WASHINGTON, May 26, 2023 — With lawmakers ramping up their rhetoric against TikTok, industry and legal experts are divided over whether a ban is the best solution to balance competing concerns about national security and free speech.

Proponents of a TikTok ban argue that the app poses an “untenable threat” because of the amount of data it collects — including user location, search history and biometric data — as well as its relationship with the Chinese government, said Joel Thayer, president of the Digital Progress Institute, at a debate hosted Wednesday by Broadband Breakfast.

These fears have been cited by state and federal lawmakers in a wide range of proposals that would place various restrictions on TikTok, including a controversial bill that would extend to all technologies connected to a “foreign adversary.” More than two dozen states have already banned TikTok on government devices, and Montana recently became the first state to ban the app altogether.

TikTok on Monday sued Montana over the ban, arguing that the “unprecedented and extreme step of banning a major platform for First Amendment speech, based on unfounded speculation about potential foreign government access to user data and the content of the speech, is flatly inconsistent with the Constitution.”

Thayer contested the lawsuit’s claim, saying that “the First Amendment does not prevent Montana or the federal government from regulating non expressive conduct, especially if it’s illicit.”

However, courts have consistently held that the act of communicating and receiving information cannot be regulated separately from speech, said David Greene, civil liberties director and senior staff attorney at the Electronic Frontier Foundation.

“This is a regulation of expression — it’s a regulation of how people communicate with each other and how they receive communications,” he said.

Stringent regulations could protect privacy without suppressing speech

A complete ban of TikTok suppresses far more speech than is necessary to preserve national security interests, making less intrusive options preferable, said Daniel Lyons, nonresident senior fellow at the American Enterprise Institute.

TikTok is currently engaged in a $1.5 billion U.S. data security initiative that will incorporate several layers of government and private sector oversight into its privacy and content moderation practices, in addition to moving all U.S. user data to servers owned by an Austin-based software company.

This effort, nicknamed Project Texas, “strikes me as a much better alternative that doesn’t have the First Amendment problems that an outright TikTok ban has,” Lyons said.

Greene noted that many online platforms — both within and outside the U.S. — collect and sell significant amounts of user data, creating the potential for foreign adversaries to purchase it.

“Merely focusing on TikTok is an underinclusive way of addressing these concerns about U.S. data privacy,” he said. “It would be really great if Congress would actually take a close look at comprehensive data privacy legislation that would address that problem.”

Greene also highlighted the practical barriers to banning an app, pointing out that TikTok is accessible through a variety of alternative online sources. These sources tend to be much less secure than the commonly used app stores, meaning that a ban focused on app stores is actually “making data more vulnerable to foreign exploitation,” he said.

TikTok risks severe enough to warrant some action, panelists agree

Although concerns about suppressing speech are valid, the immediate national security risks associated with the Chinese government accessing a massive collection of U.S. user data are severe enough to warrant consideration of a ban, said Anton Dahbura, executive director of the Johns Hopkins University Information Security Institute.

“Will it hurt people who are building businesses from it? Absolutely,” he said. “But until we have safeguards in place, we need to be cautious about business as usual.”

These safeguards should include security audits, data flow monitoring and online privacy legislation, Dahbura continued.

Thayer emphasized the difference between excessive data collection practices and foreign surveillance.

“I think we all agree that there should be a federal privacy law,” he said. “That doesn’t really speak to the fact that there are potential backdoors, that there are these potential avenues to continue to surveil… So I say, why not both?”

Lyons agreed that TikTok’s “unique threat” might warrant action beyond a general privacy law, but maintained that a nationwide ban was “far too extreme.”

Even if further action against TikTok is eventually justified, Greene advocated for federal privacy legislation to be the starting point.  “We’re spending a lot of time talking about banning TikTok, which again, is going to affect millions of Americans… and we’re doing nothing about having data broadly collected otherwise,” he said. “At a minimum, our priorities are backwards.”

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Wednesday, May 24, 2023 – Debate: Should the U.S. Ban TikTok?

Since November, more than two dozen states have banned TikTok on government devices. Montana recently became the first state to pass legislation that would ban the app altogether, and several members of Congress have advocated for extending a similar ban to the entire country. Is TikTok’s billion-dollar U.S. data security initiative a meaningful step forward, or just an empty promise? How should lawmakers navigate competing concerns about national security, free speech, mental health and a competitive marketplace? This special session of Broadband Breakfast Live Online will engage advocates and critics in an Oxford-style debate over whether the U.S. should ban TikTok.

Panelists

Pro-TikTok Ban

• Anton Dahbura, Executive Director, Johns Hopkins University Information Security Institute
• Joel Thayer, President, Digital Progress Institute

Anti-TikTok Ban

• David Greene, Civil Liberties Director and Senior Staff Attorney, Electronic Frontier Foundation
• Daniel Lyons, Nonresident Senior Fellow, American Enterprise Institute

Moderator

• Drew Clark, Editor and Publisher, Broadband Breakfast

Anton Dahbura serves as co-director of the Johns Hopkins Institute for Assured Autonomy, and is the executive director of the Johns Hopkins University Information Security Institute. Since 2012, he has been an associate research scientist in the Department of Computer Science. Dahbura is a fellow at the Institute of Electrical and Electronics Engineers, served as a researcher at AT&T Bell Laboratories, was an invited lecturer in the Department of Computer Science at Princeton University and served as research director of the Motorola Cambridge Research Center.

