Why the TikTok ban won't solve the US's online privacy problems

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Unknown

Hello. And welcome to decoder. I'm Nelai Patel, editor in chief of the Verge, and decoder is my show about big ideas and other problems. Today we're talking about the TikTok ban, quote unquote, the TikTok ban, the bill that will force TikTok to either sell itself or shut down in the United States. And we're going to talk about how years of congressional inaction on a federal privacy law helped lead us to this moment of apparent national panic about how algorithmic social media generally, and TikTok specifically the law that Joe Biden signed that would force TikTok to either sell itself or shut down, arrived with an almost shocking suddenness.

Nelai Patel

The House of Representatives passed their version of the TikTok ban last weekend by stuffing it into a foreign aid package for Israel and Ukraine. That particular tactic of jamming sometimes totally unrelated legislation into a time sensitive so called must pass bill is often the quickest way, or, these days, the only way, to get something in front of both chambers of Congress and signed into law. And the strategy worked. Last Tuesday, the Senate, which did not want to stall yet more aid to overseas us allies, voted to approve the foreign aid package, and President Biden signed it into law Wednesday morning, an achievement. That both sides of the aisle hailed as a victory.

Unknown

But the fight over TikTok is just beginning. This new bill kept intact the compromise that TikTok parent company ByteDance, could avoid a us ban by selling itself to another entity. But ByteDance, response to the bill is that its a ban no matter what anyone says, and that it will fight the US government in the court system. That fight could get drawn out and ugly. The TikTok drama is framed around China, but when you drill down, it really.

Has a lot to do with privacy. Law, or more specifically, the fact that the United States doesnt have one. Most of the concerns around TikTok are around its stewardship of personal data, what. Is the company doing with all of our data? And what ultimately is TikToks true relationship to the chinese government?

Nelai Patel

On top of that, theres debate around something called algorithmic transparency. Why does TikTok show us what it does? And does that make the platform ripe for things like election interference, influence operations, or other risks to democracy? At any point, Congress could turn its attention from banning one single app and pass federal privacy legislation or an algorithmic transparency law. Both of these ideas have been debated for years.

There are even options. A federal privacy framework now has real momentum for the first time in a long time, in the form of something called the American Privacy Rights act or APRA. But the TikTok ban could complicate those efforts, and Congress has a lot of incentive to drag its feet during election year. This is a messy, complicated discussion that. Goes back years with lots of players.

And lots of drama. So to help break it down, I invited Verge senior policy reporter Lauren Finer. Lauren has been closely covering the effort to ban TikTok for years now, and she's also watched Congress fail to pass meaningful privacy regulation for even longer. We're going to go over how we got here, what this means for TikTok, and efforts to pass new privacy legislation and what might happen next. All right, the TikTok ban and privacy law in the United States.

Unknown

Here we go.

Nelai Patel

Lauren Finer, welcome to decoder. Thanks for having me. There is a lot to talk about. We started talking about this episode thinking we were going to talk about privacy legislation and the renewed momentum to pass a privacy bill. And then the United States government went and banned tick tock along the way.

Today, like earlier today, Joe Biden signed the bill that would force TikTok to sell, divest itself or shut down. What is going on there? What happened last weekend to make this move so much faster? What does this bill actually say? What's the status of things?

Unknown

Yeah, it definitely feels like everything in the tech policy world just turned upside down in the past week. Basically what happened is both chambers of Congress managed to pass this bill as part of a broader foreign aid package that would effectively ban TikTok unless its China based parent company ByteDance manages to sell it within a year. Saturday we got the House vote. Yesterday we got the Senate vote, and then this morning Biden signed it into law. Talk about the politics of this for 1 second.

Nelai Patel

The House had passed a sort of straight up and down version of this ban a while ago, and it went nowhere in the Senate. Biden said, I'll sign it if it hits my desk. Then they extended the timeline where they had to divest it or sell it to a year. Right. It's nine months, plus three months of discretionary time for whoever is president if there's momentum.

What changed about the politics of it? Because the thing that really gets me. Is they passed a TikTok ban today, and none of them talked about it. Joe Biden, his signing statement for the bill was all about aid to Ukraine and Israel and Gaza. Nothing about TikTok.

