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The Biden administration wants TikTok sold or banned. Is that constitutional?


The U.S. government is giving the Chinese owners of TikTok an ultimatum. The app is owned by ByteDance, which is based in Beijing. And the Biden administration is demanding that ByteDance sell TikTok or face a nationwide ban. The administration says it's a national security risk for China to have access through TikTok to the personal data of Americans. But how high is that risk? And would a ban be constitutional? Anupam Chander is a professor of law and technology at Georgetown University. He is with us. Good morning.

ANUPAM CHANDER: Good morning.

PFEIFFER: Has the U.S. government proven that TikTok is a national security risk?

CHANDER: I think, right now, the case is in the hypothetical. Because it's based in China and because China has laws that require local companies to share data under the existing system with intelligence services, the worry is that it might be forced to share data of Americans with the Chinese government.

PFEIFFER: So it's a hypothetical. Is it a hypothetical paired with any evidence so far?

CHANDER: No, not as far as the United States government has shown either to the public or to the courts.

PFEIFFER: But in your view, it is a legitimate concern?

CHANDER: It's certainly a legitimate concern, but it's one that we share with lots of apps. There's lots of different ways to obtain data from Americans. And TikTok is only one of a host of different ways.

PFEIFFER: And we certainly know that many United States companies have apps that collect data. But it is a different concern when a foreign country may be collecting that data.

CHANDER: Absolutely.

PFEIFFER: The Trump administration also tried to ban TikTok but lost in court. How is this attempt by Biden different? Or is it different?

CHANDER: I think it is a little different. The focus in the Trump administration seemed to be to pass it into the ownership of the hands of a company which was run by his political friends. This is hopefully not that effort. And I don't think the Biden administration will say it has to be done in 45 days, which was the Trump administration's guidelines, or said to be a very American corporation, which I think was the language that President Trump used. So I think this will be different. But it still feels similar and surprisingly similar in other ways as well.

PFEIFFER: Would there be other or better ways to deal with the security threats apps like this pose than banning them? And by the way, as we've seen in places like Iran, there are ways to get around bans. You find a private VPN, for example.

CHANDER: Yeah. So Americans may turn to VPNs, which would be unusual. It would feel like someplace like Iran or China...

PFEIFFER: Right (laughter). Right.

CHANDER: ...Indeed, when we're looking for VPNs to avoid an app ban. But there are other ways, which include, for example, making data not saleable on the third market without permissions, etc. So we have lots of ability to gather data just by purchasing it on the open market, not to mention auditing and other systems to make sure that the data is well-protected.

PFEIFFER: And you may only have time for a yes or no answer to this. But is there any precedent for a forced sale of a foreign-owned company?

CHANDER: Yes. So we did require apps like Grindr, which is a dating app, to be sold. But those apps pose different kinds of espionage risks than this app.

PFEIFFER: Thank you very much. Quite interesting. That's Georgetown law professor Anupam Chander. Thank you.

CHANDER: Thank you. Transcript provided by NPR, Copyright NPR.