It is a valid legal strategy, Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School, explains to WIRED, as the First Amendment can consider a law unconstitutional “if the law hinges on solving a particular problem, does so in an extremely limited way, and leaves the law unsolved.”
But the judge didn’t seem to buy the argument. “It’s a rather blinkered view that the statute just singles out one company,” said Judge Douglas Ginsburg during the hearing. “It describes a category of companies, all of which are owned by or controlled by adversary powers, and subjects one company to an immediate necessity because it’s engaged in two years of negotiation with that company, held innumerable hearings, meeting after meeting after meeting, [and] an attempt to reach an agreement on a national security arrangement which failed.”
The DOJ also replied to TikTok’s problem with the exclusion clause, saying in a court brief that if the clause were to be found problematic, the right solution would be to simply take out that clause about excluding businesses, instead of invalidating the whole law.
In recent years, data security concerns have become one of the main friction points in tech policies in the US and China. While the Chinese government passed a law that regulates cross-border data transfers, the US government has taken a more piecemeal approach, investigating risks posed by products like TikTok and Chinese-made smart cars.
Some experts and lawmakers advocate for a more comprehensive legal framework to solve this issue. “This bill not only fails to solve the problem, but also jeopardizes the free speech and livelihoods of 170 million Americans who use the app. Instead, Congress should pass a bill to prevent apps, whether it’s TikTok or any other social media platform, from collecting or transferring data and make foreign interference in social media algorithms illegal,” said Representative Ro Khanna in an emailed statement. Khanna voted no on the PAFACA bill.
For now, Chinese ecommerce sites like Shein and Temu have faced much less scrutiny around data security than TikTok. But TikTok’s legal strategy of highlighting the alleged data security risks of other Chinese companies will no doubt put more pressure on them. If TikTok fails its legal challenge and is banned from operating in the US unless it is sold, it’s not hard to imagine that lawmakers might turn their attention to other prominent Chinese tech companies.
“There might be some kind of legal strategy behind this, but in terms of how the public will now perceive TikTok, it has voluntarily opted to be associated with Temu and Shein and has undone a lot of the narrative work it has been trying to do,” says Ivy Yang, the founder of Wavelet Strategy, a strategic PR consultancy who has worked in Alibaba’s PR department.
By comparing TikTok’s data security concerns to Shein’s and Temu’s, the company essentially has labeled itself among a number of Chinese companies considered security risks.
So far, Shein and Temu have not made any statement about the PAFACA bill and its potential implications on their businesses. A Shein spokesperson responded in an emailed statement: “SHEIN has robust data security policies and practices in line with industry standards, and we are committed to only collecting and using the minimum amount of data needed to fulfill orders. SHEIN stores US customer data within Microsoft’s US-based Azure cloud-based solution and within AWS’s US-based cloud-based solution.” Temu and TikTok did not reply to requests for comment.
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