TikTok - an app with around 170 Million American users - is under intense scrutiny by the U.S. government, including a bill passed by the House of Representatives which issues a threat: "sell or be banned." But how and why can the government do that?
What does this kind of business restriction look like? We talked to Steven Balla of George Washington University to get the low down on regulations and bans in the United States. TLDR:
This episode goes beyond the current legislation, but it's updated from an earlier version which dropped in April, 2023.
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Note: This transcript was AI-generated and may contain errors
Hannah McCarthy: Nick, we've been hearing the word ban an awful lot lately. We sure have, because the government is threatening to ban a wildly popular social media app.
Nick Capodice: You know, I've never been on it myself, Hannah. I don't know.
Hannah McCarthy: If we should advertise that. Well, it could.
Archive: Be the beginning of the end for TikTok. Today, the House of Representatives passed a bill that could ban the popular app. Members of Congress, on both sides of the aisle worry that TikTok poses a national security threat because it's owned by a company based in China.
Archive: But TikTok this is not an attempt to ban TikTok. It's an attempt to make TikTok better. Tic tac toe.
Archive: A winner, a winner to silence this large, massive voice is, frankly, un-American.
Hannah McCarthy: And every time I hear that word ban, I think to myself, what would that even look like? How does something like that happen? Is the government even allowed to do it, and what are the different ways they could get it done?
Steven Balla: So bans could be theoretically enacted by any number of government actors. So you could have Congress through the legislative process, take statutory action. You could also have the executive branch take action. And that would be typically through the president issuing an executive order or an agency of the federal government, like the Environmental Protection Agency or the Federal Communications Commission or the Department of Transportation issuing a regulation. So you have legislation from Congress, executive orders, regulations from the executive branch. And then the third possibility is action by a judge, by a court.
Nick Capodice: All right. So in other words, you can ban stuff.
Hannah McCarthy: This is Civics 101 I'm Hannah McCarthy, I'm Nick Capodice. And today we are talking about how and why the government can ban something. And in this episode, because everyone's thinking it. I'm just saying it. We're going to be looking at TikTok. Oh, and that person who knows what he's talking about, that's Steve.
Steven Balla: I'm Steve Balla, professor of political science and co-director of the Regulatory Studies Center at George Washington University in Washington, DC.
Hannah McCarthy: We talked to Steve for an earlier version of this episode back in April of 2023 when, just like right now, lawmakers were accusing without evidence the Chinese government of collecting data via TikTok for some nefarious purpose because TikTok is owned by a Chinese company. Now, last week, the House of Representatives passed a bill that aims to force TikTok to get sold from that Chinese company, ostensibly in the name of privacy and national security. And if they don't, the app could get banned in the US.
Nick Capodice: Okay, so now that we've established that bans can in fact occur, what does it actually mean? Like with TikTok? What I just like try to open the app and it wouldn't be there.
Hannah McCarthy: Well, Steve brought up China as an example actually, because many other apps that we use all the time are banned over there.
Steven Balla: In the Chinese context, many of our social media apps are banned by the Chinese government. Like literally, Google is told, you know, if you're going to have this product available on the Chinese internet, you have to follow certain rules. Google says, well, we're not going to follow those rules. Well, then it's wiped off if we think about it. Even on the Chinese side, there are plenty of Chinese users of Facebook and Twitter. They of course will use VPNs and all of that. And there of course, there are hundreds of millions of Chinese who don't scale the Great Firewall, but plenty do. And so you can imagine, whatever the instrument might be, that, you know, some entity in the United States government might use to ban a social media platform, that they're still going to be a lot of interest if it's popular among users, to find a way to have access to it.
Hannah McCarthy: Up. A VPN, by the way, is a virtual private network. It encrypts your internet use and basically disguises you online, including your location. So in the event of a ban, people could try to use one to access things banned in their location. So there are a few things the US could do. And what congressional lawmakers are trying to do right now is force a sale of TikTok to a US company. That is what the version of the TikTok ban bill that just passed in the House of Representatives demands. And if that doesn't happen, TikTok would be banned. This could mean it would be removed from app stores. No more downloads, no more updates. Eventually the app just becomes really difficult to use and access. Also, they cannot force all Americans to delete TikTok from their phones, but the government can criminalize its usage.
Nick Capodice: But even though it's criminalized, people could still use it, albeit sneakily.