No one seems to be focused on it. It's just like a thing they did in the background. What's going on with the politics of this? Back when the House passed the TikTok legislation as a standalone bill, I mean, that was the headline, right? Because that was the one piece of legislation that was on the table, kind of on its own, essentially for an up or down vote, and it passed pretty overwhelmingly in the House.

Unknown

Then it went over to the Senate and over there. Some senators were really for this legislation, and some were, you know, a little bit more non committal. So it seemed like, you know, maybe this is just going to stall out. Maybe they'll just take a lot of time going through the legislative process and everyone will forget about it, and then the election will happen and it'll be way in the rear view mirror. But instead, what happened was the House decided to bundle this legislation with a foreign aid package.

So that's money to allies that a lot of lawmakers really want to send. And so it really incentivized Congress to pass this bill because it was just one piece of this enormous package of legislation. And because of that, and because they extended the timeline for divestment to something that was more palatable to more lawmakers, it was able to pretty much sail through. You've been a Capitol Hill reporter for a long time. You know that Congress is wheeling and dealing at all times for the person who isn't so much in the machinations of Congress.

Is this fair play? Is this a thing that is normal, or is this banning TikTok is unpopular, but providing aid to Ukraine and Israel is popular? So we're just gonna slide it in. Under the table packaging bills together in this way is pretty common. Basically, there's two ways, essentially that a bill can make it into law, and one way is the first way they tried to do it with tickets talk, which was pass a standalone bill, have it go through both chambers on its own, and then have the president sign it.

That's one way to do it. But obviously, there's a lot of moving parts in there. It's pretty easy to just throw sand in the gears of any kind of step in that process. So, you know, we don't really see so many bills passing that way. What we often see is bills packaged together with some must pass piece of legislation.

So, you know, you'll hear about this a lot of the times around the National Defense Authorization act or, you know, some must pass budget bill or something to keep the government running. And lawmakers will just stuff other pieces of legislation in there so that it all moves together, because then it becomes more of a calculus of, you know, are we going to fight over each individual piece of legislation in here, and which pieces of legislation do we really care about? Would we really not want to see become law? Those are the ones that are really going to be at the top of the list for negotiation. So it's a must pass bill.

Nelai Patel

It gets layered into it. They kind of avoid the political fallout. But there is already fallout, right? Like, TikTok is out there. The CEO of TikTok Chu is on the app saying, we're going to fight this.

We're going to file a lawsuit. They're trampling your rights. Do lawmakers seem fazed by any of this? Not really. I think that's the simple answer.

Unknown

We heard Senator Mark Warner, who leads the Senate intelligence Committee on the floor yesterday, saying, like, look, you know, we know a lot of young Americans really like this app, and we're not trying to ban it. We want to have a different ownership structure because we think there are national security issues. And that's been the line from a lot of lawmakers who really do say that they are looking for a different ownership structure that they think will be in the interest of us national security. Now, you know, TikTok is saying that's not the case. And certainly there've been some lawmakers whose rhetoric kind of goes beyond that.

And obviously, that's what TikTok is pointing to. And they're making this an issue about free speech and free expression on their platform. Let's talk about the actual mechanics of the bill. Then TikTok again, they're saying this is a ban. Listen to the lawmakers.

Nelai Patel

They're saying it's a ban. Make no mistake, it's a ban. It's kind of up to them, right? I mean, the choices in front of them are sell the thing or shut it down. They have to choose.

What does the bill actually do? What is the mechanism by which it will ban TikTok, if that is the outcome? TikTok's parent company, ByteDance, would have this period of up to twelve months to divest TikTok in order to allow it to keep operating in the US. Otherwise, basically how this ban would take effect is that essentially App Stores would not be able to distribute or update the app. So maybe you'll still have the app on your phone for a little bit.

Unknown

If ByteDance chooses not to sell and the app is actually banned, but it's eventually not going to update, it's not going to really work after some period of time. So the regulation is not pointed specifically at ByteDance, it's pointed at the App Stores. Pretty much, yeah. How do Apple and Google feel about this? I haven't really seen much from them.

I think they're probably just going to keep out of it. If the government tells them you have to do this, then I think they're going to follow. But, yeah, ultimately somewhat. Bytedance's decision, if they want to sell and then, you know, if this bill is upheld, then, yeah, the App Store companies are going to have to follow the law. I feel like we've been in the circus before.

