As the US considers banning TikTok, lawmakers are also looking to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA). This would allow intelligence agencies to conduct warrantless spying on foreigners’ online communications. The US government maintains that foreign citizens overseas have no rights to protection from warrantless searches under the Fourth Amendment of the US Constitution. This would provide the likes of the National Security Agency (NSA), Federal Bureau of Investigation (FBI) and Central Intelligence Agency (CIA) practically free rein to snoop on their communications, with information potentially shared with US allies.
The lack of privacy for billions of internet users outside the US mirrors the threat that US officials say TikTok poses to Americans. Washington has jurisdiction over the handful of companies that run the internet including Google, Meta, Amazon and Microsoft, which gives the US an advantage that other countries do not share. While the US has been very vocal about TikTok, its stance on privacy protection of non-Americans remains unknown.
A ban or forced sale of ByteDance’s stake appears likely, and the app has already been banned on US government devices and official devices in some countries. In an appearance before Congress on 24 March, TikTok CEO Shou Zi Chew failed to satisfy Republicans and Democrats with his answers to a barrage of questions about data privacy and national security concerns stemming from a Chinese law that requires local companies to “support, assist and cooperate with the state intelligence work”.
Despite the growing chorus of voices casting TikTok as a threat, the privacy rights of non-Americans have received little mention. The American Civil Liberties Union (ACLU) estimates that the US government has collected over one billion communications per year since 2011. In 2021, the US targeted 232,432 “non-US persons” for surveillance, according to government data. “It is a little bit ironic for the US to trumpet citizens’ privacy concerns or worries about surveillance. It’s OK for them to collect the data, but they don’t want China to collect it,” said Jonathan Hafetz, an expert on US constitutional law and national security.
China, which has been accused of spying on a mass scale, has said it would “firmly oppose” a forced sale of TikTok and that basing such an action on “foreign ownership, rather than its products and services” would damage investor confidence in the US. China has also in the past accused the US of hypocrisy on the issue of cybersecurity, pointing to spying programmes like PRISM, which was first revealed in 2013 by former NSA analyst and whistle-blower Edward Snowden.
