It's a valid legal strategy, Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School, explained to WIRED, since the First Amendment can declare a law unconstitutional “if the law is designed to solve a particular problem, does so in an extremely narrow way, and leaves the law unsolved.”
But the judge did not appear to buy the argument. “It's a rather narrow view that the law singles out one company,” Justice Douglas Ginsburg said during the hearing. “It describes a class of companies, all of which are owned or controlled by opposing forces, and exposes one company to an immediate need because it has been negotiating with that company for two years, has had countless hearings, meeting after meeting after meeting, [and] an attempt to reach an agreement on a national security settlement that failed.”
The Justice Department also responded to TikTok’s exclusionary clause issue. In a court filing, the Department argued that if the clause were found to be problematic, the appropriate solution would be to simply remove the exclusionary clause, rather than invalidate the entire law.
In recent years, concerns about data security have become one of the major points of friction in U.S.-China technology policy. While the Chinese government has passed a law regulating cross-border data transfers, the U.S. government has taken a more piecemeal approach, investigating the risks of products like TikTok and Chinese-made smart cars.
Some experts and lawmakers are calling for a more comprehensive legal framework to fix the problem. “This bill not only fails to solve the problem, it also jeopardizes the free speech and livelihoods of the 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.
Chinese e-commerce sites like Shein and Temu have faced far less criticism over their data security than TikTok has thus far. But TikTok’s legal strategy of highlighting the perceived data security risks of other Chinese companies will undoubtedly put more pressure on them. If TikTok fails in its legal challenge and is banned from operating in the U.S. unless it is sold, it’s not hard to imagine lawmakers turning their attention to other prominent Chinese tech companies.
“There may be some kind of legal strategy behind it, but in terms of how the public will now view TikTok, the company has voluntarily chosen to be associated with Temu and Shein and has undone a lot of the narrative work it was trying to do,” said Ivy Yang, the founder of Wavelet Strategy, a strategic PR consultancy who worked in Alibaba's PR department.
By comparing TikTok's data security concerns to those of Shein and Temu, the company has effectively align itself with a number of Chinese companies seen as security risks.
So far, Shein and Temu have not issued a statement on the PAFACA law and its potential impact on their businesses. A spokesperson for Shein responded in an emailed statement: “SHEIN has robust data security policies and practices in place that are consistent with industry standards, and we are committed to collecting and using only the minimum amount of data necessary to fulfill orders. SHEIN stores U.S. customer data in Microsoft’s Azure U.S. cloud solution and AWS’s U.S. cloud solution.” Temu and TikTok did not respond to requests for comment.