Nelai Patel

In the Trump years. There was a rumor that a Trump rally was sparsely attended because of a TikTok prank. No one knows that was true. But then the follow on rumor was that Trump heard this. He got all mad on his plane coming home from the sparsely attended rally and said, I'm banned in TikTok.

And then there was a furious rush. Where Microsoft was going to buy it. Or maybe Walmart was going to buy. It, and Oracle did project Texas where. They store the data, and maybe Oracle would buy it in the end.

What's different between that time and this time? I think there were basically two differences in terms of the substance. One difference is just the mechanism that they chose to use to carry out this kind of idea of getting TikTok to either change its ownership structure or face a band. The Trump administration was doing it under essentially just another statute. And then the second thing was the Trump administration was doing it through the executive branch.

Unknown

And in some ways, that's kind of inherently weaker than going through Congress. You know, courts are much more likely to uphold congressional action than executive action. You know, so I think that was something that just was a more inherent weakness in that version. Does TikTok have to sell to a us based company? Oracle, Microsoft, Apple, whoever?

That's not a requirement. It's basically just they can't be owned by another company that's controlled by a foreign adversary. So they can't really sell to, like, you know, a russian company, for example. But, you know, they could sell to a european company. They could sell to a lot of different companies.

But, you know, realistically, I think it's a decent bet that there's a lot of us companies that would be the ones able to actually carry out this deal. Byte dance has obviously put out a response. They say they're going to sue. Is there a substance there? Do we know how they're actually going to respond?

Nelai Patel

Or is it just sort of smoke and fire right now? I mean, I would take them at their word that they're going to present a legal challenge. This is an existential threat, so I don't see why they wouldn't. I think it remains to be seen what way they choose to go after that. But I think the ones that seem likely are they'll probably raise First Amendment issues with the law saying that their own First Amendment rights are being violated.

Unknown

And those are if it's users that engage on the platform. And they also might say, this is a bill of attainder. This is a piece of legislation that's targeting and singling us out as one company, rather than a broad law that's applied to many companies. The law does name Bytedance and TikTok. It sure does.

But in theory, it could apply to other similarly situated companies in the future. So I want to come back to TikTok. We'll talk about what happens next and who I buy and all that sort of thing. But inside of this is a big. Question about what evidence lawmakers saw of something bad happening with TikTok.

Nelai Patel

And it's sensible. Chinese control other bad things that can happen on social media platforms. Basically what scared them into banning TikTok. And I think the main thing is that there's an app like TikTok that became dominant in the United States. We have no federal restrictions, data collection or privacy, or algorithmic recommendations.

For a variety of reasons, we don't have those things. And so those policy problems just run into each other. We've been talking about both those policy problems for years. We've been yelling at Mark Zuckerberg and Jack Dorsey until they turned into weird statues, and then Zuckerberg, like, emerge from the statue as some sort of MMA fighter. None of that's fixed because we banned TikTok, right?

Unknown

That's right. Yeah. I mean, it really. I think by design, in a way, it really deals with this one, you know, singular issue of TikTok's ownership by a China based parent company. You know, it's really not getting into everything else and all the other issues there are in the tech space.

It's really dealing with this one discrete problem. Is there any sense on the hill that, okay, we solved the TikTok problem. That was the big bad. That's China brainwashing all the kids. Now we should come back to privacy, and we should come back to algorithmic transparency and all the other stuff we've been talking about.

I think there is somewhat of that sense. I don't know if it's one thing leads directly to the other, but I think we are seeing a rise of privacy being back on the table, which we haven't seen for a long time. And I think, in a sense, it would certainly strengthen lawmakers arguments with the public, perhaps, that we really are tackling all these different aspects of technology that we're concerned about and not just singling out one company. To me personally, the big danger of TikTok is the absolute opaque nature of its algorithm. I don't know why TikTok shop is suddenly trying to sell me off brand DeWalt batteries, but it's trying to sell me that every single day, and it will not rest until I burn my house down.

Nelai Patel

There's also a lot of concerns about privacy, but data brokers in this country are running rampant. If you want to steal a bunch of Americans personal information, you can just do it. That seems like a problem that is not specific to TikTok, and the algorithmic transparency issue is specific to TikTok, but obviously spreads across all the other platforms. It feels like we're pretty close on. A privacy bill for the first time in a long time.

