TikTok lawyer: China can’t get US data under plan

Under intense scrutiny from Washington that could lead to a possible ban, the top lawyer for TikTok and its Chinese parent company, ByteDance, has defended the social media platform’s plan to safeguard American user data from China.

“The basic approach we are taking is to make it physically impossible for any government, including the Chinese government, to have access to US user data,” general counsel Erich Andersen said during a wide-ranging interview with The Associated Press at a cybersecurity conference in Sausalito, California, on Friday sponsored by the Hewlett Foundation and Aspen Digital and featuring senior government officials, technology executives and journalists.

ByteDance will continue to develop its new app called Lemon8, Andersen said.

“Obviously we’re going to do everything we can with the Lemon8 app to comply with US law and to make sure we’re doing the right thing here,” Andersen said, referring to the new social app developed by ByteDance that resembles Instagram and pinterest. “But I think we have a long way to go with that app, it’s more or less a startup phase.”

ByteDance’s best-known app, TikTok, is under intense scrutiny over concerns it could hand over user data to the Chinese government or push pro-Beijing propaganda and misinformation on its behalf. Lemon8 was introduced to Japanese app stores in April 2020 and has been rolled out to more countries since then. It is available to download in the US and could face similar scrutiny as TikTok.

Leaders of the FBI, CIA and officials from other government agencies warned that ByteDance could be forced to provide user data, such as browsing history, IP addresses and biometric identifiers, to Beijing under a 2017 law that requires companies to cooperate with the government on matters related to China’s national security. Another Chinese law, implemented in 2014, has similar mandates.

To assuage the concerns of US officials, TikTok has been emphasizing a $1.5 billion proposal, called Project Texas, to store all US user data on servers owned and maintained by the software giant Oracle. Under the plan, access to US data would be managed by US employees through a separate entity called TikTok US Data Security, which runs independently of ByteDance and is monitored by outside observers.

Some lawmakers have said that’s not enough. But despite skepticism about the project, TikTok says it’s going ahead anyway.

“We are investing in a system where people don’t have to believe the Chinese government and they don’t have to believe us,” Andersen said.

He also wondered if the skepticism was being fueled by something else.

"Where are we falling short here?" he said. “At some point you go beyond cybersecurity risk assessment and so on and you get to ‘We don’t like your nationality.'”

TikTok CEO Shou Zi Chew said the company began removing all historical US user data from non-Oracle servers this month and expects that process to be completed this year. During a congressional hearing last week, Chew said migrating the data to Oracle will keep it out of China’s reach, but he also acknowledged that China-based employees may still have access to it before the process is complete.

TikTok maintains that it has never been asked to provide any information and will not do so if requested. But whether those promises, or the Texas Project, will allow it to continue operating in the US remains to be seen.

The United States, as well as Great Britain, the European Union and others, have banned TikTok on government devices. And the Biden administration is reportedly threatening to ban the app in the US unless its Chinese owners divest their stakes in the company.

On Friday, Andersen said a ban would be “basically giving up.”

“Banning a platform like TikTok is a defeat, it is a statement that we are not creative enough to find another way,” he said.

China has said it will oppose a possible sale, a statement that makes it difficult for TikTok to position itself and ByteDance as a global company rather than a Chinese company. In 2020, the country also fiercely opposed executive orders by then-President Donald Trump that sought to ban TikTok and the messaging app WeChat.

“They were clear on their point in the 2020 time frame when we faced an existential challenge from executive orders under the Trump administration,” Andersen said.

The courts blocked Trump’s efforts, and President Joe Biden rescinded Trump’s orders after taking office. Since then, the company has been in talks about privacy concerns with the Committee on Foreign Investment in the United States, a multi-agency panel that falls under the Treasury department.

Meanwhile, lawmakers on Capitol Hill have been pushing bills that would effectively ban TikTok or give the administration more authority to do so. A bill by US Senator Josh Hawley was blocked this week by Senator Rand Paul, the only Republican to oppose the TikTok ban. A small number of progressive lawmakers also said they would oppose a ban and argued that the US should implement a national privacy law to reduce the problem.

Andersen said Friday that TikTok would support broad-based privacy legislation.

“Our view is that we would really appreciate broad-based legislation that is broadly and uniformly applied,” he said. “What we don’t like, frankly, is legislation that is targeted at one company.”

TikTok could also be banned through another bill, called the RESTRICT Act, which has won broad bipartisan support in the Senate and backing from the White House. The legislation does not call out TikTok, but it would give the Commerce Department the power to review and potentially restrict foreign threats to technology platforms.

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