As Alan Rozenshtein, assistant professor of law at the University of Minnesota Law School, explains to WIRED, this is a sound legal strategy because the First Amendment can strike a law as unconstitutional “if the law is focused on solving a specific problem, it does so in a very limited scope and leaves the law unsolved.”
But the judge clearly didn’t buy that argument. “It’s a rather narrow view that the statute simply singles out one company,” Justice Douglas Ginsburg said during the hearing. “It describes a class of companies that are all owned or controlled by opposing forces, and it subjects one company to immediate exigency because it has engaged in two years of negotiations with that company, has had countless hearings, meetings after meetings after meetings, [and] attempt to reach an agreement on national security that failed.”
The Justice Department also responded to TikTok’s concern with the exclusion clause, saying in a court brief that if the clause proved problematic, the appropriate solution would be to simply remove the business exclusion clause rather than invalidate the entire law.
In recent years, concerns about data security have become a major point of friction in technology policy between the U.S. and China. While the Chinese government passed a law regulating cross-border data transferThe U.S. government has taken a more piecemeal approach, investigating the risks associated with products like TikTok and shrewd cars made in China.
Some experts and lawmakers are advocating for a more comprehensive legal framework to address the issue. “Not only does this bill fail to address the problem, it also threatens the free speech and livelihoods of 170 million Americans who use the app. Instead, Congress should pass legislation that would prevent apps, whether TikTok or any other social media platform, from collecting or transferring data and make it illegal for foreign users to interfere with social media algorithms,” Rep. Ro Khanna said in an emailed statement. Khanna voted against PAFACA.
For now, Chinese e-commerce sites like Shein and Temu face far less scrutiny over 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 to win its legal challenge and is barred from operating in the U.S. unless it’s sold, it’s not tough to imagine that lawmakers could turn their attention to other high-profile Chinese tech companies.
“There may be some legal strategy behind it, but in terms of how the public perceives TikTok now, the company has voluntarily chosen to be associated with Temu and Shein, which has undermined a lot of the narrative that was being built,” says Ivy Yang, founder of Wavelet Strategy, a strategic PR consultancy who used to work in Alibaba’s PR department.
Comparing TikTok’s data security concerns to those of Shein and Temu, the company has essentially placed itself among the ranks of Chinese companies considered a security risk.
So far, Shein and Temu have not made any statements about PAFACA and its potential impact on their business. 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 collecting and using only the minimum amount of data needed to fulfill orders. SHEIN stores U.S. customer data on Microsoft’s Azure cloud solution and AWS’s U.S. cloud solution.” Temu and TikTok did not respond to requests for comment.