Tell us about the state of privacy law right now, and then tell us what's happening with a potential bill. Privacy seemed to be an issue that had, you know, just kind of simmered out for a while. You know, back in 2022. This became a big thing all of a sudden, because there was a new bipartisan framework that was supported by a bunch of really important lawmakers in the House and Senate that seemed like, you know, a big push for comprehensive privacy legislation, and then that kind of petered out. Then we get to this period where, you know, we're talking about TikTok, we're talking about all these things that are not privacy, and then suddenly we get a new privacy bill that's not yet a full bill.

Unknown

It's a discussion draft from the Senate Commerce Committee Chair Maria Cantwell and House Energy and Commerce Committee chair Kathy McMorris Rogers. And they worked together to create this new comprehensive privacy bill that's really promising because of these two chairs leading it. And in particular, Chair Cantwell had been the one who didn't sign on to the earlier version of comprehensive privacy reform. So to have her on this legislation really indicates maybe we could go somewhere. There'S realistic momentum on a privacy bill.

It might actually happen, which has not seemed realistic for a long time to set the stage. What's the current framework of privacy law in the United States right now? We really just have a patchwork of legislation. There are certain, like, specialized privacy laws, like, you know, HIPAA, that everyone's familiar with for health data. Are they familiar with it in broad strokes.

And then you have just, like, a series of state laws that are attempting to step in where the federal government hasn't, to provide more general privacy laws for people's online information. But there's really no national framework for just general data privacy. So that's really the state of where things are in the US today. One thing I always think about is terms of service agreements. I lead a sparkling social life constantly thinking about terms of service agreements.

That's where people kind of expect the privacy action to be, right? They're going to sign up for Instagram, and Instagram is going to have a privacy policy, and that means something or doesn't mean something, but there's nothing uniformly regulating any platform's privacy policy. All these sort of random state laws that are weaker and stronger in some places than others. Yeah, pretty much. I mean, I think a lot of times those privacy laws, you know, I would really think of them as, like, protecting the business from legal liability and just kind of covering the ground on, you know, what sort of things they collect and trying to provide some level of information to the consumer.

But, you know, I think we all know that no one really reads those privacy policies or those terms of service. People really just click through, and that's something that regulators have contemplated cracking down on more as well. There are privacy bills in some of the states. I think it's 15 states have privacy bills. Are those effective?

Do we see that people in some states have their privacy better protected than people in other states? I think a lot of these laws are relatively new. They are providing more privacy rights than have ever existed for Americans before. So I think there's just a lot more that people in those states are entitled to when it comes to their data. And I think even more importantly, maybe it's actually pushing Congress to really take this more seriously, because the more and more states that are passing their own privacy laws, the more businesses that have to comply with them are saying, all right, well, you know, we'll really get on board with a national law because this is just really difficult to comply with.

That's one piece of the political puzzle that I think is underappreciated, that as you get 50 different laws in 50 different states, it just becomes harder to do business across the country. Is that providing any real momentum to the federal bill? Are these companies lobbying for a federal bill to avoid that outcome, or are they just dealing with it? No, I think that's absolutely what's happening. California was an early mover here.

It used to be we're only really talking about California and their privacy law. Now we have 15 states with their own privacy laws that companies are having to deal with. That's a much different landscape than we've seen in the past, and I think is starting to, you know, form this reality that lawmakers have kind of known was coming for a long time but wasn't as tangible. There's just this huge patchwork of laws that businesses have to comply with, and they are hearing from businesses that this is really difficult, especially for smaller and lesser resource businesses. Yeah, and I think everybody wants to see some smaller companies compete with the big companies, and reducing their compliance costs just seems like part of the picture.

One more question about this. The states have really been leading the way on Internet regulation for the past several years now because Congress is so paralyzed, because attacking big tech is a winner for any politician at any level. There are a lot of laws now about regulating the Internet in various states, in various directions, at various levels of efficacy overall. Is that providing pressure on Congress to act? Is this dynamic playing out more systematically?

That, okay, there's a weird patchwork of laws. We need a federal law to come in and preempt them all so we can continue running our businesses. Is that happening in all of the cases or just in privacy? I think we see it most in privacy because this discussion has been around for a long time, and we've seen states really take up the issue of privacy for a while now. But I think we're starting to see it in other areas too.

Other states are contemplating how to deal with AI and deepfakes. States are thinking about even TikTok. We've seen Montana move forward with a version of a TikTok ban, so I think we are seeing some version of pressure. But nothing has risen to the level of pressure from the states as much as privacy, just because of how long it's been around and how much we are seeing tangible laws around it. We need to take a quick break.

