A draft agreement said to have been presented by the U.S. government to ByteDance that would let TikTok avoid a federal ban seeks “near unfettered access” to company data and “unprecedented control” over platform functions. The nearly 100-page document, reported on this week, seeks control federal officials don’t have over other media outlets — social or otherwise — raising domestic concerns about government overreach. The draft dates to summer 2022. It is not known whether it has been updated or if the secretive negotiations between ByteDance and the Committee on Foreign Investment in the United States (CFIUS) have since continued.

The coverage suggests the agreement-in-progress was authored by U.S. officials and provided to ByteDance, which sent it back annotated with notes in a document that was then leaked to a San Francisco-based reporter for Forbes.

As written, the year-old draft would “force TikTok U.S. to exclude ByteDance leaders from certain security-related decision making, and instead rely on an executive security committee that would operate in secrecy from ByteDance,” Forbes writes, adding that “members of this committee would be responsible first for protecting the national security of the United States, as defined by the Executive Branch, and only then for making the company money.”

The parameters of such an agreement place the U.S. government in the awkward position of extrajudicial interference with the free market pursuits of a privately held company, in addition to inserting itself as a speech regulator between a popular app and the citizenry.

Forbes says “more than 150 million Americans use TikTok for an average of 90 minutes each day,” giving the app not only “vast influence over American commerce, culture and discourse,” but also “access to sensitive, private information about nearly half the American public.”

But the government’s proposed solution has raised other problems. “Many of the concessions the government asked of TikTok look eerily similar to the surveillance tactics critics have accused Chinese officials of abusing,” writes Gizmodo.

As previously reported, the working agreement would subject TikTok’s U.S. operations to supervision by independent U.S. investigative bodies, including a source code inspector and a cybersecurity auditor in addition to a third-party monitor and auditor.

Per Forbes, the draft agreement would give the Department of Justice and Department of Defense the authority to:

• Examine TikTok’s U.S. facilities, records, equipment and servers with minimal or no notice.
• Block changes to the app’s U.S. terms of service, moderation policies and privacy policy.
• Veto the hiring of any executive involved in leading TikTok’s U.S. Data Security org.
• Order TikTok and ByteDance to pay for and subject themselves to various audits, assessments and other reports on the security of TikTok’s U.S. functions.
• In some circumstances, require ByteDance to temporarily stop TikTok from functioning in the United States.
  

ACLU National Security Project Deputy Director Patrick C. Toomey (no relation to former Pennsylvania Senator Patrick J. Toomey) “argues the circumstances of TikTok’s deal, whatever they turn out to be, are unprecedented and deserve public scrutiny,” writes Forbes, emphasizing that “any agreement that would give the government such extraordinary power over a communications platform used by millions of Americans should be public, not secret.”

Concurrent with TikTok CEO Shou Zi Chew’s March testimony before Congress, Harvard Law Today, NPR, the ACLU, and The Wall Street Journal raised First Amendment issues regarding TikTok containment or bans.

Montana became the first state to publicly ban TikTok with a law that is now the subject of federal litigation. ZDNet says the UK and Australia have also banned TikTok for personal use.

More than half the U.S. states and the federal government have banned the app’s use on government devices and there are several proposed bills that would more broadly restrict U.S. use. TikTok has also put forth ameliorative proposals of its own.

Related:
TikTok Now Lets Brands Buy Ads That Appear in the App’s Search Results, TechCrunch, 8/22/23
Why Are TikTok Creators So Good at Making People Buy Things?, BBC, 8/20/23
BBC Partners with TikTok to Find Next-Gen TV Stars Just Months After Telling Staff to Delete App, Deadline, 8/22/23
The Battle to Ban TikTok and the Man at the Center of It, The Wall Street Journal, 8/20/23
New York City Bans TikTok on Government-Owned Devices, The New York Times, 8/16/23