Gopal Ratnam | (TNS) CQ-Roll Call

The House is set to vote on a bill that could effectively ban TikTok from Americans’ smartphones, potentially posing a dilemma for House Republicans as former President Donald Trump, who first tried to ban the app in 2020, backpedals from his position.

The measure goes to the House floor after a 50-0 vote in the House Energy and Commerce Committee on March 7, just 48 hours after the bill was introduced. The extremely compressed timeline followed a classified briefing with U.S. intelligence and law enforcement officials that lawmakers said led them to fast-track the measure.

The legislation would require TikTok’s Chinese owner ByteDance to divest its U.S. subsidiary within six months of the law taking effect. It also would give the president the authority to deny other social media apps owned and operated by foreign adversaries access to U.S. users unless they sever ties to their foreign owners.

The restrictions would apply to any app with more than 1 million annual users. TikTok has about 170 million American users.

The House could vote on the measure as early as Tuesday under suspension of the rules that would require a two-thirds majority, according to Majority Leader Steve Scalise, R-La.

Backers of the TikTok measure say the goal is not a ban but a forced divestiture by ByteDance because of concerns that top Chinese government officials have access to U.S. users’ data and could use such access to poison public opinion.

Even with House passage, the bill would still need to get through the Senate, and, if enacted, would likely have to overcome legal challenges raising free speech issues. Another big hurdle is Trump, who on Monday seemed to pour cold water on the idea, telling CNBC that if the app disappeared from Americans’ smartphones, it would make young people “go crazy.”

Sen. Maria Cantwell, D-Wash., chair of the Senate Commerce Committee, which would have a key role in the measure passing in the Senate, said she’s examining provisions to ensure that they meet the free-speech threshold.

“I’m very concerned about foreign adversaries’ exploitation of Americans’ sensitive data and their attempts to build backdoors in our information communication technology and services supply chains,” Cantwell said in an email, referring to broader concerns about China’s efforts. “These are national security threats and it is good [that] members in both chambers are taking them seriously. I will be talking to my Senate and House colleagues to try to find a path forward that is constitutional and protects civil liberties.”

Some free-speech advocates say the measure as it’s worded violates First Amendment protections.

“The First Amendment does not permit the government to suppress the media on the grounds that it contains disinformation,” Nadine Farid Johnson, policy director at the Knight First Amendment Institute at Columbia University, said in an interview.

At the height of the Cold War in 1965, the Supreme Court held in the Lamont v. Postmaster General case that the “First Amendment protects Americans’ right to receive information from abroad … even if that information at that time was communist propaganda,” Farid Johnson said.

Congress and the Biden administration can better address the issue of Americans’ data flowing to other countries by passing a comprehensive federal data privacy legislation, she said.

An effort by state lawmakers in Montana to ban TikTok from the phones of the state’s residents was blocked in November by U.S. District Judge Donald Molloy, who ruled that Montana’s TikTok ban “oversteps state power” and “likely violates the First Amendment.” The ban, which was to go into effect in January, has been halted temporarily pending a trial.

A similar fate awaits the TikTok bill if Congress passes it, Farid Johnson said.

While the legality of the bill remains in doubt, the politics around it may be shifting.

The Trump switch

Trump recently met with billionaire hedge fund investor Jeff Yass, whose fund Susquehanna International Group LLP has more than a $30 billion stake in TikTok parent ByteDance, The Wall Street Journal reported.

Asked by CNBC if he changed his views on TikTok after meeting with Yass, Trump said TikTok never came up during their meeting. Speaking at a recent event hosted by the Club for Growth in Florida, Trump described Yass, a benefactor of the Club, as “fantastic,” The New York Times reported.

In the CNBC interview, Trump said that banning TikTok would strengthen Facebook. “I consider Facebook to be an enemy of the people,” he said.

Trump Media & Technology Group, meanwhile, owns his own social media company, Truth Social, launched as a rival to social media companies including Facebook and Twitter after Trump was banned from the sites. Trump personally could potentially profit if the company goes public as planned this year.

Trump issued an executive order during his presidency saying that China’s access to Americans’ data gathered via TikTok could be used by Beijing to spread disinformation and at the time pushed ByteDance to divest. That pressure resulted in TikTok agreeing to store the data of American users within the U.S. in a deal involving Oracle Corp. and Walmart Inc., which together would own 20 percent of the U.S. entity. That proposal was never approved by U.S. agencies.

Trump’s efforts at blocking Apple and Google from carrying the TikTok app on their stores were also halted by courts.

With a large number of young users, TikTok offers the potential of reaching first-time voters.

But most politicians and campaigns don’t fully understand how to use the app, said Larry Huynh, partner at Trilogy Interactive, a digital advocacy and advertising agency, and president of the American Association of Political Consultants.

Huynh said elected officials often don’t understand TikTok partly because the app does not allow direct political advertising, unlike other social media platforms. Despite the ad ban, there’s both conservative and progressive content on TikTok. Young users of the app use it to search for news delivered in a different format, and even as a search engine, Huynh said.

Given the “general concern about young voters’ appetite and enthusiasm for this election” in November, “part of the equation is how do we engage them and TikTok is an important aspect of that,” Huynh said.

President Joe Biden’s reelection campaign has a TikTok account and is using it to reach out to voters. Biden on Friday at Joint Base Andrews said he would sign the bill if it reaches him.

Given the legal challenges and change in tune by Trump, “nothing is going to happen before the election,” Huynh said about the TikTok measure.

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