Legislation to require ByteDance divestiture expected to pass full Senate

Today, U.S. Senator Maria Cantwell (D-Wash.), Chair of the Senate Commerce Committee, and Senator Mark R. Warner (D-Va.), Chair of the Senate Intelligence Committee, underscored the importance of the Protecting Americans from Foreign Adversary Controlled Applications Act, which is set to pass the Senate along with the foreign aid supplemental package. In a colloquy this afternoon, the senators laid out the national security threats posed by ByteDance’s ownership of TikTok, including how its algorithm controls and manipulates information seen by U.S. users. Sen. Cantwell made clear that Congress is not acting to punish the app but to prevent foreign adversary espionage against Americans, members of the U.S. military and government personnel.

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Floor Remarks as Delivered:

Sen. Cantwell: I want to address that technology should be a tool to help solve our greatest challenges to improve our human conditions, and drive innovation, and support economic opportunity. 

But foreign adversaries use technology for social and political control. There is no individual right to privacy or freedom of speech in these autocracies. U.S. media companies are not allowed to operate in China. In fact, China leads the world in using surveillance and censorship to keep tabs on its own population and to repress dissidence. 

Governments that respect freedom of speech do not build backdoors into hardware or software, into apps on phones, or into laptops.  

Backdoors allow foreign adversaries to target vulnerable Americans based on their username or sensitive data. Backdoors allow foreign adversaries to use proxy bots to bombard vulnerable populations – Americans – with harmful content or even to blackmail people. 

The U.S. Department of Justice has stated, “hostile foreign powers are weaponizing bulk data and the power of artificial intelligence to target Americans.” 

I do not want technology in the United States used this way. I want the United States to work with our most sophisticated technology countries – like-minded democracies – places like Japan, South Korea, our European allies, and set the global standard for technology and data protection. 

I want to see a technology NATO, one in which our allies come together and say there cannot be a government backdoor to any hardware or software if it wants to see a global adoption rate.  

We should have a trusted framework for cross-border data flows as has been discussed by the Organization for Economic Co-operation and Development and the G7. And criteria for trusted data flows should include commitments to democratic governance, the rule of law, and the protection of property rights and free speech. 

I believe in trade, and I want trade. And I believe that business is business. But business is not business when foreign adversaries weaponize data, weaponize technology, and weaponize into approaches that hurt Americans. 

I want to yield to my colleague, the Chairman of the Senate Intelligence Committee, for his perspective on why this legislation before us is so important. 

Sen. Warner: Mr. President, first of all, I want to agree with my friend, the Chairwoman of the Commerce Committee, on the issues she has already outlined, whether it be the need for aid for Ukraine, support for Israel, humanitarian aid for Gaza, our necessary funding that's taking place for the Indo-Pacific, and obviously legislation that we’ve all supported on fending off fentanyl. 

But I want to particularly commend her for her comments she's made on these technology issues. Over the last seven years, as Vice Chair and now Chairman of the Intelligence Committee, I've spent an awful lot of time looking at what I think is one of the most significant intelligence failures of the last half-century. And that was the failure we had to anticipate and disrupt Russian efforts to meddle in our elections. 

Since that time though, we've seen a wide spectrum of foreign adversaries who've tried to copy the Russian playbook. But don't just take it from me. A succession of now-declassified intelligence assessments have described the ways in which foreign adversaries like Iran, like the People's Republic of China, and others are seeking to stoke social, racial, and political tensions in the United States. They are seeking to undermine confidence in our institutions, and our election systems, and even to sow violence amongst Americans. 

The extent to which our adversaries have exploited American social media platforms is a matter of public record. The Committee I Chair has held many hearings, open hearings, on the failure of U.S. social media platforms to identify the exploitation of their products by foreign intelligence services. 

As senator, along with the senator from Washington, I've been one of the leading critics of these platforms for their repeated failures to protect consumers.  And while the exploitation of U.S. communication platforms by adversaries continues to be a serious issue, at the end of the day, our platforms are at least independent businesses. They do not have a vested interest in undermining our basic democratic system. 

The truth is though, I can't say the same for TikTok – the fastest-growing social media platform in the United States, whose parent company, ByteDance, is based in the PRC. 