Hannah McCarthy: Life, uh, finds a way, in this case via VPN.
Nick Capodice: And can we establish why this ban is hanging over TikTok's head right now?
Steven Balla: Anytime you mention China in the current political environment, there's definitely, uh, a fear associated with the threat that China might pose militarily, economically, politically to the United States, to the Western world order, all of that. And so it's a really interesting, uh, tightrope for elected officials to walk between, on the one hand, a very popular platform. And on the other hand, the fact that it's, you know, emanated from a country that many feel is the primary threat to the United States and its view of the world order. So it's a real balancing act for members of Congress.
Nick Capodice: So TikTok, being an app that's owned by a Chinese company, is seen as a threat.
Hannah McCarthy: Congress has pretty much insisted that TikTok is sharing user data with China. Tiktok says it is not that it has protocols in place to protect user data.
Nick Capodice: What allows the US to take action like this, be it Congress or the executive branch or the judicial system?
Hannah McCarthy: Well, a ban is a business restriction, right? But it can't be arbitrary. It has to relate to regulation and regulation. Sounds like a catch all terms. But actually Steve says it is highly specific.
Steven Balla: A regulation is something that's actually defined in a statute called the Administrative Procedure Act of 1946 that defines what a regulation is. In government speak. There's like a specific definition of what a regulation is that separates it from any other instrument of policymaking. Regulations tend to have general impact. So that is a regulation would generally limit a company's discretion to pollute in this way or to sell a product in that way. But a regulation generally has a it's a general future applicability okay.
Nick Capodice: General future applicability. So like don't pollute but we won't get too specific here.
Hannah McCarthy: Yeah. And then there comes the enforcement like say company X is polluting. Well luckily we have this higher level rule that already took care of that possibility. So the government has the power to do something.
Steven Balla: You know, enforcement action has to come out of some preexisting authority. So just like when an agency writes a regulation, it has to have an underlying legislative authority. When an agency takes some kind of enforcement action, it has to be on the basis of some kind of higher level policymaking authority. It could be regulatory authority, it could be legislative authority, because there are cases where Congress writes a law specifically enough so that we know what our obligations are under the law. What unites all of this is the enforcement actions that are taken have to have some prior general policy making authority, either from regulation or legislation, right, or some court decision. So the underlying authority could come from any of the three branches when we think about it.
Nick Capodice: And once you've got that legislation in place, something like a ban could follow or even be a part of that legislation.
Steven Balla: So we could almost have a hierarchy here where you have a law that's the broadest statement of policy coming out of Congress, but leaves a lot unsaid. The authority, then, to say the next step of things is delegated to an agency. They write a regulation that's much more specific than the law, but still has very general applicability. And then once that regulation is in place, it needs to be enforced or implemented. And so if there's a regulation on the books that says a facility can't use this technology to emit pollution into the air, then that's the general statement. The ban or the enforcement action or the sanction is the action that is taken against a particular firm or a facility. That's by virtue of inspection or something else found to be in violation of the regulation. And so like when I. So when I hear words like ban or sanction or enforcement, I tend to think of that's if we're nesting the, uh, dolls here, that's like your legislation regulation and then enforcement and bans and sanctions, penalties, fines, those would all be manifestations of how a regulation would be applied in the context of a specific facility or firm or what have you.
Hannah McCarthy: Of course, that's not the only place rules, regulations and even bans can come from. We'll have that after the break.
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Hannah McCarthy: You're listening to Civics 101, and we're talking about how something like a ban, say, on your favorite social media app, can happen in the United States.
Nick Capodice: So, Anna, I've got that regulation and restrictions and things like bans have many layers with a hierarchy of rules and institutions establishing and enforcing them. But what about something like an executive order when the president unilaterally says, this is just what's happening and it's happening now, because those do pretty much just happen. Can the president simply just institute a ban.
Hannah McCarthy: If a bill doesn't pass in Congress? Technically, yes, he could, but that doesn't mean an executive order won't need justification.
Steven Balla: Say it's an executive order that President Biden says, I think immediately upon it being signed, some, you know, interested party that's hurt by the action will take legal action in the courts. And so then that will start to wind its way through the judicial system. The exact legal nature that that dispute will take will be a function, of course, of what's the rationale that the administration uses to justify the ban? And you know, how that might be open to legal conflict? Okay.
Nick Capodice: And I also suppose there's the fact that executive orders don't have much staying power, like if TikTok were banned by an executive order, that same order could just be unwound, overturned by another president, or even the current one.