Nelai Patel

When we're back, Laura and I talk about the new proposed federal privacy bill, what it does, and what might happen next.

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Nelai Patel

It's da da da.

We're back with verge senior policy reporter Lorne Finer discussing Congress's latest attempt at a federal privacy law and what's different this time around. So let's talk about this bill. There is a bill in Congress with some momentum and some co sponsors, one of which is important to understand and talk about. It's the American Privacy Rights Act. APRA rolls right off the tongue, what is in the American Privacy Rights act?

Unknown

This bill is still a discussion draft, so that means it wasn't yet formally introduced, but essentially it was authored by Senator Maria Cantwell, who is the chair of the Senate Commerce Committee, and Congresswoman Kathy McMorris Rogers, who leads the House Energy and Commerce Committee. Basically, there's a few different things that this bill would do. Overall, one of the big things it would do is kind of focus on having large companies minimize the data they collect in the first place. So rather than this other framework that you might hear about sometimes called notice and consent, where it's more about having consumers just read a notice and consent to having their data collected, they're really trying to emphasize that companies should really only collect data when it's really necessary to what they're doing. So that by itself would kind of lower the amount of data that's collected on consumers in the first place, and then it would give consumers the ability to correct or export their data, they'd be able to opt out of targeted advertising and out of algorithms for important life decisions.

So things like whether they get certain employment or housing, things like that, that could have important implications on civil liberties. And it also would importantly give individuals a right to sue if they think that their rights are being violated, but also give companies the chance to correct any information or missteps before that happens. So this is the list of things. Every privacy bill has sort of looked like this. We should lower the amount of data.

We should give people more controls. We should let you opt out of. Various kinds of algorithms, especially for things like housing and insurance and education, where the bias in the algorithms is just very easy to show over and over again. And we want those things to be as equitable as possible. Why is this bill the one that seems like it has momentum?

You know, first, it's worth rewinding a little bit back to 2022, when we had another bill that rolls off the tongue, the ADPPA, which was the American Data Privacy and Protection act. And that bill was a pretty popular bipartisan framework. It was introduced by the leaders of the House Energy and Commerce Committee at the time, and the republican ranking member on the Senate Commerce Committee at the time. And that bill was, you know, pretty similar in a lot of ways, and, you know, would do a lot of the same things that the APRA would do. What's different here is, you know, a little bit about how the preemption of state laws works and how the private right of action or the ability of individuals to sue would work.

But I think one of the key things that's different is who's leading the bill. And, you know, Senator Maria Cantwell, who's the head of the Senate Commerce Committee, that is, the committee of jurisdiction here, kind of stood in the way of the ad PPA before. And so it's really significant that she is leading the charge on this particular proposal. So if people are not familiar with Maria Cantwell, she's a Democrat from Washington. She is the chair of the Senate Commerce Committee.

Why did she stand in the way of the previous bill? Senator Cantwell would basically say that she felt like the enforcement mechanisms weren't strong enough in the ADPPA. She really was pushing for a strong privacy bill. But I think, you know, a lot of people who have worked on this were a little bit confused about, you know, what exactly it was that was keeping her from this, because, you know, any bipartisan bill, I think we all know, is going to end up being a compromise. And we're working from a place where there's zero national privacy standard, and states are continuing to move forward even more quickly with their own state privacy laws.

So I think it was kind of confusing for some advocates in this space why she was standing in the way. But, you know, she would point to things like enforcement mechanisms and preemption as areas that she thought could be strengthened. You've been covering Congress for a long time. You've got a powerful committee chair who says, I need better enforcement provisions in this bill if I'm gonna let it through. I know you all want it, but here's the concern that I'm saying out loud, better enforcement provisions.

Why didn't they just add better enforcement provisions? I think sometimes behind the scenes, there's different negotiations that happen, and, you know, different leaders will have different sticking points where they put their foot down and say, we don't want this to happen. Whether that's, you know, because of lobbying by companies, whether that's because of some, you know, deeply held belief about a certain aspect of law, I'm not quite sure why they didn't just add that in. But I would imagine that there were some other lawmakers who maybe wouldn't have been on board with that if they were to change some of that. At the time that kind of fell apart.

