TikTok Ban Faces Obscure Hurdle: The Berman Amendments

TikTok and other social-media platforms weren’t around at the time, but the protections were later expanded to effectively extend First Amendment-type protections to foreign digital media and were invoked by TikTok attorneys in their successful 2020 lawsuit to block then-President Donald Trump’s attempt to ban downloads of the video app.

The dilemma for lawmakers now: how to write legislation to prevent China’s government from influencing content on TikTok or other Chinese social-media apps, and gathering data on users, without shutting down global exchanges of content—or inviting retaliation against U.S. platforms and media.

“Other nations around the world could then create similar constructs that could be used against American companies,” said Sen. Mark Warner (D., Va.), the Senate Intelligence Committee chairman, who is developing legislation to curb or ban social media from potentially hostile countries. “My goal is not to replicate the Chinese approach—that’s the opposite of a market-based system.”

Some lawmakers, including Sen. Marco Rubio (R., Fla.) and Reps. Mike Gallagher (R., Wis.) and Raja Krishnamoorthi (D., Ill.) as well as Sen. Josh Hawley (R., Mo.), have introduced legislation to enact a nationwide ban on TikTok. Each would address the issue by providing a narrow waiver of the Berman amendments protections specific to TikTok. 

Other lawmakers, led by Mr. Warner and Rep. Michael McCaul (R., Texas), say broader changes may be needed to ensure that other apps under foreign ownership don’t exploit the Berman amendments, which were named after their sponsor, former Democratic congressman Howard Berman of Los Angeles.

That includes what might happen if a foreign app based in an adversarial nation such as China were to gain traction in the U.S. on its own—which could exempt it from security review—instead of through a foreign acquisition. 

The national-security review of TikTok now under way was triggered because Beijing’s ByteDance Ltd. gained entry into the U.S. market by buying a social-media site here called Musical.ly, later changing the name to TikTok.

The Berman amendments create an exception to the International Emergency Economic Powers Act, or IEEPA, for informational materials, however, making them “the biggest problem right now” in adopting a measure to ban TikTok and similar apps based in potentially hostile foreign countries, according to an aide to Mr. McCaul, the incoming chairman of the House Foreign Affairs Committee.

Mr. McCaul said in a statement that “legislation to address [TikTok’s] malign practices must be thoughtful and durable.”

Changing the Berman amendments also faces political challenges. The principle behind the amendments is popular even with those who want a change. 

“I think in general the bar on regulating speech internationally back and forth is good,” said Mr. Hawley. “You don’t want the president to use [federal law] to regulate communications outside the United States.” 

TikTok has been negotiating with U.S. officials for more than two years on measures aimed at preventing the Chinese Communist Party from influencing content on the site and collecting data on Americans. 

TikTok executives say they would never allow such interference by the Chinese government. Even so, they say they have come up with a $1.5 billion plan to revamp their operations to ensure that the site is independent, including creating a system for monitoring the secret algorithms that determine the content pushed to users. 

TikTok said it would also create a new wholly owned subsidiary called TikTok U.S. Data Security, overseen by an outside board of directors, to safeguard data on the app.

TikTok didn’t respond to a request for comment for this article. 

The national-security panel that is reviewing the measure, the Committee on Foreign Investment in the U.S., has been debating for months whether to approve the deal, with Pentagon and Justice Department representatives on the panel among those skeptical that any measure short of divestiture by its Chinese owners will satisfy the concerns.

Congressional Republicans have criticized the Biden administration for delays and plan to use the newly created Select Committee on the Strategic Competition between the United States and the Chinese Communist Party to focus on the need to solve the TikTok issue.

“The Chinese Communist Party can control the algorithm and user data of the most powerful social-media company in America—this strikes me as shortsighted at best and disastrous at worst,” said Mr. Gallagher, who is chairman of the committee. 

He said the committee will work to ensure a “positive agenda for cross-border data flows within the Free World.”

The White House didn’t respond to a request for comment on the Berman amendments discussions on Capitol Hill.

Mr. Berman’s 1988 legislation amended U.S. economic-sanctions laws to end the president’s authority to regulate or ban imports or exports of “publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes or other informational materials.” A further change in 1994 expanded the Berman amendment to apply “regardless of format or medium of transmission,” which expanded protections to emerging forms of digital media. 

Mr. Berman, whose Los Angeles district included entertainment-industry interests, declined to comment. He now works for a law firm that successfully represented TikTok in fighting the Trump administration’s effort to declare the app a national-security threat and force its sale or shutdown. 

The idea of a popular video-sharing app that millions of Americans view on their phones was hardly a consideration at the time Mr. Berman got his amendments passed. 

“This scenario is not one that Congress had in mind or even could have foreseen fully” when it adopted the Berman protections, said Bobby Chesney, dean of the University of Texas law school and a co-founder of Lawfare, a national-security blog.

 “It…makes a lot of sense for Congress to revisit this question afresh,” he said.

Write to John D. McKinnon at [email protected]