TikTok Goes From Silly to Serious

"Most sectors of the economy are a conspiracy between the big incumbents and their punitive regulators," venture capitalist and software engineer Marc Andreessen tells Reason this month (page 48). Asked to identify pockets of relative freedom and competition, he offers what he calls "the cynical answer": There's still innovation "in the spaces that don't matter. Anybody can bring a new toy to market. Anybody can open a restaurant."

Social media is the latest industry to transition from a free, fun space that "doesn't matter" to a sector the state deems too important to be left to the market. At first, the justifications for intervention were numerous and rapidly shifting: Early calls to regulate or break up Facebook and Twitter were often framed as concerns about exclusion from speech in the public square or the spread of misinformation. (Largely absent from this argument was any acknowledgment that these are private companies or that, as it turns out, the government was pressuring those companies to do some of the very exclusions and misinformation peddling that the government promised to remedy.) Another strong contender for concern was the sheer size of the firms, which could open the door for antitrust action. And then there's the ongoing debate over whether the costs to teen mental health are so high and age verification so difficult that perhaps access to social media should be limited or eliminated for everyone.

Those regulatory efforts continue apace, but their appeal has paled in contrast to a shiny new target.

After a variety of feints at Facebook and Twitter, Congress has found fertile ground for political point scoring with TikTok. Once dismissed as the home of silly dance videos, TikTok became a magnet for every possible cultural concern as it grew in popularity. After alarmists tried worrying about political extremism, viral pranks, and the normalization of twerking, a bipartisan coalition settled around a dominant bogeyman: China.

Several bills have been introduced to counter the Red Menace that TikTok allegedly represents. The RESTRICT Act, which has the most momentum at press time, is written so vaguely that it could potentially make illegal all manner of online entanglement "between persons in the United States and foreign adversaries" such as China, Cuba, Iran, North Korea, Russia, and Venezuela. The bill also allows the secretary of commerce to expand this new digital axis of evil "in consultation with the Director of National Intelligence" as well as giving that official wide latitude to "identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate…any risk arising from any covered transaction by any person, or with respect to any property" that the secretary determines to pose "an undue or unacceptable risk."

The bill provides for civil penalties of up to "$250,000 or an amount that is twice the value of the transaction that is the basis of the violation" and criminal penalties of up to 20 years in prison. While the RESTRICT Act's authors claim these penalties would not be applied to casual American TikTok users, they also say that anyone "interfering in, or altering the result" of a federal election would potentially be covered. Given the ever-expanding definition of election interference, users might be forgiven for feeling wary about online political speech in that environment.

Restricting the use of a platform that facilitates speech sounds constitutionally dubious to begin with, and police powers to enforce such restrictions will not be easy to contain once unleashed. Attempts to control or ban TikTok follow an unfortunately increasingly common pattern, in which lawmakers acknowledge that their plans are likely unconstitutional but decide to shoot their shot anyway and let the courts decide later—the legislative equivalent of "kill 'em all and let God sort 'em out."

Many of the risks posed by TikTok's relationship with China sound serious, but are hypothetical or too narrowly defined. Lawmakers say they are concerned about the ways Chinese ownership puts American users at risk of having their data collected and shared with the Chinese government. Similar concerns have been raised about American-owned social media platforms such as Facebook and Twitter, and there is currently a robust secondary market in such data, so the focus on foreign ownership seems to be a red herring.

Opposition to TikTok may be based on a false political premise: Cracking down on TikTok may seem to Congress like a cheap way to signal toughness on China. But like the dog that manages to catch the car, legislators may end up with more than they bargained for if they actually shut down the app in the U.S., with millions of disproportionately young users inclined to be outraged when their favorite toy is taken away.

TikTok is still a relatively new player in the social media world, and its distinctive features may be unfamiliar and intimidating to some lawmakers. This was evidenced by a March hearing in which some congressmen made embarrassingly uninformed comments about the app.

Three different representatives called the social media app "Tic Tac" at the hearing, suggesting that this Congress is not well-suited to parse technical questions. Congress, like the nation as a whole, has been steadily aging since the 1980s, and it is now the most elderly it has ever been. The median age in the Senate is 65.3 years old. In the House, it's 57.8.

The RESTRICT Act, as its authors don't hesitate to admit, is designed to force a sale of TikTok to an American company, not to ban the app. But its dramatic constraints borrow from a playbook perfected by China itself, which currently bans Facebook, Instagram, WhatsApp, Google, YouTube, Twitter, Snapchat, Tumblr, Pinterest, Slack, Twitch, Discord, Dropbox, Quora, Wikipedia, and SoundCloud—in other words, nearly everything that makes the American internet novel and interesting.

In China, there are tight constraints even on the domestic version of TikTok, including time limits on kids' use, and much of the platform is cluttered with propaganda.

It's perfectly reasonable to limit how much time children spend on social media. But only if they are your own children. None of this has stopped the state of Utah from passing a law imposing similar limits, which will also face legal challenges going forward. We will not beat China—if "beating China" is even an appropriate goal—by becoming more like China.

"The road to hell is paved with good intentions," notes Andreessen, describing an eternal hopefulness that this time policy makers might craft "very carefully calibrated, well-thought-through, rational, reasonable, effective regulation." He then smashes that hope. "We don't get the abstract theoretical regulation, we get the practical, real-world regulation….Regulatory capture. Corruption. Early incumbent lock-in. Political capture. Skewed incentives."

Regardless of how this plays out, relatively unfettered online markets have already lost. Social media have been dragged, kicking and screaming, out of the zone of the economy that enjoys benign neglect from lawmakers, regulators, and security hawks, and into the sphere of industries deemed critical infrastructure, central to national security, or possible intelligence risks. At best, TikTok will emerge from this battle cowed and cautious—exactly the opposite of what we want in our social media. And then a new competitor will rise in its place to panic the policy makers once again.