Hannah McCarthy: Bingo. Or by the courts. Former President Donald Trump actually signed an executive order in 2020 that would have banned TikTok if it weren't purchased by an American company. That order was challenged in a federal court and never took effect. Now Trump, by the way, reversed his position on TikTok in mid-March 2024. This year, this could be an appeal to TikTok users in an election year. It could be related to Trump having just met with a billionaire conservative donor who is part owner of the app's parent company. Or it could be some other reason. And by the way, it's not just an executive order regulation that could be challenged.
Steven Balla: Oftentimes. If we talk about the context of agencies taking regulatory actions, it will be whether they have the authority in the first place to take that action. So years ago, decades ago, the FDA issued a regulation banning certain advertising and sales practices of cigarettes, especially in the vicinity of schools. And that was immediately met with a legal challenge. That said, irrespective of the underlying merits of, you know, protecting children from nicotine and its addictive properties or whatever, irrespective of all that, the FDA doesn't have the authority to enact that kind of regulation because Congress never gave it the authority. So in that case, the FDA, in justifying its authority, said, well, you know, they basically referenced their statute that, you know, Congress had legislated decades prior and said on this broad charge in this decades-old statute, in effect, we have the authority to take this action.
Nick Capodice: So no matter who bans a social media app, there's a chance that ban will be challenged by whomever it affects.
Hannah McCarthy: And when you've got about 170 million users in the US, many of whom are young people who consume their news on the platform, create content as a business and whom advertisers want to target through social media. The potential for being affected is high. Which brings me to one giant consideration in all of this. The government does care what people think, and it really cares about the economy. So while we're hearing all of this posturing as these bills about forcing TikTok to sell itself to an American tech company or even a straight-up ban are debated in the Capitol, some of it is, you know, just posturing, putting on a show because those lawmakers have other stakeholders, too.
Steven Balla: And we live in a democracy. And, of course, Congress, members of Congress are paying attention to what their constituents are asking for, what they're excited about, what they're fearful of. And so that might drive some of what happens in the policymaking arena. The other thing is we can think about business is maybe a particularly important constituency, because so much of how politicians are evaluated depends on the performance of the economy.
Hannah McCarthy: Something that I found really revealing about this regulation conversation, Nick, is the Venn diagram of consideration going on when the government goes after a company. In the TikTok case, there's the perceived security threat, the generalized fear of Chinese influence. There's broadcasting to this other nation that we will literally ban their access to the American people. And then there are the American people. And where those two meet, that is where law, regulation and yes, bans happen.
Steven Balla: There is a process and a structure to a government actor taking an enforcement action against some company. But that doesn't mean that we still don't live in a democratic political system where officials are elected to enact particular agendas. And so that's certainly the case. So it's a real dichotomy in that on the one hand, you know, the this is a legal administrative process, and the enforcement actions really have to pay homage to the underlying law and administrative regulations. But on the other hand, we this still is all occurring in a political system where actors have specific constituencies they're trying to satisfy, they have their own personal objectives. And so oftentimes, the language of the law, you know, statute regulation can be used in a political way. And so I think we would like to really have a simple separation that there's politics over here. And then there's the administration of law and policy over here. And reality, those two things are totally interchangeable and impossible to separate. So even though there's underlying processes and authorities, they're certainly still subject to political impulses.
Hannah McCarthy: Speaking of politics, just one last thought here. Tiktok is many things to many people, but importantly, the app has functioned as a tool for organizing around social justice and as a venue to talk about things that might be hard to talk about at home, especially among younger people. So when we talk about banning it, there's certainly something at stake here beyond viral dances. Oh, and by the way, this episode has been all about the federal government. But I would be remiss if I didn't tell you that states can do and are doing their own thing with social media. Say it with me. People. State and local government is where it happens. Pay attention. All right, that's it. Thanks for listening.
Hannah McCarthy: This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer. Music in this episode by rhymed clang. Soundtracks. Dirk Delor Kirk, Osimo, Anna moya, modern Monster and Simon Matthewson. If you've got a question about civics government just generally want to know what on earth is going on around here, do not hesitate to reach out. You can submit your questions at civics101podcast.org. Either we'll try to find the answer, or we'll find somebody who knows way better than us to answer it for you. Civics 101 is a production of NHPR, New Hampshire Public Radio.