There’s an easy answer to why TikTok has been banned in so many places and may well yet get banned in the US: China’s “National Intelligence Law.”
China’s National Intelligence Law was enacted on June 27, 2017 and came into effect in July 2017. The National Intelligence Law is part of a portfolio of statutes (including the Cybersecurity Law) that gives the authoritarian Chinese Communist Party statutory authority that is unique in the world. The statute is an actual legal requirement for all Chinese companies and citizens to cooperate with China’s massive intelligence agencies.
The reason for the concern about TikTok is that the National Intelligence Law has broadly drafted and poorly defined provisions that create gaping exposure for U.S. and other foreigners doing business or studying in China, as well as their Chinese business partners, employees and colleagues.
Two parts of the Intelligence Law are particularly concerning, Article 7 and Article 14. Article 7 mandates that “any organization or citizen shall support, assist, and cooperate with state intelligence work according to law” and Article 14 empowers State Security officials to demand this cooperation, stating that “state intelligence work organs, when legally carrying forth intelligence work, may demand that concerned organs, organizations, or citizens provide needed support, assistance, and cooperation.”
Other clauses are equally alarming. Article 16 authorizes State Security to interrogate any individual and to search their reference materials and files. Article 17 authorizes police to seize and take over the operation of communications equipment [aka TikTok], transportation, buildings, and other facilities of both individuals and organizations.
This would be a good point to remind you that there is no 5th Amendment in China, either in law or in concept. There is no right to remain silent. So understand that when this interrogation occurs it may well happen in a back room of some State Police office. Commandeering of “communications equipment” may well be at gun point. This is one of the issues for Hong Kong citizens.
You should also remember that the Chinese Communist Party controls many state owned enterprises. There is quite a blurry line between an SOE and really any business based in China or that is a “partnership” with the Chinese government (including companies like Alibaba and Tencent). It’s not surprising, then, that “intelligence” in China is quite different than in the West and includes commercial activities as stated in Article 2 of the Intelligence Law:
National intelligence work adheres to the overall national security concept, provides intelligence reference for major national decision making, provides intelligence support for preventing and defusing risks that endanger national security, and safeguards state power, sovereignty, unity and territorial integrity, people’s wellbeing, and economic and social Sustainable development and other important national interests.
The concern is that Chinese law requires TikTok to turn over on demand any data it gathers on TikTok users and even requires TikTok to allow the State Security police to take over the operation of TikTok for intelligence gathering purposes on any aspect of the users’ lives. TikTok seems to have capabilities well beyond what is necessary for its functionality, including snooping on your clipboard (which is how many people use strong passwords).
In a prescient 2017 Lawfare post, Dr. Murray Scot Tanner cautioned:
The Intelligence Law itself grants officials general authority to demand “assistance” from private organizations and access or use their “communications” facilities. But companies could face even more serious burdens if the law is applied in concert with the new Cybersecurity Law, which accords officials far more specific authority to access and regulate many features of corporate networks that might be useful for intelligence-gathering. These include key business and personal data (which must be stored in China), proprietary codes, and other intellectual property.And like the Intelligence Law, the Cybersecurity Law broadly requires network operators to cooperate with public security and state security officials.
FBI Director Christopher Wray told the Hudson Institute on July 7, 2020:
We’ve now reached the point where the FBI is opening a new China-related counterintelligence case about every 10 hours. Of the nearly 5,000 active FBI counterintelligence cases currently underway across the country, almost half are related to China. And at this very moment, China is working to compromise American health care organizations, pharmaceutical companies, and academic institutions conducting essential COVID-19 research….
[L]et me be clear: This is not about the Chinese people, and it’s certainly not about Chinese Americans. Every year, the United States welcomes more than 100,000 Chinese students and researchers into this country. For generations, people have journeyed from China to the United States to secure the blessings of liberty for themselves and their families—and our society is better for their contributions. So, when I speak of the threat from China, I mean the government of China and the Chinese Communist Party….
China is using social media platforms—the same ones Americans use to stay connected or find jobs—to identify people with access to our government’s sensitive information and then target those people to try to steal it.
When TikTok denies that they are handing over user data to the State Security police, they need to also offer an explanation of exactly how Chinese law does not apply to them because the Intelligence Law seems designed to apply to them exactly.
Personally, I simply don’t believe a word of it. And ask yourself this–if the FBI are opening a new case every 10 hours that is China-related, do you think that none of those cases involve TikTok?
If Google is the Joe Camel of data, then TikTok is the Joe Camel of intelligence.