It’s a valid legal strategy, Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School, tells WIRED, because the First Amendment can deem a law unconstitutional “if the law is predicated on solving a particular problem, does so in an extremely narrow way, and leaves the law unresolved.”
But the judge did not appear to accept the argument. “It is a rather narrow view that the statute singles out only one company,” Justice Douglas Ginsburg said during the hearing. “It describes a category of companies, all of which are owned or controlled by adversarial powers, and it subjects one company to immediate distress because it has been engaged in two years of negotiation with that company, held countless hearings, meeting after meeting after meeting, (and) an attempt to reach agreement on a national security arrangement that failed.”
The Justice Department also responded to TikTok’s issue with the exclusion clause, saying in a court brief that if the clause were found to be problematic, the correct solution would be to simply remove that clause about excluding businesses, rather than invalidating the entire law.
In recent years, data security concerns have become one of the main points of friction in US and Chinese technology policies. While the Chinese government has Approved a law regulating cross-border data transfersThe US government has taken a more fragmented approach, investigating the risks posed by products such as TikTok and smart cars made in China.
Some experts and lawmakers are calling for a more comprehensive legal framework to address this issue. “Not only does this bill fail to solve the problem, it 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 TikTok or any other social media platform — from collecting or transferring data and make foreign interference in social media algorithms illegal,” Rep. Ro Khanna said in an emailed statement. Khanna voted against the PAFACA bill.
For now, Chinese e-commerce sites like Shein and Temu have faced far less scrutiny on data security than TikTok. But TikTok’s legal strategy of highlighting the alleged data security risks of other Chinese companies will undoubtedly put more pressure on them. If TikTok fails in its legal challenge and is barred from operating in the U.S. unless it is sold, it’s not hard to imagine that lawmakers could turn their attention to other major Chinese tech companies.
“There may be some sort of legal strategy behind this, but in terms of how the public will now perceive TikTok, it has willingly chosen to partner with Temu and Shein and undone a lot of the narrative work it has been trying to do,” says Ivy Yang, founder of Wavelet Strategy, a strategic PR consultancy who has worked in Alibaba’s PR department.
By comparing TikTok’s data security concerns to those of Shein and Temu, the company has essentially labeled itself among a number of Chinese companies deemed security risks.
So far, Shein and Temu have not made any statements regarding 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 place in line with industry standards, and we are committed to collecting and using only the minimum amount of data necessary 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 respond to requests for comment.