Guest Post: The TikTok Blame Game Starts

By Chris Castle

The walls appear to be closing in on TikTok (or as it’s becoming known, TikSoft).  This is probably particularly galling to the founder of Bytedance (TikTok’s parent company). Zhang Yiming worked at Microsoft but left in 2008.

Mr. Zhang is launching a Google-style reaction and deflection campaign against the U.S. Government’s standard Committee on Foreign Investment in the United States (“CFIUS”) review of Bytedance’s 2017 acquisition of Musical.ly that started on November 1, 2019.  Bear in mind–Zhang must be well aware that pre-acquisition review by CFIUS is a standard procedure which Bytedance chose not to pursue.  Had Bytedance submitted the Musical.ly transaction to a pre-acquisition review, TikTok might still have the current problem, but it would have to come from a less legally solid ground.

The key issue in the CFIUS review is the one that Mr. Zhang is not discussing–China’s National Intelligence Law.   The reason for the U.S. 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 even 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.

It is this law that is at the bottom of U.S. concerns about TikTok’s data scraping–it is, after all, spyware with a soundtrack.  There’s a strong case to be made that U.S. artists, songwriters, creators and fans are all dupes of TikTok as a data collection tool  in a country that requires its companies to hand over to the Ministry of State Security all it needs to support the intelligence mission (MSS is like the FBI and CIA in one agency with a heavy ration of FSB).

Mr. Zhang does not discuss this part.  It should come as no surprise–according to his Wikipedia page, Mr. Zhang understands what happens when you don’t toe the Party line:

ByteDance’s first app, Neihan Duanzi, was shut down in 2018 by the National Radio and Television Administration. In response, Zhang issued an apology stating that the app was “incommensurate with socialist core values“, that it had a “weak” implementation of Xi Jinping Thought, and promised that ByteDance would “further deepen cooperation” with the ruling Chinese Communist Party to better promote its policies.

I would find it very, very hard to believe that Mr. Zhang is not a member of the Chinese Communist Party, but in any event he understands very clearly what his role is under the National Intelligence Law.  Do you think that standing up to the MSS to protect the data privacy of American teenagers is consistent with “Xi Jinping Thought”? (Xi Jinping is the Chairman for Life of the Chinese Communist Party.)

Kind of like this recent police banner from Hong Kong:

hong-kongs-new-weapon-against-protesters-a-purple-warning-flag

It’s not that I don’t believe a word he says, it’s just that I’m still waiting to hear how operating the company in the U.S. in line with the public protestations of TikTok executives is consistent with “Xi Jinping Thought” and being “commensurate with socialist core values.”

But hope springs eternal.

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