And now you kind of have this new coalition trying to form around this other framework. So does the new bill, the aPRa? Does it have the enforcement provisions that Cantwell wants? It does. So it would basically let consumers sue for their data rights in a shorter timeframe than the ADPPA would have allowed.

It does have kind of a mechanism to keep this from being. From companies from being sued, just like over and over and over again, because it lets the companies cure whatever misstep they might have made or that they're being accused of before the lawsuit actually goes through. But it also really empowers users to sue for their data rights and would grant them really significant ability to seek damages. There are some concerns about this bill, though, right? The EFF has a long list of things it would want changed.

Some privacy advocates are saying, look, the state bills are actually stronger. We should see how those play out. Are those concerns real? Are they illusory? Is it people trying to get too.

Much from an already sort of compromise process? With any bipartisan compromise? It's not. Not everyone's gonna get what they want. So I think that's kind of what you see with this bill.

You know, some privacy advocates seem pretty supportive of it, but maybe want a few tweaks here and there. Some are a little bit less supportive. But I think overall we're seeing positive reaction to the idea that a national privacy law is back on the table. So it's back on the table. We have to do how a bill becomes a law.

Now, because you said it hasn't been formally introduced. It's been publicized. It has to get formally introduced. I'm sure there's a series of votes other lawmakers have to support it, including House Republicans, who are charitably described as a bit chaotic right now. They do have the majority, though.

Nelai Patel

Walk us through that process. How likely is any of that to happen at every stage? You know, even though this is a discussion draft at this point, I think we can feel pretty confident that it will begin to move pretty quickly through the legislative process, given that both the authors of this bill lead their respective committees in the House and Senate and therefore can set the agenda and say when a bill comes to a vote in their committee. We just saw a legislative hearing earlier this week that included the privacy discussion draft in the House. Once the lawmakers decide to introduce the bill, they can pretty quickly move forward with hearings and voting on the bill itself to pass it along.

Unknown

At that point, then it's up to the leaders in the House and Senate to bring it to the floor. Assuming that it passes the committee level, that can be a little bit up in the air because there's a lot of different things that are lobbying for floor time. So, you know, maybe it ends up in a must pass package that kind of ushers it through. Maybe House and Senate leaders decide that it's a priority to put these bills on the floor, given that they're bipartisan nature. But that's really probably one of the bigger questions is what happens once it leaves the committee level?

Is there support from the White House that we've heard? Would Joe Biden sign a bill like this if it hit his desk? I don't think we've seen explicit statements about that yet, but I think privacy is something that would generally align with some of the principles that the Biden administration has talked about before. You know, we know they're concerned about AI and kids online safety, and, you know, privacy is kind of seen as an underpinning of a lot of the things that people are concerned about with those things as well. Let's get real for 1 second.

We might not have a House speaker by May 1. Right. The Republicans are in pure open internal warfare over some of the aid packages for Ukraine and Israel. It's also an election year. This is kind of a political risk to pass a big privacy bill that will enable new lawsuits.

Is this politically realistic this year? Look, I've been covering tech policy for about five years. Privacy has always been a discussion since I've been covering it and probably well before, and we have not gotten a national privacy law. So I would not hold my breath that this is going to pass this year, no matter what lawmakers are saying. But, you know, there are some promising signs and, you know, who is actually sponsoring this legislation?

The political will around it, and the fact that, you know, it's something that generally both sides want. Maybe there is some pathway for this to make it through. But again, like I said, I wouldn't necessarily hold my breath for it. Let me ask you about sort of. The other side of the tech policy world.

We know lawmakers have some interest. We know that there's some cautious enthusiasm for this bill. What is the tech industry saying? Because they spend a lot of money lobbying. They have probably killed some of these bills along the way.

Is the vibe on this one from the Googles and Facebooks of the world positive, negative, neutral? What's the situation? Yeah, I think we're seeing kind of a mixed reaction, I guess. I think Microsoft came out in support of the proposal. Microsoft never met a proposed regulation it doesn't like.

I just want to say that for the audience, they are probably the sharpest lobbyists out there right now. Yes, that's definitely true. Then, you know, you see like, net choice, which is a big group that represents a lot of the social media companies, they kind of say, like, this is like a good start, but there's a long way to go. They say it fails to create a true national standard and doesn't cover all data collectors equally. So I think we're going to see a mixed bag of reactions here.