Even as U.S. social media platforms have fumbled in their response to foreign influence operations, there was never any concern that these platforms were operating at the direction of a foreign adversary. Again, I cannot say the same for TikTok. 

I yield back to Senator Cantwell. 

Sen. Cantwell: Well, I thank Senator Warner for his perspective as Chairman of the Intelligence Committee and his hard work. He and I both introduced legislation more than a year ago, trying to give our government the tools to deal with this issue. 

In 2020, India concluded that TikTok and other Chinese-controlled apps were national security threats and prohibited them. And as a result, Indian TikTok users migrated to other platforms, including Google's YouTube, and Indian small businesses found other ways to operate on other platforms. 

This supplemental contains the Protecting Americans from Foreign Adversary Controlled Application Act. Congress has a non-punitive policy … [purpose] in passing this legislation. 

Congress is not acting to punish ByteDance, TikTok or any other individual company. Congress is acting to prevent foreign adversaries from conducting espionage, surveillance, maligned operations, harming vulnerable Americans, our servicemen and women, and our U.S. government personnel. 

Sen. Warner: I would like to expound a little bit on what Senator Cantwell has just said. Because it has been made absolutely clear that a number of Chinese laws require Chinese companies and their subsidiaries to assist PRC security agencies and abide by the secret and unchallengeable government directives. 

The truth is, these Chinese companies at the end of the day, they don't owe their obligation to their customers, or their shareholders, but they owe it to the PRC government. 

In the context of social media platforms used by nearly half of Americans, it's not hard to imagine how a platform that facilitates so much commerce, political discourse, and social debate could be covertly manipulated to serve the goals of an authoritarian regime, one with a long track record of censorship, transnational repression, and promotion of disinformation. 

In recent weeks, we've seen direct lobbying by the Chinese government indicating perhaps more than anything that we will say on the floor here how dearly Xi Jinping is invested in this product. A product, by the way, that's not even allowed to operate in the Chinese domestic market itself.  

Story after story over the last 18 months have exposed the extent to which TikTok has grossly misrepresented its data security and corporate governance practice, as well as its relationship with its parent company. Countless stories have refuted the claims made by TikTok executives and lobbyists that it operates independently from its controlling company, ByteDance. 

We've also seen documented examples of this company surveilling journalists, and we've seen corresponding guidance from leading news organizations, not just here in America, but across the world advising their investigative journalists not to use TikTok. These public reports, based on revelations of current and former employees, also reveal that TikTok has allowed employees to covertly amplify content. 

Unfortunately, those who suggest that the U.S. can address the data security and foreign influence risks of TikTok through traditional mitigation have not been following TikTok’s long track record of deceit and lack of transparency. 

I yield back to Senator Cantwell.  

Sen. Cantwell: I thank Senator Warner for his comments because I find most disturbing that they used TikTok to repeatedly access U.S. user data and track multiple journalists covering the company. Researchers have found that TikTok restricts the information that Americans and others receive on a global basis.  

As of December 2023, an analysis by Rutgers University found that TikTok posts mentioning topics that are sensitive to the Chinese government, including Tiananmen Square, Uyghurs, the Dalai Lama, were significantly less prevalent on TikTok than Instagram and most comparable social media. 

Foreign policy issues disfavored by China and Russian governments also had fewer hashtags on TikTok, such as pro-Ukraine or pro-Israeli hashtags.  

Here are some of those hashtags on TikTok. 

The example of Tiananmen Square, which we all know was an example of students standing up to the military – and yet… there are 8000% more Tiananmen hashtags on Instagram than on TikTok. The Uyghur genocide… there are 1970% more posts about that on Instagram than on TikTok.  

And my personal favorite, just because I had the privilege of meeting the Dalai Lama here in the Capitol – 5520% more times the Dalai Lama is mentioned on Instagram than on TikTok.  

And pro-Ukraine, 750% times more hashtags on Instagram than on TikTok about Ukraine and support for Ukraine.   

I think that says it all in this debate today. Are we going to continue to allow people [foreign adversaries] to control the information…[using] an export-controlled algorithm…and China-[based] source code?  My colleagues and I are urging this de-weaponization by … saying that this [TikTok] … should be sold. Now, I know that the Chinese have an export control on that, but Congress believes that you have to have an adequate time to sufficiently address this issue posed by our foreign adversaries. 

