Congress Banned TikTok. So Why Is It Still on Your Phone?

CHRISTIANE AMANPOUR: Now, to the U.S., it wasn’t so long ago that lawmakers from both parties were warning about the dangers of TikTok, the hugely popular app owned by a Chinese-based parent company. But lately, says our next guest, the alarm bells have gone noticeably silent. Glenn Gerstell was general counsel of the National Security Agency, and here he is with Walter Isaacson.

 

WALTER ISAACSON: Thank you, Christiane. And Glenn Gerstell, welcome to the show.

 

GLENN GERSTELL: Thank you. Glad to be here.

 

ISAACSON: You have a essay in the New York Times about the TikTok ban and why it hasn’t taken place. It’s, you know, the video app that half the country, I think, uses it was supposed to be banned. Why is it still in operation?

 

GERSTELL: This is a completely crazy saga, TikTok. It shows sort of our inconsistency about how we approach Chinese tech. But the, this was such a national security threat just 15 or 16 months ago, that bipartisan majorities of the House and Senate decided that this app was such a, presented such a risk of, of Chinese interference and possible theft of data, that it had to be banned within nine months if it didn’t get, if it didn’t get out of Chinese hands. So it was a very serious national security threat that was really urgent. And the, the – Congress took unprecedented adopted unprecedented legislation. We’ve never banned a social media app before. And here we are now. Just 15 or 16 months later, the, the banned, outlawed app is still in Google’s app store and an Apple’s app store. The president of the United States has said he’s going to continue to extend the ban, not apply it. He’s directed his Justice Department to not enforce the ban while he searches for a deal to take it out of Chinese hands.

 

ISAACSON: Well, let’s start with the underlying question, not whether the law’s enforced or not first, which is, what’s wrong with TikTok? Why would you wanna ban it?

 

GERSTELL: So, critics of TikTok have pointed out to at least two or three things. One is because it’s owned by China, because by, owned by a Chinese company, Byte Dance, which is ultimately responsible to the PRC government and ultimately to the Chinese Communist Party, there’s a fear that China could direct Byte Dance to direct TikTok to spew misinformation and disinformation on the app, perhaps in very subtle ways. So you can imagine a case where, say, China is thinking of invading Taiwan. So for six months beforehand, it starts very subtly introducing videos on TikTok. Not directly outrageous, but just subtly suggesting that Taiwan is not a great place, it’s corrupt. Maybe Americans shouldn’t lose any blood or treasure over Taiwan, et cetera, and change public opinion. That’s one concern. 

The second is that China, because its national security law, gives it power to do so, could direct Byte Dance the corporate owner to turn over all the user data, all the information that TikTok collects, just like Facebook and Instagram and other big apps, it vacuums up data about users and turn that information over to Beijing or whatever. 

 

ISAACSON: Well let, let’s start with that one. Turning over the data. What – is there any evidence that they’ve done that, and why would that be so harmful?

 

GERSTELL: So there is no direct evidence that any of this data has been turned over on a wholesale basis, or that TikTok has been directed by the Beijing government to turn over the data. There have been a few instances which TikTok has admitted where some user data about Americans was sent to Beijing and analyzed, some reporters, et cetera. It seemed to be isolated instance. And if you believe TikTok the, the US data is not sent off to to, to China, but it’s either kept in Singapore or the, or in the United States.

 

ISAACSON: Well, when you say, if you believe them, and they say only vetted employees can get very specific things, and it’s otherwise in the US division there. Do we believe them?

 

GERSTELL: I, I, I think most national security professionals say that it’s unrealistic to think that TikTok would in any way refuse a direct order of the Beijing government to turn over data. So if there was a crisis or the Beijing government just wanted to step up pressure on the United States and get some data, perhaps it could reveal some interesting trends. They’re probably not interested in which dance video a teenager in Wichita looks at. Sure, we got that. But but a lot of governments use TikTok. A lot of it’s – although it’s banned on government phones – governments have accounts on it, it could be possible to trace who watches certain government accounts. Perhaps they could combine that with other data that Beijing already collects on people to figure out who is a CIA agent, who’s in the American military, et cetera. You could certainly envision a nefarious use of this data.

 

ISAACSON: But in your piece, you kind of call that overhyped, in a way. Is it?

 

GERSTELL: Well, I, you know, I, I think to some extent, yes. I mean, there is a risk. I don’t want to, I don’t wanna say there’s no risk, but the actual risk of user data being turned over in a meaningful way that will have strategic value to China, I think is pretty low. Yes, of course, in a conflict it, it could be dangerous, but we could then shut the thing off if we are actually on the verge of a conflict. Right now, my guess is it’s a, it’s a risk something we should be aware of. We have ways of mitigating the risk. My concern is much more about the disinformation piece.

 

ISAACSON: Let’s go back now to the idea that Trump’s just not enforcing this thing that 80% of Congress voted for. How can he get away with that?