And I think as things get closer to introduction and passage through the committee or otherwise, we might see some of these statements more tailored to the key issues that arise. I keep thinking about the ads that meta ran on a bunch of publications for years that just said, Facebook welcomes regulation. Those ads were basically to preempt regulation, Facebook welcomes regulation. And that got a bunch of people to go talk to Facebook and then nothing happened. And it seemed like Facebook got what it wanted, which is to be able to say, we welcome regulation without ever being regulated.

Is this when the clock hits zero on that strategy? Like, you can only say you welcome regulation for so long until you have to actually welcome the regulation? Yeah, I mean, I think that's a strategy that we see kind of over and over with legislation that impacts business. A lot of tech companies have come to realize it's better to get out ahead and say, we support regulation, and here are the kinds of regulations that we support, because they don't want to end up with a bill that they don't like coming down to a vote. So I think a lot of tech companies have gotten a little bit more wise and mature about, you know, we have to be involved in this process from the get go, or there's still going to be regulation made about us that we didn't participate in.

So that also means that once, once regulation actually comes to the table, they can take out their red pen and say, yeah, we like this, this, this, but not this, this, this, and kind of throw some sand in the gears. Has a federal privacy law just been in the machine for long enough that this bill or some version of this bill has gone through that process and is more realistic? I'm contrasting this to antitrust right now, where any antitrust effort is met with the most furious gnashing of teeth possible. Like, there isn't some middle ground over there, and maybe that's just gonna take a long time. We have to figure it out.

But on privacy, it feels like, yeah. There'S a middle ground. Like, we've been talking about it enough that there are some solutions that everybody agrees on. Now, that's probably a good way to think about it. One thing that I think is sometimes important to remember is that lawmakers, they sit on a lot of different committees.

You know, it could be easy for someone who's more of, like a subject matter expert to be like, you know, doesn't every member of Congress know about this? But really, it's just, you know, members of these committees that are, you know, in the weeds on this week to week or month to month, and, you know, other members of Congress are working on other things and not as in the weeds. So I think privacy is maybe something that has permeated out of the committee at this point a little bit more, because I think there's just a more general awareness about it. We're aware of these state laws. We're aware of online data privacy generally.

Antitrust is a little bit of a wonkier topic that takes a little bit more understanding and studying from lawmakers to grasp and understand the nuances of. But, yeah, I think that's probably fair to think of it that way, that maybe this has been around long enough that lawmakers at least have a general idea of some of the key discussions here. We have to take another quick break. When we're back, Lauren and I get into how the TikTok ban plays into. The latest privacy push.

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Nelai Patel

We're back with verge senior policy reporter Lauren Finer to discuss how the TikTok ban might affect bills around privacy and algorithmic transparency. If you look at a privacy bill as one component of the set of problems with TikTok, this bill might address that component, right? We don't know what TikTok is doing with our data. We want people to be in more control of it. We certainly want to know where that data is going.

Unknown

Here's a bill like this will let people sue TikTok if something goes awry, and they'll have more control. The other part of it is the big systemic question of the Internet right now, which is, what are these algorithms doing to us? And there's not a lot regulating that or even requiring the companies to be transparent about that. Is there any action over there? Because that feels like the other part of the system that everyone is constantly talking about whether the platforms are owned by american companies or chinese companies.

Yeah, that's definitely another big part of the issue. I think there is a bill out there called the algorithmic justice and online platform Transparency act that would try to provide more transparency around algorithms and how content is amplified. But right now, we don't really have a lot of insight into why certain things are pushed and others aren't. That's really kind of within a company's own discretion. And I think there's also, you know, a push in Congress to give researchers more access to information that maybe it's fair for a company not to want just the general public to have access to for its own business reasons, but would be helpful for researchers to be able to access so that we can understand more about how these things work and the impact that they have on us.

Are those bills anywhere close to reality? Chart them against the privacy bill. The privacy bill is at 75%. I'm not even sure if it's at 75. Let's say it's at 75.

Where are the algorithmic justice bills? I think they are at certainly a lower level, but I could see them being packaged together with something like a privacy bill. If they're attached to a larger piece of legislation and they move together, I think that could kind of quickly change. It's hard to say because these aren't as, like, sweeping proposals necessarily as a privacy bill that might be given, you know, time on the floor on its own, but they could be kind of, like, pinned onto that and we could see them move more quickly. Let's end where we started.

