The TikTok Ban Is a Red Herring

Congress is bungling tech regulation yet again.

Illustration by The Atlantic. Sources: Shutterstock; Getty.

Even by the standards of Congress, the past few weeks have been a lesson in hypocrisy. Last Wednesday, President Joe Biden signed legislation that will require TikTok’s Chinese owner, ByteDance, to sell the app or face a ban in the United States—all over concerns that the Communist Party of China uses the app for surveillance. Yet just a few days earlier, Biden had renewed a law synonymous with American surveillance: Section 702.

You may never have heard of Section 702, but the sweeping, George W. Bush–era mandate gives intelligence agencies the authority to track online communication, such as text messages, emails, and Facebook posts. Legally, Americans aren’t supposed to be surveilled through this law. But from 2020 to 2021, the FBI misused Section 702 data more than 278,000 times, including to surveil Americans linked to the January 6 riot and Black Lives Matter protests. (The FBI claims it has since reformed its policies.)

The contradiction between TikTok and Section 702 is maddening, but it points to lawmakers’ continued failure to wrestle with the most basic questions of how to protect the American public in the algorithmic age. It’s quite fair to worry, as Congress does, that TikTok’s mass collection of personal data can pose a threat to our data. Yet Meta, X, Google, Amazon, and nearly every other popular platform also suck up our personal data. And while the fear around foreign meddling that has animated the TikTok ban has largely rested on hypotheticals, there is plenty of evidence demonstrating that Facebook, at least, has effectively operated as a kind of “hostile foreign power,” as The Atlantic’s Adrienne LaFrance put it, with “its single-minded focus on its own expansion; its immunity to any sense of civic obligation; its record of facilitating the undermining of elections; its antipathy toward the free press; its rulers’ callousness and hubris; and its indifference to the endurance of American democracy.”


Congress has largely twiddled its thumbs as social-media companies have engaged in this kind of chicanery—until TikTok. ByteDance is hardly a candidate for sainthood, but who would want to beatify Elon Musk and Mark Zuckerberg? Abroad, America’s surveillance draws much of the same political condemnation Congress is now levying at China. The privacy advocate Max Schrems repeatedly sued Facebook to stop the company from sharing Europeans’ data with the U.S., where the information could be searched by intelligence agencies. He won multiple times. Last year, European Union regulators fined Meta $1.3 billion for transferring Facebook user data to servers in the United States.

Congress’s tech dysfunction extends well beyond this privacy double standard. The growing backlash to platforms such as Facebook and Instagram is not aimed at any of the substantial issues around privacy and surveillance, such as the ubiquitous tracking of our online activity and the widespread use of facial recognition. Instead, they’re defined by an amorphous moral panic.

Take the Kids Online Safety Act, an alarmingly popular bill in Congress that would radically remake internet governance in the United States. Under KOSA, companies would have a duty to help defend minors from a broad constellation of harms, including mental-health impacts, substance use, and types of sexual content. The bill might actually require companies to gather even more data about everything we see and say, every person with whom we have contact, every time we use our devices. That’s because you can’t systematically defend against Congress’s laundry list of digital threats without massive surveillance of everything we say and every person we meet on these platforms. For companies such as Signal, the encrypted-messaging app that political dissidents rely on around the world, this could mean being forced to operate more like Facebook, WhatsApp, and the other platforms they’ve always sought to provide an alternative to. Or, more likely, it would mean that companies that prioritize privacy simply couldn’t do business in the U.S. at all.

Perhaps the biggest protection Americans have against measures such as KOSA is how badly they’re designed. They all rest on proving users’ age, but the truth is that there’s simply no way to know whether someone scrolling on their phone is a teen or a retiree. States such as Louisiana and Utah have experimented with invasive and discriminatory technologies such as facial recognition and facial-age estimation, despite evidence that the technology is far more error-prone when it comes to nonwhite faces, especially Black women’s faces.

But these misguided bills haven’t completely derailed lawmakers pushing real reforms to U.S. mass surveillance. Within days of the House passing the TikTok ban and Section 702 renewal, it also passed the Fourth Amendment Is Not for Sale Act, which closes the loophole that lets police pay companies for our data without getting a warrant. Yet the bill now finds itself in limbo in the Senate.

Regulating technology doesn’t have to be this hard. Even when the products are complex, solutions can be shockingly simple, banning harmful business and policing practices as they emerge. But Congress remains unwilling or unable to take on the types of mass surveillance that social-media firms use to make billions, or that intelligence agencies use to grow their ever-expanding pool of data. For now, America’s real surveillance threats are coming from inside the house.

Albert Fox Cahn is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.), and a technology and human-rights fellow at the Harvard Kennedy School’s Carr Center.

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Albert Fox Cahn