 

GERSTELL: Well, there’s a, a legal issue, of course, as to whether the president can simply refuse to enforce or decide to pick and choose which laws he wants to enforce. The Constitution, as we all know, says that the president of the United States has to faithfully execute the laws of the United States. I suppose one could argue that there’s some sort of prosecutorial discretion in deciding what laws to enforce. I don’t think that’s really appropriate here. This isn’t a question of a prosecutor deciding not to prosecute someone who’s jaywalking. This is a national security statute passed by bipartisan majorities of the House and Senate, upheld as constitutional by the Supreme Court in the unanimous decision. And if there ever was a statute that we’d want to make sure was enforced, it would be a national security statute. Now, to be fair, on Trump’s side, what he said is that for national security reasons, he wants more authority to continue to delay the implementation of this while he looks at the national security implications, he considers what tariffs he might want to impose on China, he’s looking at it from a different picture. I might add the statute does not give him authority to do that. He’s claiming it on his own.

 

ISAACSON: Well, it was, I think the Attorney General, Pam Bondi, who sent letters to that effect. And she said that “The President has determined that an abrupt shutdown of TikTok would interfere with the execution of the President’s constitutional duties to take care of the national security and foreign affairs of the United States”. Explain here argument to me, and I assume you don’t think it’s a good argument, explain why it’s wrong.

 

GERSTELL: Well, as I said, the statute itself doesn’t, is quite clear. So number one, the statute requires enforcement. There’s nothing about it that, that says it can’t be enforced on these terms by the, by the president. We have not generally had any Supreme Court precedent that says the, the president, in using his powers as commander in chief, has the ability to suspend or not apply laws. Certainly, that’s not a general rule. So it’s of legal question, legally questionable. As I said, the President is making this assertion. Interestingly, members of Congress are not complaining about it. Certainly the members of his own party aren’t going to cross him. And even the Democrats are sort of caught a little bit because they don’t wanna be looking weak on China either. So they’re sort of waiting to see how this all turns out. It’s a, it’s a somewhat delicate situation. 

The part that concerns me most, beyond the legal point of, of whether the president has the power to enforce or decide which laws to enforce, and that’s a significant legal point – I don’t wanna minimize it, but putting that aside – is the fact that this is a little bit of a boy who cried wolf situation, which is, if we have a national security statute that was passed on an urgent basis, and I might add this, was the remedies in the statute, the the ban was adopted without a single hearing. There was no hearing on what alternatives were available. This was so urgent that Congress just rushed into this statute. As I said, decided it was absolutely critical. And now 16 months later, everyone’s saying, well, we can wait a little bit. Let’s just wait and see. And we have an app that half of Americans or a third of Americans are using. 65% of teenagers are using around the country. It’s banned on military phones, government phones, most state government phones. So is this really a national security issue? And if you were an average citizen, you’d say, well, you know, maybe it’s not such a big deal. And what about when the next national security issue crops up and the government says it’s really important to do this or not do that. And the population says, well, you know, we were using TikTok for years after the ban didn’t make a difference. I’m worried about eroding the concerns about the legitimacy of national security statutes.

 

ISAACSON: So does that mean you think we should just quickly ban it?

 

GERSTELL: Well, I happen to think that the entire idea of banning the TikTok was a bad idea as a matter of public policy in the first place. And I would’ve preferred that we adopt some version of a strategy to mitigate it. If, if we’re worried about Chinese risks, we’ve got, I’ve got a lot of other risks that come before this one. And so I would be focusing on those. It, it, TikTok is a risk. I don’t wanna say it isn’t, but I think we have other ways of mitigating it. And so I, I would say that the, the ideal solution would either be, if indeed China will go ahead and release the algorithm, and we can have a a, a legitimate sale. That would be a fine way of doing it. It’d be a consensual sale, and the app is put in American hands or friendly hands, and that would solve it. I think just continuing to extend the ban indefinitely, as I said, erodes some concerns here. I don’t think that’s the right approach.

 

ISAACSON: Why hasn’t there been a legal challenge to the fact that Trump has not enforced this ban?

 

GERSTELL: So it, it’s a little hard to figure out exactly who would have legal standing to do that. Certainly on the political level, members of Congress have been relatively quiet about it. Although chairman John Moolenaar, who’s the head of the China Select Committee, has – although not directly criticizing the president – has said he’s very unhappy with the situation. A number of other Republicans have said that too. Exactly who would have cha– who would have the standing to challenge it is not totally clear. Maybe one of the app stores such as Apple or Google might seek to get a declaratory injunction as to whether the president truly has authority to do that. But it’s not in their interest to make waves. They’re better off just letting the app continue in their situation. The average citizen doesn’t have standing to challenge this law. So it’s a little bit of a legal conundrum.

 

ISAACSON: As you’d mentioned, there was supposed to be a negotiated sale where somehow, in a complex way, the algorithm that’s controlled by the Chinese government would be put into some other entity, and then some American company could buy it. Is that feasible? And what’s the status of that?