The Senate has passed the foreign aid bill. It has the tick tock ban, quote unquote, in it. What happens next? Who might actually buy tick tock? And is that going to get totally sidetracked by a lawsuit?

That is one of the next big questions right now. The companies that come to mind initially are companies like Meta and Google that have their own kind of versions of TikTok, competitors of these short form videos like reels and shorts. But anyone who's been at least loosely following antitrust in the past few years would probably know that that would be a really big uphill battle to usher through a deal like that through the FTC or DOJ, to have these big social media companies buy another enormous social media company that was kind of like one of the only new upstarts to challenge their power. So that seems unlikely. We did see that former treasury secretary Steve Mnuchin was interested in putting together an investor group to buy the company.

Maybe that's one option. Maybe there's going to be other groups that we don't know about yet that come out and say we're willing to do this. I think another question is, what will there be for sale? China would have to approve if the algorithm were for sale, because that's essentially a high technology export. But could Bytedance potentially sell its brand, its content, its user base?

Perhaps, but that would be worth a lot less than selling it with the algorithm. So I think that remains a really big question. Alongside all of this is TikTok's promise. To go to the courts. They're threatening to make some sort of First Amendment argument.

Nelai Patel

I just keep coming back to the sort of core mechanism of the ban here, or the bill, which is that it regulates Apple and Google. Can TikTok even go and say, look, they regulated Apple and Google and kicked us off the store. Now we have a First Amendment problem. What does that argument look like? My understanding is that they'd basically be arguing that the government is trying to get rid of TikTok, and in doing so, they're limiting TikTok's own First Amendment rights, and they're also limiting the First Amendment rights of its users that will no longer have this space for expression.

Unknown

And it seems like that's an argument that the courts could take seriously. But I think what will happen here is that it has to be weighed against the national security concerns that the government is saying. It's seeing. A lot of the times courts really, they don't want to be in the business of determining what's a national security issue. So I think that's going to be a really difficult thing for the courts to weigh, and that's really the key issue here.

Nelai Patel

It does strike me that should we allow a foreign power any amount of control over an algorithm this persuasive is what the government will say loudly and often. But it does seem like tick tock has fought off some of these bans in Montana and other states where the. States were like, get out of here. And tick tock has won, or at least fought them to a draw. I think that's definitely significant.

Unknown

But on the other hand, I think there's a difference between a state legislature doing something like this and the US Congress doing it. We're talking about an issue of national security that's within kind of Congress and the federal government's purview. So I think these are kind of different things. And for Montana to enact a ban that is supposed to only impact people in that state that's really tricky. To do it across the US is kind of an entirely different matter.

Nelai Patel

Do you think this sort of noisy sale process and whatever lawsuits happen and whatever young people get mad about during the election cycle will increase or decrease the momentum for privacy bills and other kinds of tech regulation? At this point, it makes sense for lawmakers to look at privacy after passing this legislation. You know, if they've been saying this whole time that, yes, privacy is an issue that we see with TikTok and with other technology companies, and, you know, we don't have a national privacy law on the books and we want to change that. So I think nothing has really changed about that. In particular, the bill that they passed is very narrowly targeted at this one issue that they see, and I think that still leaves a lot of other tech policy issues on the table for them to tackle.

All right, Lauren, it has been a rocket ride in tech policy. I think we're going to spend a year having you come on the show and tell us what's going on. And then on top of it, there's net neutrality bill about to pass. So I suspect we're going to be hearing from you quite a lot here in decoder. Thanks for coming on.

Unknown

Thanks for having me.

Nelai Patel

Thanks again to Lauren for joining us on Decoder. We hope you enjoyed it. If you have thoughts about this episode or what you'd like to hear more of on these new Decoder explainers, you can email us@decoderge.com. Dot. We really do read all the emails and we love the feedback.

You can also hit me up directly on threads. I'm echolus 1280. Hilariously, we have a TikTok. It's ecoderpod. It's a lot of fun.

If you like Decoder, please share it with your friends. Subscribe wherever you get your podcasts. Decoder is a production of the Verge and part of the Vox Media podcast network. Today's episode was produced by Kate Cox and Nick Statt. It was edited by Kelly Wright.

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Why the TikTok ban won't solve the US's online privacy problems

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1: Introduction to the TikTok Ban

2: Mechanisms and Political Strategy

3: Implications for TikTok and Privacy Legislation

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