Joel Thayer, president of the Digital Progress Institute, was previously was an associate at Phillips Lytle. Before that, he served as Policy Counsel for ACT | The App Association, where he advised on legal and policy issues related to antitrust, telecommunications, privacy, cybersecurity and intellectual property in Washington, DC. His experience also includes working as legal clerk for FCC Chairman Ajit Pai and FTC Commissioner Maureen Ohlhausen.

David Greene, senior staff attorney and civil liberties director at the Electronic Frontier Foundation, has significant experience litigating First Amendment issues in state and federal trial and appellate courts. He currently serves on the steering committee of the Free Expression Network, the governing committee of the ABA Forum on Communications Law, and on advisory boards for several arts and free speech organizations across the country. Before joining EFF, David was for twelve years the executive director and lead staff counsel for First Amendment Project.

Daniel Lyons is a professor and the Associate Dean of Academic Affairs at Boston College Law School, where he teaches telecommunications, administrative and cyber law. He is also a nonresident senior fellow at the American Enterprise Institute, where he focuses on telecommunications and internet regulation. Lyons has testified before Congress and state legislatures, and has participated in numerous proceedings at the Federal Communications Commission.

Drew Clark (moderator) is CEO of Breakfast Media LLC. He has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

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WASHINGTON, March 28, 2023 – Senator Mark Warner, D-Virginia, said Thursday that Congress needs to do more to ensure a fund intended to replace technologies in the country’s communications networks deemed a national security risk is replenished.

“We need more,” Warner said, responding to a question during his keynote speech at an event hosted by law firm Hogan Lovells about open radio access networks. Warner is the chair of the Senate select committee on intelligence and subcommittee on national security, and is a member of the budget committee and global competitiveness.

“[I’m] trying to make sure that that becomes enough of a priority,” Warner added. “We need to do it.”

The Federal Communications Commission was granted $1.9 billion for the rip and replace program as required by the Secure Networks Act. The program is intended to reimburse providers for removing perceived problematic gear, largely from Chinese companies like Huawei and ZTE, from their networks.

But the FCC has already identified a roughly $3 billion shortfall in the funds because requests from applicants far exceeded the amounts available. In January, the commission said in a report that nearly half of respondents required to submit status reports on their replacement efforts complained about a lack of funding.

Industry associations, including the Competitive Carriers Association and the Rural Wireless Association, have raised the issue to the FCC for months. The fact that the omnibus spending bill didn’t include rip and replace funding apparently “stunned” the Telecommunications Industry Association.

Warner’s comments came during a discussion on open and interoperable radio access networks, or O-RAN, which experts and officials said would lead to better security for the country’s networks. O-RAN is expected to allow providers use different vendors in their radio networks instead of relying on proprietary technologies from specific companies.

Specifically, Warner touched on the National Telecommunications and Information Administration’s $1.5 billion Innovation Fund grant program, which is principally intended to promote open technologies and to seek alternatives to Chinese wireless products, which are attractive because of their relatively lower prices. The funds were provided by the Chips and Science Act of 2022.

But Warner warned that funding could get lost in other priorities.

“We need to make sure that this money is spent on O-RAN deployment and not simply cyber training under a different name, so I still got work to do with the administration,” Warner said. “I need your help and support on that,” he told the crowd of experts, which included global telecoms.

Warner said there needs to be more American company involvement in international standard-setting bodies, especially for O-RAN, so that there are existing alternatives to problematic company products.

He also said there needs to be more test sites for O-RAN, such as in India. “We need more markets to try this out,” he said of O-RAN.

“We need to push, both domestically and around the world, on more test beds to try out this technology as we see it rolled out…we need to test it.

“The [Chinese Communist Party] is not playing for second place.”

WASHINGTON, February 27, 2023 – China has no reason to retaliate against U.S. export controls because it might lead to more restrictions on products which would not be in the Chinese Communist Party’s interests, said the president of US-China Business Council at a web conference on Wednesday.

In October, the Commerce Department prohibited the exportation to China of certain high-functioning chips necessary for supercomputers and moved to prevent other countries from providing China with certain semiconductors made with American technology.

The Commerce Department also limited American citizens’ ability to work with Chinese chip facilities. The restrictions were billed as a national security imperative and designed to limit the development of next-generation, chip-dependent Chinese military technology.

At the same time, the U.S. raised concerns that China would retaliate.

“China has a good number of tools or legal tools, which they could retaliate, but that’s hard,” said Craig Allen, president of US-China Business Council, a non-profit that promotes trade between the two countries. “If they do retaliate, for example, against a chip company or manufacturing equipment company, a tool company, or another type of company, then that will lead to further restrictions on the inflow of technology and a product into China. And so, they have not found a way to retaliate, that suits their interest and I hope it stays that way.”

However, China also has remarkable speed and scale, Allen said. He considers China’s manufacturing speed and scale of accessing the market as “quite formidable.”

“Their dominance in the processing of rare earths, for example, is something that we should be concerned about,” according to Allen.

Other experts on the panel had similar opinions as well.

The most advanced artificial intelligence chips go into supercomputing and equipment for the production of semiconductors, according to Jimmy Goodrich, vice president of global policy at the Semiconductor Industry Association. The export control policy is limited to the “most cutting edge technology,” Goodrich said.

“The vast majority of chips don’t depend on and applications don’t depend on those advanced technologies,” said Goodrich. “Many of those are still unrestricted, because they’re ubiquitous, China has a lot more stronger domestic capability to produce them.”

But China may already be cognizant that development of chips is a globally integrated endeavor.

“It’s too complex, too global, too interdependent for one country to be able to produce all these technologies on their own,” Goodrich said, emphasizing the importance of multilateral approach. And that could be why, Goodrich added, China is hesitant to retaliate.