 

GERSTELL: This sale would – if it, if it was really going to occur in terms of the statute, which has two basic requirements, one is that the statute says we can rescind the ban, get rid of the ban, and lift it if the app is no longer controlled by a Chinese entity. Which means they can’t even own 20% of the stock. And most importantly, that there’s no operational relationship. That’s the magic words of the statute between China and either the algorithm or the user data. So if you say, how’s, how are we gonna do a deal that in which we can separate this complete, cleanly and completely from China, assuming even by the way that President Xi will allow this, that’s by no means clear. But even if we got over that hurdle and President Xi said, okay, I’ll do a deal for tariffs, and we’ll let the algorithm go. First of all the algorithm is updated daily by engineers in Beijing. So somehow that expertise, this is a very complicated technical thing. That expertise is somehow going to have to shift into American’s hands or whoever owns the app. Take it outta Beijing’s hands. User data will have to be located in the US. That’s probably pretty easy to do. Oracle has already said they’re happy to store the data in their, in their cloud servers. 

But then you’ve got all sorts of really complicated operational questions of, if the app was in the United States on a completely different, separate algorithm, different from the other algorithm that TikTok employees elsewhere around the world for its almost 1.6 billion users all around the rest of the world. How will the two apps work together? How will they mesh? Because a, you know, kid in Brazil who watches American TikTok videos to get the latest dance moves, he or she wants to have access to American TikTok. And frankly, that’s true for American users too. So getting this all to mesh in a, in a operational way is complicated. Figuring out a price tag for it is really difficult because Byte Dance is surely gonna want to charge billions, tens of billions of dollars for giving up this incredibly lucrative app, and they want to make sure the app remains viable elsewhere around the world. So it’s not at all clear to me that a deal is easy.

 

ISAACSON: So you say we ought to do something about it ’cause there is some risk. What would you do?

 

GERSTELL: I would probably go back to some version of insisting that there be American layers of oversight to try to check or stop disinformation if we saw it starting to appear online. And also, the one thing we absolutely can do, ’cause it’s technically possible, is make sure that all user data is locked down in the United States and can’t be, so to speak, siphoned off to Beijing. And there, there would be, there would and should be ways of doing that. And I think those two steps would go a long way to doing it. I mean, on a broader level, you know, Congress could certainly go back and pass fundamental privacy legislation, which it’s been talking about for 20 years. That would go a step towards addressing people’s concerns over user data. It would also apply to Facebook and Instagram and Twitter and everything else. But there, there are steps we can take.

 

ISAACSON: You’ve said that this is sort of a microcosm of a larger problem, which is how we deal with technology that comes from China. Explain some of those other problems.

 

GERSTELL: So we have a pattern in the United States, probably for good reasons, of letting technology innovate and flourish, et cetera, which is all good and something we want to do. And then after flaws become apparent, after misuse, after safety problems – whether it’s airplanes, automobiles, electricity, you name it – we then start to regulate for safety and, and risk reasons. And in the case of Chinese apps it’s the same issue, which is we’ve allowed a large number of Chinese technology, which is good and useful and often inexpensive, to come into our homes and businesses. And then later after we’ve done that, we realize, oh gosh, there’s a user data risk, there’s a political risk, there’s some cybersecurity risk. 

So we have in – I don’t know if it’s the majority of American homes, but certainly a very sizable percentage of American homes – TP routers, TP link routers, which are made in China. They see every piece of internet traffic and email that someone’s home or, or business generates in that. There’s a risk for the same reasons we’ve talked about for TikTok, that some of that data could be inappropriately used by the Chinese government. There are video, almost every video camera from Hikvision to Tapo cameras in your home are manufactured by China. The US doesn’t generally manufacture video cameras. Deep Seek is a big, very popular, recently popular Chinese app that’s in, hosted on cloud servers of Amazon and others here in the United States and is used by American users. So we have a pattern of use –

 

ISAACSON: Deep Seek is the artificial intelligence competitor to chat GPT.

 

GERSTELL: So my point simply is that we have a wide range, if not ubiquitous, of Chinese technology that’s in our homes and businesses. And we awaken to the potential risks only after widespread adoption when it’s very hard to either do something about it, take it away, shut it down. 

There are some cases where we can do that. So for example, several years ago the government was concerned about Huawei telecommunications equipment in our US telephone systems. And the government banned it. The government started a program which the FCC is now funding to basically rip out the equipment from, from US telecom systems. In the case of Huawei equipment, there is no alternative. You either ban it, you either rip it out or not. That’s not the case of TikTok. There are other, other ways of ameliorating the risk. We have Chinese technology and port cranes around the United States that are vital ports. People are concerned about how in a time of crisis, China could send a message paralyzing those cranes and causing all sorts of trade chaos. 

So there are a wide range of Chinese tech applications. Many are useful, many are good. I’m not saying we should ban them, that’s not the suggestion. But we need to have a coherent, principled way of looking at this rather than the whack-a-mole approach that we now have where suddenly something becomes the issue du jour and we focus on that. That’s not a good way to manage the overall risk of Chinese technology. We need it, it’s useful, but we need to address the risks.

 

ISAACSON: Glenn Gerstell, thank you so much for joining us. 

GERSTELL: Thank you so much, Walter.