Tech Bill Hinders Private Companies’ Digital-Security Efforts

T here is no shortage of cyber threats facing the United States. In recent years, several government agencies and critical infrastructure have been hit by foreign cyberattacks. Tensions are building as the United States’ role in the situation in Ukraine is putting the country increasingly at odds with Russia. With House speaker Nancy Pelosi’s (D., Calif.) recent trip to Taiwan, the specter of Chinese retaliation, too, against the U.S. has reared its ugly head. Indeed, Taiwan suffered a barrage of cyberattacks in the immediate lead-up to Pelosi’s visit.

Naturally, American lawmakers are trying to sew up potential vulnerabilities to prevent further attacks. One such vulnerability, on which several elected officials have focused, is TikTok: the popular, video-based, social-media company. This comes after a recent report alleged TikTok’s parent company, ByteDance, shares U.S. user data with the Chinese government. One lawmaker who has sounded the alarm is Senator Marsha Blackburn (R., Tenn.), saying, “[TikTok] is both a national security threat and a surveillance threat to millions of Americans.”

This is ironic, as Blackburn is one of the lead sponsors of the Open App Markets Act (OAMA), which would make it more difficult for major American tech companies to isolate TikTok, should it become seen as representing such a threat. OAMA would make it presumptively illegal for app-store providers — like Apple or Google — to prevent applications from being downloaded to their devices.

OAMA would require app stores with over 50 million customers — a threshold that both Apple and Google meet comfortably — to “provide readily accessible means” for users to download software that may not be available on their own app stores. Barring this, there would be grounds for the FTC to initiate proceedings against them. So, if Apple or Google decided TikTok is a threat to its operating systems, and then decided to ban TikTok, it would face hefty antitrust scrutiny under Blackburn’s legislation.

Of her bill, Blackburn said upon its introduction, “Apple and Google want to prevent developers and consumers from using third-party app stores that would threaten their bottom line. Their anticompetitive conduct is a direct affront to a free and fair marketplace.”

First, this reflects a fundamental misunderstanding of free and fair marketplaces. A truly free market would not dictate that any private company do business with any other. It’s that freedom of association that keeps the market thriving and allows it to distinguish good, safe, and efficient products and services. If companies do not have the freedom to refuse to do business with one another, then the government is effectively picking winners and losers.

Second, there are good reasons companies like Apple or Google might refuse to host an app developer on their app stores. One is a failure to reach an agreement on terms or compensation — a normal function of the free market. Another is an absence of demonstrated demand or upside — another possible, reasonable, free-market calculation. Yet another, however, is that the app-store provider determines that a developer poses a security threat to its users.

This is how the current discussion of cyber threats has come to the forefront. As of now, neither Apple nor Google has made a determination regarding TikTok. A few reasons for this are features such as the “Do Not Track” option on smartphones and the variety of parental controls available to users. These features provide a reasonable buffer against adversarial actions for which the app might be used. However, not only would OAMA make it presumptively illegal to bar a malicious app from an app store, it would also render these commonsense safeguards anticompetitive.

Apple, Google, or some of their peers may eventually deem false TikTok’s assertions that it does not share U.S. data with foreign powers and potential hackers. But the discussion about this bill should not be centered on the merits or safety of one particular app. It should, instead, be chiefly about the fact that OAMA — by presuming anticompetitive motives for app restrictions, and by making it incumbent on the companies to prove otherwise — would force American tech companies to ask the federal government for permission to secure their devices.

Practically and legally, under the proposed OAMA, it would be a major undertaking for, say, Apple and Google to keep a potentially dangerous app off their devices. Even if they were to brave a lawsuit, OAMA would mandate that companies allow side-loading: an end-around by which users would be able to bypass guardrails erected by their device providers. The bill states that a relevant company must allow users to “install third-party apps or app stores through means other than its app store.”

American tech companies are constantly trying to shield their customers from potential threats. This is to secure trust in their brands (which is a reasonable enough objective as such), but it can also serve the national interest. For the federal government to undermine these defensive efforts would be to expose millions of Americans to potential hacks, to sideline the experts most capable of countering the threat, and to allow the country to fall in the crosshairs of malicious actors.