By Tundun Oladipo
Legislators are often playing catchup with technology, and unfortunately, it is common for legislators not to understand the technology they are trying to regulate or cannot agree on the best way to regulate it.[1] Often times, the time spent playing catchup is enough for the technology to evolve and change to something far beyond its origins, leaving legislators back at square one[2].
Social media has always been a great example of technology that legislation could not keep up with. The most popular example is Facebook’s many data privacy issues.[3] It is one thing to have these issues domestically, but recently it has increasingly become an international issue for the United States as well.[4]
Many were outraged by the discovery of China’s spy balloon in the United States earlier this year[5]. It was found floating over the state of Montana and was shot down not too long after discovery.[6] This intrusion on American privacy, coupled with the feelings of outrage, led to many states taking action against China through their legislators. Many states and congress turned their attention to TikTok and began instituting bans of the social media app from government devices because of its ties to China and security concerns[7].
The Commonwealth of Virginia is one of 29 states and counting that have acted against TikTok[8]. The ban of TikTok began with Virginia’s Governor Glenn Youngkin.[9] He issued an executive order banning TikTok from state-owned devices, and the Virginia General Assembly made the ban permanent by passing a bill in both the House and Senate to prevent the use of TikTok on government device or internet. [10]
Despite the bipartisan support for the ban, a heavy debate was had about the bill’s effectiveness and, more specifically, the efficacy of a ban via legislation.[11] Senators in the chamber raised valid points about the fluidity of technology and the technology industry as a whole. The legislation, as written, prohibits the “use [of] any application…or access [of] any website developed by ByteDance Ltd. or Tencent Holdings Ltd” [12]. Many senators were concerned that this definition was too limited and that the same applications could be sold to another company or that ByteDance or Tencent Holdings could change their name and would no longer be affected by this ban. Effectively China (or any other technology) could find its way around this ban, and then legislators would have to return to rework the bill the next year.
This argument has some merit as the Biden Administration recently had to add 59 Chinese Companies to the list of companies Americans were no longer allowed to invest in[13]. This comes only two years after the initial list was released because other companies had been created sharing similarities. [14] Flexibility has not always been the law’s strong suit, and many Virginia senators called for the ban to remain in the hands of the Governor and the executive branch specifically to allow for flexibility; once the Virginia session ends, the law will remain as is till the following year[15]. Other senators argued that the ban from the governor could only go so far and may come to an end with his term.[16]
Despite Virginia being ranked as one of the most effective state legislatures, they still have to catch up to ever-changing technology.[17] The idea of Law and Technology may quickly be fading with the speed that technology is changing, and reactionary measures for technology may need to break out of the current legislative structures to keep up.
[1] Brett Milano, Big Tech’s power growing at runaway speed, Harvard Gazette (Feb. 7, 2019), https://news.harvard.edu/gazette/story/2019/02/government-cant-keep-up-with-technologys-growth/; Alex Sherman, U.S. lawmakers agree Big Tech has too much power, but what to do about it remains a mystery, CNBC (last updated Jul. 30, 2020, 02:29 PM EDT), https://www.cnbc.com/2020/07/30/us-lawmakers-agree-big-tech-has-too-much-power-remedies-unclear.html.
[2] Rae Hodge, 60% of people worry that tech is moving too fast, study finds, CNET (Feb. 25, 2020, 10:24 AM PT), https://www.cnet.com/tech/tech-industry/global-trust-in-technology-declining-report-says/.
[3] Facebook data privacy scandal: A cheat sheet, TechRepublic (Jul. 30, 2020, 11:37 AM PDT), https://www.techrepublic.com/article/facebook-data-privacy-scandal-a-cheat-sheet/.
[4] Supra note 1; James Stavridis and Frances Townsend, US tech at risk of falling behind, threatening our global interests, Armytimes (Oct. 28, 2020), https://www.armytimes.com/opinion/commentary/2020/10/28/us-tech-at-risk-of-falling-behind-threatening-our-global-interests/.
[5] Martha Raddatz, Luis Martinez, and Karson You, Large Chinese reconnaissance balloon spotted over the US, officials say, abcNews (Feb. 3, 2023, 09:23 AM), https://abcnews.go.com/Politics/chinese-spy-balloon-surveilling-us-senior-official/story?id=96860718
[6] Id.
[7] Sarah Elbeshbishi, Congress weighing TikTok ban following Chinese spy balloon discovery, USA Today (last updated Feb. 15, 2023, 02:46 PM ET), https://www.usatoday.com/story/news/politics/2023/02/14/tiktok-ban-china-spy-relations/11134410002/; Andrew Adams, Updated: Where Is TikTok Banned? Tracking State by State, govTech (last Updated Feb. 21, 2023), https://www.govtech.com/biz/data/where-is-tiktok-banned-tracking-the-action-state-by-state
[8] Id.
[9] Ned Oliver, The Virginia General Assembly is taking on China, MSN (Feb. 14 , 2023) ,https://www.msn.com/en-us/news/politics/the-virginia-general-assembly-is-taking-on-china/ar-AA17t65P
[10] Id.
[11] February 7, 2023 – Regular Session – 10:00 am – Feb 7th, 2023, (Feb. 7, 2023) https://virginia-senate.granicus.com/MediaPlayer.php?view_id=3&clip_id=5715
[12] SB 1459, LIS, (last visited Feb. 23, 2023) https://lis.virginia.gov/cgi-bin/legp604.exe?ses=231&typ=bil&val=sb1459
[13] Biden expands US investment ban on Chinese firms, BBC News (June 3, 2021), https://www.bbc.com/news/business-57334265
[14] Id.
[15] supra note 7.
[16] Id.
[17] FiscalNote Releases 2021 “Most Effective States” Legislative Report, FiscalNote (Dec. 14, 2021), https://fiscalnote.com/press-room/most-effective-states-legislative-report-release-legislative-report
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