Faculty member examines federal ban on TikTok in The Conversation
This article was recently published by The Conversation Canada.
By Robert Diab, professor, law
On Nov. 6, the Canadian government did something unexpected: it ordered the owners of the social media app TikTok to wind up their operations in Canada — without banning the app itself. The reason had to do with national security concerns that were not disclosed.
Many are wondering what kind of threat TikTok poses by having offices in Toronto and Vancouver, or how shutting them down would make Canada safer.
One legal expert has suggested that ordering TikTok to leave Canada without banning the app “may actually make matters worse” because it would make it harder to enforce Canadian law against TikTok. Far better to let the company operate here, but pass law to address concerns about the possible misuse of the app.
We can assume the government thought the problem was more serious, and that TikTok’s offices here had to be closed down. But why?
There are only two possible reasons for the ban, and neither of them is convincing.
Fear of TikTok
TikTok has been the object of controversy in Canada, the United States and countries around the world on the basis of its ties to the Chinese government.
TikTok’s parent company, ByteDance Inc., is based in Beijing. Under Chinese law, the government can, in theory, order ByteDance to disclose personal data of TikTok users or to carry out disinformation campaigns in foreign countries.
TikTok denies that China has interfered in this way, but there is some evidence of the Chinese government having directed company officials to spy on journalists in the U.S. and to track protesters in Hong Kong.
These fears prompted United States Congress last year to pass a law compelling ByteDance to sell its American subsidiary by Jan. 19, 2025, or have the app banned in the U.S.
Security review
The same concerns triggered a review under provisions of the Investment Canada Act. The act allows the Ministry of Innovation, Science and Industry to order that a foreign-owned company in Canada be wound down if its operation is “injurious to national security.”
Industry Minister François-Philippe Champagne said that, after “rigorous scrutiny by Canada’s national security and intelligence community,” there were “specific national security risks related to ByteDance Ltd.’s operations in Canada.”
He did not specify the nature of the risk, saying only that “the decision was based on the information and evidence collected over the course of the review and on the advice of Canada’s security and intelligence community and other government partners.”
TikTok was quick to assert its intent to appeal. In an email to the CBC, the company said “shutting down TikTok’s Canadian offices and destroying hundreds of well-paying local jobs is not in anyone’s best interest, and today’s shutdown order will do just that.”
Challenges to the ban
With an election looming, banning the app would be politically disastrous.
But aside from this, a ban would be challenged under the Charter of Rights and Freedoms on the grounds of freedom of expression. To defend it, the government would have to divulge sensitive information or expose how tenuous their concerns about ByteDance happen to be. Either way, the government would lose.
Champagne may also have chosen not to ban the app because he agreed that concerns about the platform itself are mostly speculative.
Fears about the Chinese government obtaining access to user data or using the app to advance misinformation campaigns seem misplaced. The Chinese government can readily obtain most of the same information from several commercial sources, and could easily advance a misinformation campaign by using surrogates on any other social media platform.
Speculative reasons
The minister’s reasons for banning the company from operating here are also probably only speculative, pointing to two possibilities.
One is that people on the ground — in Toronto or Vancouver — can assist the Chinese government with misinformation campaigns by directly interceding with influencers or politicians. Being here might make it easier to conduct meetings, move money or gather information. But since all of this can be done without relying on TikTok employees, this doesn’t seem plausible.
Another possibility is that being located in Canada somehow gives TikTok more effective and dangerous access to our telecommunications infrastructure. But here too, if China wanted to interfere in Canada in this way, it wouldn’t need to rely on people at TikTok.
This leads to the conclusion that whatever national security concerns the Canadian government has about TikTok operating on Canadian soil are likely tenuous at best.
TikTok’s operations here may pose a serious threat. But we shouldn’t be asked to take those concerns on faith.