Rafael Henrique | Sweep images | Lightrocket | Getty Images
WASHINGTON – The US House Foreign Affairs Committee plans to take up legislation on Tuesday that would give President Joe Biden 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, HR 1153 is expected to go through the committee on Tuesday.
The bill that could ultimately capture TikTok, which is owned by China’s ByteDance, has only one sponsor, the committee’s recent Republican chairman, Texas Rep. Mike McCaul.
Normally, a bill like this new one, with only one sponsor, wouldn’t go to committee for a vote just days after it was introduced. But the choice of which bills will advance through a committee is made by each committee chair, so McCaul’s sponsorship is effectively all the bill needs.
If the measure is approved by a majority of committee members and referred to the full House for a vote, as expected, HR 1153 will effectively skip over several other proposals to ban TikTok that have previously been introduced in the House and Senate, but have yet to pass 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 split between the two parties on nearly every major issue, there is one thing that both Democrats and Republicans overwhelmingly support: proactive measures to stem China’s growing global influence. And HR 1153 could do that.
In practical terms, the bill would revise a group of rules known as the Berman Amendments that were first passed near the end of the Cold War, intended to protect “information materials” such as books and magazines from sanctions-related import and export bans.
Over time, however The Berman amendments were extended to a broad rule that courts interpreted as prohibiting the government from using sanctions powers to block commerce in information materials, including digital content, to or from a foreign country.
In 2020, TikTok successfully argued in court that it was covered by the exception to the Berman Amendments when it fight back attempt by the Trump administration to ban its distribution of Apple and Google app stores.
McCaul told CNBC that his bill would change that. “Currently, the courts have challenged the administration’s authority to sanction TikTok. My bill would give the administration the authority to ban TikTok or other software that threatens US national security,” McCaul said in a statement Monday.
During McCaul’s billThe Berman Amendment exemptions that have previously protected TikTok would no longer apply to companies that engage in the transfer of “sensitive personal data” from 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 accounts which have been introduced so far.
Critic and TikTok lobbyists have argued that these earlier counts were intended to punish 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 US lawmakers since former President Donald Trump declared his intention to prohibit the app by executive action in 2020.
At the time, ByteDance was looking to potentially spin off TikTok to prevent 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 business and Walmart on a commercial partnership to keep it alive.
However, these deals never materialized and two months later, Trump was defeated by Biden in the 2020 presidential election.
The Biden administration kept up the pressure. While Biden quickly rescinded the executive orders banning TikTok, he replaced them with his own, laying out more of a roadmap for how the government would evaluate the risks of an app linked to foreign adversaries.
TikTok has continued to cooperate with the Committee on Foreign Investment in the United States, which is under the Treasury Department. CFIUS, which evaluates risks associated with foreign investment deals, is reviewing ByteDance’s purchase of Musicallywhich was announced in 2017.
The CFIUS review has reportedly stalled, but TikTok spokeswoman Oberwetter said the company still favors the deal.
“The fastest and most thorough way to address national security concerns is for CFIUS to adopt the proposed agreement that we’ve been working with them for almost two years,” she told CNBC on Monday.
Meanwhile, government officials from the FBI and the Department of Justice have publicly warned about the dangers of using the app, and many states have imposed their own bans.
On Monday, the Biden administration released new implementation rules for a TikTok ban that only applies to federal government-owned entities, which was was passed by Congress in December.
Earlier this month, Sens. Richard Blumenthal, D-Conn., chairman of the Senate Judiciary Subcommittee on Privacy, and Jerry Moran, R-Kan., a member of the Senate Select Committee on Intelligence, said in a letter that CFIUS “should quickly conclude its investigation and impose strict structural restrictions between TikTok’s US operations and its Chinese parent company, ByteDance, including the possible separation of the companies.”
But while the executive branch is reviewing TikTok through CFIUS, McCaul and the GOP-controlled House aren’t waiting for them to act.
“TikTok is a security threat. It allows the CCP (Chinese Communist Party) to manipulate and monitor its users while gobbling up Americans’ data to use for their nefarious activities,” McCaul told CNBC.
If TikTok-related legislation appears to move quickly through Congress, it could spook investors and work to the advantage of some of the company’s biggest competitors.
TikTok has taken market share from FacebookInstagram and Googles YouTube, all of which have seen advertising slow dramatically over the past year.
According to Insider Intelligence, TikTok controls 2.3% of the global digital ad market, placing it behind only Google (including YouTube), Facebook (including Instagram), Amazon and Alibaba.
– CNBC’s Ari Levy contributed to this story from San Francisco.