How to handle TikTok? Here’s an idea that hasn’t been discussed

How should a free and open society deal with an outside force that doesn’t believe in openness? This is the issue posed by TikTok and WeChat. While we share the U.S. national security concerns about these Chinese-owned social media apps and are sympathetic to the arguments for forcing TikTok’s owner, ByteDance, to sell the platform, or to ban it if ByteDance refuses, we understand that, as with the Trump administration’s attempt to ban WeChat, outright bans are likely to face First Amendment challenges in America.

Here’s an idea that hasn’t been discussed, but one that is less inconsistent with openness: Instead of banning TikTok and WeChat, force their parent companies, ByteDance and Tencent, to publicly disclose and acknowledge to users what experts on the political system of the People’s Republic of China know to be the truth — namely, that they are unavoidably beholden to the Chinese Communist Party (CCP). 

The reasons for their being beholden are many, but one worth mentioning is the lack of an independent judiciary that serves as a firewall between state and society. In the United States, the fact that a lone federal judge could prevent the Trump administration from banning WeChat on constitutional grounds is unremarkable. But in China, even if ByteDance or Tencent wanted to resist the regime’s requests for data, they could not, for example, ask a Chinese court to block the request. Thus, the fact that user data on TikTok or WeChat is subject to unique risks resulting from the nature of China’s sociopolitical system cannot be disputed reasonably.

That brings us to our idea. What if U.S. authorities, instead of banning these apps, required them to publicly admit to and disclose those risks as a matter of consumer protection? For example, imagine every screen on TikTok carrying a flashing sign, stating: “Your use of TikTok may be subject to censorship and surveillance by the Chinese Communist Party.”

Requiring warnings for dangerous products is an established and constitutionally sound approach. And while such an approach may still result in legal challenges, the government’s case would be considerably stronger and easier to make. In fact, one can envision that such challenges eventually might result in a trial, in which ByteDance or Tencent would be required to prove, in open court, that they are not beholden to the CCP — something they almost certainly cannot do.

To be sure, such an approach is relatively plodding and wouldn’t be as geopolitically satisfying as an outright ban. But such are the constraints of living in an open society governed by the rule of law. As for practical effectiveness, warnings and admissions wouldn’t prevent pro-CCP censorship and surveillance as thoroughly as a ban would. But they are more likely to survive legal challenges, and thus to take effect sooner and with more certainty.

Most fundamentally, however, such an approach highlights one of the biggest differences between China and the United States. The former doesn’t trust its citizens to make good choices. The latter does.

Times Wang (@timeswang) is the founder of North River Law PLLC, a law firm focused on litigation related to human rights. He is the son of Wang Bingzhang, one of China’s most famous political prisoners.

Jianli Yang (@yangjianli001), a Tiananmen Square massacre survivor and former political prisoner of China, is founder and president of Citizen Power Initiatives for China.