That is why the legislation before us is for ByteDance to sell its stake in TikTok …. [W]e think a year is ample time to allow potential investors to come forward, for due diligence to be completed, and for lawyers to draw up and finalize contracts. 

This is not a new concept, to require Chinese divestment from U.S. companies. The Committee on Foreign Investment in the United States required Chinese divestment from the hotel management platform StayNTouch, a health care app called PatientsLikeMe, from the popular LGBTQ+ dating app Grindr, among other companies. And even after Chinese owner divestment from Grinder in 2020, Americans had continuity of service on these platforms.  

So, Mr. President, I turn it back to my colleague.  We are giving people a choice here to improve this platform and have the opportunity for Americans to make sure they are not being … [manipulated] by our foreign adversaries. 

I ask the president if I could enter into the record the House Resolution originally on this legislation. 

The Presiding Officer: Without objection.  

Sen. Cantwell: Thank you. I turn it back to my colleague, Senator Warner, and again thank him for his leadership.  

Sen. Warner: Thank you, I commend the Senator from Washington for her leadership going through the disparate effects of TikTok versus other social media platforms.  

Let’s acknowledge, I mean, TikTok I think realized they had a problem over a year ago, so they tried to develop a response. It was something called Project Texas to allegedly address concerns relating to TikTok's handling of American data.  

However, Project Texas would still allow TikTok's algorithm, source code, and development activities to remain in China. They would remain so under ByteDance control and subject to Chinese government exploitation. Project Texas allows TikTok to continue to rely on engineers and back-end support from China to update its algorithm and source code needed to run TikTok in the United States.  

How can they say there's not the possibility of interference? This reliance on resources based in China, again, makes it vulnerable to Chinese government exploitation. That's why Project Texas does not resolve the United States’ national security concern about ByteDance's ownership of TikTok. 

Now, let me acknowledge, and I think that Senator Cantwell and I worked on a more, frankly, comprehensive approach, that in a perfect world we might have been debating today. But we work in the world of getting things right. So I stand firmly in support, as Senator Cantwell has, of taking action now to prevent the kind of intelligence failure we first saw back in 2016. 

Again, as the Chair of the Commerce Committee indicated, this is not some draconian or novel approach. For decades, we've had systems in place to examine foreign ownership of U.S. industry. We've seen even more scrutiny in instances where foreign buyers have sought to control U.S. telecom and broadcast media platforms.  

Frankly, this country should have adopted a similar regulatory approach for social media, again, something Senator Cantwell and I worked on, which has considerably more scale and barriers to entry than broadcast media had a decade ago. 

But this bill is an important step in fixing that glaring gap. It goes a long way towards safeguarding our democratic systems from covert foreign influence – both in its application to TikTok and forward-looking treatment of other foreign adversary-controlled over future online platforms.

Before I yield back, I want to make clear to all Americans, this is not an effort to take your voice away. For several months now, we've heard from constituents how much they value TikTok as a creative platform. And as the maker, yesterday was the four-year anniversary of my once-viral tuna melt video on another social media platform, I can kind of understand why TikTok has become such a cultural touchstone.

To those Americans, I would emphasize this is not a ban of the service you appreciate.

Many Americans, particularly young Americans, are rightfully skeptical. At the end of the day, they've not seen what Congress has seen. They've not been in the classified briefings that Congress has held, which have delved more deeply into some of the threats posed by foreign control of TikTok. 

But what they have seen, beyond even this bill, is Congress' failure to enact meaningful consumer protections on big tech, and may cynically view this as a diversion, or worse, a concession to U.S. social media platforms.  

To those young Americans, I want to say we hear your concern. And we hope that TikTok will continue under new ownership, American or otherwise. It could be bought by a group from Britain, Canada, Brazil, France. It just needs to be no longer controlled by an adversary that is defined as an adversary in U.S. law.  

With that, Mr. President, I yield the floor, urge that we take action on this item. And again, I appreciate the great leadership of the Chairwoman of the Commerce Committee on working with our friends in the House to bring this important legislation to the floor of the Senate.