TikTok, having narrowly escaped the clampdown on by the Trump administration, is encountering another wave of the administrative bans ranging from the US, Canada through the Europe, which prohibit official staff from using TikTok at work because of the alleged “TikTok’s potential cybersecurity threats”. This analysis exmaines the U.S. government’s strategy in compressing TikTok’s user base and commercial space through the application of U.S. federal legislation, state government bans, and some public university by-laws. Against the backdrop of rampant economic nationalism in the US, Chinese technology companies are excessively scrutinized and even demonised. The U.S. government and some public universities are suppressing Chinese technology companies' development and survival rights. This suppression not only undermines American advertised status as a free-market economy but may also deter global technology investors from this “land of freedom”.
Recently, three major EU institutions (the European Commission, the European Council, and the European Parliament) have successively issued announcements prohibiting the use of TikTok on official mobile phones and advising that EU staff should uninstall TikTok on their private mobiles.
European Commission Suspends the Use of TikTok
(Source: Official Website of the European Commission)
These EU institutions claim that the suspension protects them from “potential cybersecurity threats”, which is also precisely the reason for the Trump administration’s previous executive orders.
In August 2020, the U.S. government tried to force TikTok to sell its business and assets in the U.S. to American companies through several president’s executive orders on the pretext that TikTok posed a “significant and direct threat to national security”; otherwise, TikTok would be banned entirely in the U.S. As a response, TikTok inc., in tandem with its employees, users and other stakeholders, brought a series of lawsuits and complaints in a timely and proactive manner. They took advantage of the presidential election to successfully prevent the Trump administration’s attempt to ban TikTok in the U.S. TikTok finally had a temporary respite after the Biden administration came to power.
This analysis focuses on the US federal legislation, state government bans, and some public universities by-laws which purport to ban the operation of TikTok. This analysis reveals, for one, how the U.S. government reduces TikTok’s user groups and compresses commercial space in stages and, for another, how the U.S. government exercise the “visible hand” to disrupt market-based order to suppress Chinese technology companies’ development right.
The No TikTok on Government Devices Act issed by the US federal government
The 2023 Consolidated Appropriations Act, signed by Biden, came into effect on December 29, 2022.
United States Consolidated Appropriations Act, 2023
(Source: U.S. Congress’s Website )
The Act authorises $1.7 trillion in annual appropriations to ensure the U.S. federal government has enough funds to operate until the end of September 2023. Once again, the Act cites “national security” as an excuse to include a law entitled, DIVISION R—NO TIKTOK ON GOVERNMENT DEVICES (“Division R” thereafter), which was sponsored by Republican Sen. Josh Hawley (R-Mo.).
In short, Division R explicitly requires the Director of the Office of Management and Budget (“OMB” thereafter) to provide standards and guidelines (“the guidelines” thereafter) for removing TikTok from Federal agencies and government devices within 60 days, in consultation with the Administrator of General Services, the Director of the Cybersecurity and Infrastructure Security Agency, the Director of National Intelligence, and the Secretary of Defense, in accord to the Federal regulations on “Information Policy Coordination and Security”.
Pursuantly, the OMB director officially published the implementation guidance for Division R on February 27, further clarifying the scopes and actions for government agencies to remove TikTok from the devices of Federal agencies and the government in stages and steps:
1) Within 30 days after the issuance of the guidelines, the Federal agencies shall identify the use or presence of the TikTok app on government devices and remove and disallow installations of the app on IT owned or operated by agencies, except in cases of approved exceptions.
2) Within 90 days after the issuance of the guidelines, the Federal agencies shall cease or modify contracts that may include TikTok use and ensure that any issue of new contracts does not use TikTok.
3) Within 120 days after the issuance of the guidelines, the Federal agencies shall ensure that all technology contractors conform to the prohibition on TikTok.
States’ Orders banning TikTok
In response to the US Federal laws and regulations, over 30 state governments have issued different kinds of executive orders as of March 2023, prohibiting state agencies, employees, and contractors from using TikTok on government devices or in various venues.
First State-level Order: Florida Against TikTok
Florida Department of Financial Services (“DFS” thereafter) was the first to issue a directive against using TikTok on 11 August 2020 by citing Article IV, Section 4 of the Constitution of the State of Florida.
Chief Financial Officer (CFO) Jimmy Patronis signed Directive 2020-14 (“the Directive” thereafter), in accordance with Article IV, Section 4 of the Florida Constitution, and Sections 17.30 and 20.121(1) of Florida Statute, hereby issue the following Directive to all employees of the Department:
Section 1. Downloading, installing, or using the Application TikTok on any DFS-issued device is hereby prohibited.
Section 2. Use of the TikTok application on any personal device while in any DFS facility during the workday is hereby prohibited.
Section 3. Violations of this Directive may result in disciplinary action, in accordance with Rule Chapter 60L-36, Florida Administrative Code, and AP&P 5-26, Standards and Procedures of Discipline Career Service Employees.
Vermont Against TikTok
The latest state directive against TikTok is imposed by the State of Vermont, located in the northeastern area of the United States.
On February 16 2023, the Secretary of the Agency of Digital Service Shawn Nailor signed and issued Cybersecurity Standard Update 2023-01.
Cybersecurity Standard Update 2023-01
(Source: Vermont website)
Accordingly, any application from the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited, or an entity owned by ByteDance Limited are prohibited for the Vermont executive branch; all executive agencies, departments, offices, and employees, shall not download or use TikTok on government-owned electronic devices. State agencies must not set up TikTok accounts or fund TikTok posts. Contractors who provide services to state agencies are also prohibited from downloading and using the TikTok application or visiting its website on government-owned electronic devices.
Public Universities Banning TikTok
As the Federal government and state authorities issue regulations to restrict the use of TikTok on government-owned or government-connected devices, 33 public universities have issed by-laws to ban the use of TikTok on university-owned computers and the access to TikTok’s website through the campus network .
University of Florida (UF), for example, published a statement entitled, “University of Florida and the Use of Tiktok”, which was released on the university’s website by Elias G. Eldayrie, vice president in charge of information technology and chief information officer on 12 January 2023.
University of Florida’s Statement Against TikTok
(Source: University of Florida Website)
The statement claims that “23 states have taken actions against TikTok, including Florida, and numerous universities and colleges nationwide are either being required to, or opting to, follow their state's actions. As the university considers additional future steps, we strongly recommend that everyone discontinue using TikTok and remove the app from their devices. Taking this action will help protect your personal information as well as university data.”
The statement also suggests, “The University of Florida continuously evaluates technology vendors and software products and services and maintains a list of approved technologies on UF’s Fast Path solutions website. High-risk software and services that present an unacceptable cybersecurity risk to the university are listed as ‘not permitted for use.’ There is a strong possibility that TikTok will be added in the future to the Fast Path list of software applications not permitted on university devices and networks.”