is stored? One of