US Senate will kill ‘divest or ban’ TikTok bill, despite House backing, experts predict

Republicans in the chamber, it would appear, were not deterred by former President Donald Trump’s recent public opposition to the bill – a sentiment he voiced after meeting with a key GOP donor who holds a 15% stake in ByteDance.

President Joe Biden, who himself joined the social app last month in a new election campaign push, has indicated his support for the bipartisan bill, saying he will sign it into law should it advance through Congress.

A number of representatives voiced their satisfaction with the decision this morning. Speaker Mike Johnson (R-LA) said in a statement that the House’s approval “demonstrates Congress’ opposition to Communist China’s attempts to spy on and manipulate Americans, and signals our resolve to deter our enemies.”

Now, the legislation, dubbed the Protecting Americans from Foreign Adversary Controlled Applications Act, will move to the Senate, where it faces a more uncertain future.

“We are hopeful that the Senate will consider the facts, listen to their constituents, and realize the impact on the economy, 7 million small businesses, and the 170 million Americans who use our service,” a TikTok spokesperson tells The Drum.

Senate Majority Leader Chuck Schumer (D-NY) has already indicated that the legislation is not a priority at the moment, with the chamber’s hands full with Biden’s budget plans and other priorities.

Plus, it faces higher hurdles in the Senate than it did in the House. For one, it will require a majority vote in a tightly divided chamber, where Democrats hold a narrow majority. It’s also likely to undergo an open amendment process that could significantly alter the shape of the bill and, by extension, its prospects.

All the while, Senators voting on the bill will field a variety of external pressures from political donors, lobbyists and other stakeholders advocating against the measure.

A number of Senators on both sides of the political aisle have already signaled their opposition to the bill. Key concerns among them include free market interference, potential detriment to businesses and potential infringements on First Amendment rights (this last point being ByteDance’s primary argument against the legislation).

Some Senators have also taken issue with the fact that the bill targets just one specific company rather than aiming to establish broader protections for Americans across a swath of platforms.

This concern is summarized neatly by James Mawhinney, chief executive officer at Media.com – a network for journalists, public figures and PR teams designed to mitigate misinformation – who says, “A ban on the platform could disrupt the dissemination of false or misleading information to its vast user base, potentially mitigating the harmful effects of viral misinformation campaigns. However, it’s crucial to recognize that the issues of disinformation and online manipulation are not confined to TikTok alone. Other platforms, including Facebook, Twitter and YouTube, have grappled with similar challenges, highlighting the need for comprehensive approaches to combating misinformation across the digital landscape.”

It’s worth noting that other social platforms, though not the target of this new bill, have not escaped lawmakers’ growing scrutiny around data privacy, children’s online safety and national security. In January, the executives of five major social titans – TikTok, Meta, X, Snap and Discord were grilled by members of Congress in a hearing that lasted more than four hours.

Another challenge to the bill’s passage is, of course, its timing.

“It becomes political – do you want to take action against TikTok right before an election where you might annoy a lot of voters?” says James Lewis, senior vice-president at the Center for Strategic and International Studies (CSIS) and a former member of the US Foreign Service.

“Everyone wants to say, ‘The other guy is soft on China.’ But in this case, there’s almost unanimous consent on the Hill that we need to [retaliate against] the Chinese. So it’s more a question of timing and how it affects the election,” he says.

For all of these reasons, experts believe the process is not only likely to be slow-moving but also likely to result in a dead end for the Protecting Americans from Foreign Adversary Controlled Applications Act.

“There’s no way this makes it through the Senate,” says Aron Solomon, an attorney and chief strategy officer and legal analyst at Amplify. “Even before Trump came out against [this bill] a few days ago, there is a very different tone in the Senate.”

It’s a prediction shared by many experts, including Irina Tsukerman, a US national security lawyer and the president of Scarab Rising, a media and security consultancy. “Most likely, this version of the bill will not pass, at least not without significant amendments,” she says.

Although some suggest that ByteDance would be wise to begin seeking a buyer, legal experts generally believe that TikTok will continue to fight the bill.

And while the platform has expressed concern that such a bill would overstep protected First Amendment rights, TikTok also has a simpler motivation: an interest in protecting its brand image.

“ByteDance is fighting the bill and will continue to invest in the fight despite the fact that [the bill] is unlikely to pass because the publicity around it and the rising awareness of the national security concerns is bad for the brand,” says Tsukerman. “The hoopla in the media is informing Americans about the potential risks of using TikTok under the current circumstances – and this can lead to economic impact and soft power decline of the product and company even if the bill fails. Bad publicity is bad for the brand, and it also makes China look bad.”

In the unlikely chance that the Protecting Americans from Foreign Adversary Controlled Applications Act is passed in the Senate, the fight wouldn’t end there, says CSIS’ Lewis. “If this becomes law, [TikTok] will go to litigation.”

Plus, were ByteDance forced to divest TikTok, Lewis says, China might retaliate with its own demands that US companies divest, too.

In fact, the ripple effect could go even further, some estimate. “We have highlighted several flaws with this bill and approach, which we worry could embolden other governments, beyond China, to take similar stances and ban American applications and services,” says Lilian Coral, head of the Open Technology Institute and vice-president for technology and democracy programs at New America, a liberal think tank focused on a variety of policy issues. “This would harm American innovation, imperil human rights globally and deal another major blow to the vision of an open and interoperable global internet.”

But the bill’s passage in the Senate remains a remote possibility at this stage, in Lewis’ estimation. It’s more likely, he suggests, that before the Senate gets around to taking a vote, ByteDance is able to work out some kind of arrangement with the Biden administration that doesn’t require a divestiture.

In this scenario, a possible alternative to divestiture would be an IPO on Wall Street, which would enable ByteDance to retain ownership of the app but would give American shareholders a voice and might help the US mitigate some of the security and safety risks currently associated with the platform. But even that route might invite opposition from China, which forbids ByteDance from exporting its algorithm without government approval.

At the end of the day, Lewis says, “The Chinese government gets a vote, too. And they would prefer that any IPO take place in Shanghai rather than on Wall Street.”

For the time being, Lewis, like many other policy pros, doubts that the demands of the current bill offer viable solutions to the problems that US lawmakers see in TikTok. “There’s a solution out there. It probably involves an IPO and the Committee on Foreign Investment in the United States and creating a separate entity in the US, but it’s not the solution [spelled out] in the bill.”

Despite widespread skepticism about the bill’s prospects in the Senate, it’s unlikely that TikTok’s problems – or broader concerns about data protection, national security and young users’ wellbeing – will disappear anytime soon.

“There are legitimate concerns with regard to the Chinese government’s access and influence over the personal data of Americans,” says Jason Kint, chief executive officer at Digital Content Next, a digital media trade body. “This bill … highlights concerns across the board with how social media companies at large collect and use data and the adverse impact on teenagers. Members of Congress are clearly waking up to the reality that they need to address the larger problem.”

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