The brand new TikTok ban is about to maneuver ahead in Congress

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WASHINGTON — The House Foreign Affairs Committee plans to pass legislation Tuesday that would give President Joe Biden the power to ban TikTok, the Chinese social media app used by more than 100 million Americans forbid.

The panel is scheduled to vote Tuesday afternoon on a number of China-related bills, including one that would overhaul the longstanding safeguards that have protected distributors of foreign creative content like TikTok from US sanctions for decades. HR 1153 was presented last Friday and is expected to pass the committee on Tuesday.

The bill, which could ultimately ensnare TikTok, which is owned by Chinese company ByteDance, has only one sponsor, the committee’s incoming Republican chairman, Texas Rep. Mike McCaul.

Typically, such a new single-sponsor bill would not be voted on in committee just days after it was introduced. But the choice of which bills go through a committee is made by the chair of each committee, so McCaul’s sponsorship is effectively all the bill needs.

If the measure is approved by a majority of committee members and sent to the full House for a vote, as expected, HR 1153 will effectively skip several other proposals to ban TikTok previously tabled in the House and Senate. The committee procedure is not yet complete.

After that, McCaul’s bill would likely pass the Republican-controlled House with ease. But his fate in the majority Democratic Senate is unclear.

Despite bitter disagreements between the two parties on almost every major issue, Democrats and Republicans overwhelmingly support one thing: proactive measures to curb China’s growing global influence. And HR 1153 could do that.

In practical terms, the bill would revise a group of rules known as the Berman Amendments, first enacted towards the end of the Cold War to protect “information materials” such as books and magazines from sanctions-related import and export bans.

Over time, however, the Berman Amendments grew into a broad rule that courts interpreted as prohibiting the government from using sanctioning powers to block trade in any informational material, including digital content, into or out of a foreign country .

In 2020, TikTok successfully argued in court that it was covered by the Berman Amendments exemption as it fought back attempts by the Trump administration to ban its distribution Apple And Google app stores.

McCaul told CNBC his bill would change that. “Currently, the courts have questioned the government’s power to sanction TikTok. My bill empowers the administration to ban TikTok or any other software application that threatens U.S. national security,” McCaul said in a statement Monday.

Under McCaul’s bill, the exceptions to the Berman changes that have protected TikTok in the past would no longer apply to companies involved in the transfer of Americans’ “sensitive personal information” to companies or individuals located in China or controlled by China.

At first reading, McCaul’s legislation appears to be broader than some of the other TikTok laws introduced to date.

Critics and TikTok lobbyists have argued that these previous bills amounted to punishing the company for a crime outside of the legal system. They also argue that any ban is tantamount to censoring content protected by the First Amendment.

“It would be unfortunate if the House Foreign Affairs Committee censored millions of Americans,” TikTok spokeswoman Brooke Oberwetter said in an email to CNBC on Monday.

TikTok is no stranger to rough political waters, having been in the crosshairs of US lawmakers since former President Donald Trump declared his intention to ban the app through executive action in 2020.

Back then, ByteDance may have wanted to spin off TikTok to prevent the app from shutting down.

In September 2020, Trump said he would approve an agreement to work with TikTok oracle on a cloud deal and Walmart on a commercial partnership to keep it alive.

However, those deals never materialized, and two months later, Trump was defeated by Biden in the 2020 presidential election.

The Biden administration kept up the pressure. While Biden was quick to rescind executive orders banning TikTok, replacing them with his own and setting out more of a roadmap for how the government should assess the risks of an app linked to foreign adversaries.

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TikTok continues to work with the US Foreign Investment Committee, which reports to the Treasury Department. CFIUS, which assesses risks associated with foreign investment deals, is considering ByteDance’s purchase of Musical.ly, which was announced in 2017.

The CFIUS review has reportedly stalled, but TikTok spokeswoman Oberwetter said the company still supports the deal.

“The quickest and most thorough way to address national security concerns is for the CFIUS to adopt the proposed agreement that we’ve been working with them on for almost two years,” she told CNBC on Monday.

Meanwhile, government officials from the FBI and the Justice Department have publicly warned of the dangers of app use, and many states have imposed their own bans.

On Monday, the Biden administration released new implementation rules for a TikTok ban that applies only to state devices, which Congress passed in December.

Earlier this month, Sens. Richard Blumenthal, D-Conn., chairman of the Senate Judiciary Subcommittee on Privacy, and Jerry Moran, R-Kan., member of the Senate Select Committee on Intelligence, said in a letter that CFIUS “is completing its investigation in a timely and rigorous manner.” impose structural restrictions between TikTok’s American operations and its Chinese parent company ByteDance, including a possible separation of the companies.”

But while the executive branch scrutinizes TikTok over CFIUS, McCaul and the GOP-controlled House aren’t waiting for action.

“TikTok is a security threat. The CCP allows it [Chinese Communist Party] to manipulate and monitor its users while it devours Americans’ data to use in its malicious activities,” McCaul told CNBC.

If TikTok-related legislation looks set to move quickly through Congress, it could alienate investors and benefit some of the company’s biggest competitors.

TikTok is taking market share FacebookInstagram and Google‘s YouTube, all of which have slowed dramatically in advertising over the past year.

According to Insider Intelligence, TikTok controls 2.3% of the global digital advertising market, behind only Google (including YouTube), Facebook (including Instagram), Amazon and Alibaba.

— CNBC’s Ari Levy contributed to this story from San Francisco.