TikTok discourse exposes need for U.S. federal privacy legislation

A TikTok ban is getting further away as it comes into focus. 

Which is to say a ban of the short-form app is unlikely regardless of how topical it is these days. There are just too many logistical, political and philosophical barriers to it actually happening. 

But even if lawmakers defied the odds and made the impossible possible, a ban would be more of a political statement than a precursor to reform. And it doesn’t address the systemic problems with data privacy in the U.S. If anything, it would address one symptom of a much larger problem: the lack of comprehensive standards for how data can be aggregated, traded and processed across the U.S.

As it stands, there’s a patchwork of different federal and state laws as well as judicial precedents. Usually, this mishmash of protections are difficult to enforce and keep up given the rapid shifting evolution of new digital-driven threats to personal data. A more unified, federal law would mitigate a lot — albeit not all — of those issues.

“Americans need privacy protections and informed consent over which data they share — and this needs to be true no matter which country the particular tech platform hails from, whether it’s China, the United States or any other nation,” said Tom Chavez, CEO of data privacy firm Ketch.

Addressing that larger problem would require something like a federal privacy law that safeguards privacy as a human right, privacy specialists like Chavez have said. Until this happens, companies will continue to put consumers — and their data — at risk.

“We need federal legislation with some teeth — and enforcement mechanisms,” said Daniel Barber, CEO of privacy control center DataGrail. “Robust penalties and enforcement measures are crucial in holding companies accountable.”

Policies like this, however, need an enormous amount of political will to realize. The paperwork, the Influential tech lobbyists, not to mention the challenge creating a policy broad enough to cover how data is and could be traded — it’s a lot to wrangle.

It took four years of preparation and debate for Europe’s wide-reaching data protection law to be finally approved by the European Union Parliament in April 2016. In lieu of time, U.S. lawmakers may want to strike TikTok while the iron’s hot. 

But as powerful as a haymaker blow like a ban is, it’s also hard to land. Remember what happened the last time U.S. lawmakers tried to ban TikTok? There was a legal challenge, and it was ultimately revoked. 

“My biggest concern is that in the rush to do something about this issue, the outcome that gets arrived at is ineffectual or else actually detrimental,” said Erik Weinick, a partner at the law firm Otterbourg and co-founder of its privacy & cybersecurity practice.

The most likely outcome for TikTok is that it’s forced to divest a majority stake to a U.S. company, which would solve the fact that Chinese ownership of TikTok is clearly untenable now.

“Right now, we are one of the only developed nations in the world to lack federal protections, so it’s a bit laughable that Congress is trying to be tough on TikTok when it’s consistently evaded its responsibilities, instead forcing individual states to come up with their own laws,” said Barber. 

Marketers share the sentiment it seems. 

“Consumers are in the midst of a privacy awakening, and marketers are in the early stages of their own,” said Chavez. “Now that they understand the extent to which customers’ data can be misappropriated and misused, they can run — but they can’t hide — from its implications, the Federal Trade Commission, or the newly awakened consumer.”

TikTok’s uncertain future — and the ensuing debate — only reinforces this view. Something needs to be done given Congress’ criticisms of TikTok are validated, to some extent, by the fact that TikTok owner Bytedance can be compelled to share data with the Chinese government. But those data privacy risks don’t go away with TikTok. There are other popular Chinese apps used by Americans, as Axios reported, for instance. And that’s on top of the fact that the same data privacy concerns leveled at TikTok could be applied to other American-owned companies like Facebook, YouTube, Twitter, Instagram and many others. 

“This isn’t a TikTok problem,” said Avi Ben-Zvi, vp, paid social at Tinuiti. “We’re addressing questions that are important for all platforms, with regards to data security and privacy. And maybe given the heat that TikTok’s been given, they’re actually doing the most in relation to this.”

It says everything that most of the marketers Digiday has spoken to in the week following TikTok’s congressional hearing were against a ban. And no it wasn’t just because a ban would take away a valuable piece of real estate to park their ad dollars. They too — like privacy experts — are concerned about whether a ban would have any real fundamental impact on how personal data is protected.

“Precedent matters — we have zero precedent for a nation-wide ban of such a popular technology and entertainment platform,” said Kevin Goodwin, vp of performance marketing at New Engen. “Since we’ve never seen it happen before, all marketers are skeptical TikTok will be the first to pay the price. On a smaller scale, while Meta and Google consistently face legislative pressure for specific products and ways of working, these pressures have never materially impacted their ability to provide products to users and advertisers.”


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