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New TikTok ban is poised to advance in Congress

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WASHINGTON — The U.S. House Foreign Affairs Committee plans to take up legislation Tuesday that would give President Joe Biden the authority to ban TikTok, the Chinese social media app used by more than 100 million Americans.

The panel is scheduled to vote on a series of China-related bills Tuesday afternoon, including one that would revise the longstanding protections that have shielded distributors of foreign creative content like TikTok from U.S. sanctions for decades. Introduced last Friday, H.R. 1153 is expected to pass the committee on Tuesday.

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The bill that could ultimately ensnare TikTok, owned by China’s ByteDance, only has one sponsor, the committee’s newly seated Republican chairman, Texas Rep. Mike McCaul.

Typically, a bill this new, with only one sponsor, would not move to committee votes just days after it was introduced. But the choice of which bills will advance through a committee is made by each committee’s chairman, so McCaul’s sponsorship is effectively all the bill needs.

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If the measure is approved by a majority of the committee members and referred to the full House for a vote, as expected, H.R. 1153 will effectively leap frog several other proposals to ban TikTok that were previously introduced in the House and Senate, but haven’t yet advanced through the committee process.

After that, McCaul’s bill would likely pass the Republican-controlled House easily. But its fate in the Democratic majority Senate is unclear.

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Despite the bitter divisions between the two parties on nearly every major issue, there is one thing both Democrats and Republicans overwhelmingly support: proactive measures to stem China’s growing global influence. And H.R. 1153 could do that.

In practical terms, the bill would revise a group of rules known as the Berman amendments that were first enacted near the end of the Cold War, intended to shield “informational materials” like books and magazines from sanctions-related import and export bans.

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Over time, however, the Berman amendments were expanded into a broad rule that courts interpreted as prohibiting the government from using sanctions powers to block trade in any informational materials, including digital content, to or from a foreign country.

In 2020, TikTok argued successfully in court that it was covered by the Berman amendments exemption when it beat back attempts by the Trump administration to ban its distribution by Apple and Google app stores.

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McCaul told CNBC his bill would change this. “Currently the courts have questioned the administration’s authority to sanction TikTok. My bill empowers the administration to ban TikTok or any software applications that threaten U.S. national security,” McCaul said in a statement Monday.

Under McCaul’s bill, the Berman amendments exemptions that have protected TikTok in the past would no longer apply to companies that engage in the transfer of the “sensitive personal data” of Americans to entities or individuals based in, or controlled by, China.

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On first reading, McCaul’s legislation appears to be broader than some of the other TikTok bills that have been introduced so far.

Critics and TikTok lobbyists have argued that those prior bills amounted to punishing the company for a crime outside the legal system. They also argue that any ban is tantamount to censorship of content protected by the First Amendment.

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“It would be unfortunate if the House Foreign Affairs Committee were to censor millions of Americans,” TikTok spokeswoman Brooke Oberwetter told CNBC in an email Monday.

TikTok is no stranger to rough political waters, having been in the crosshairs of U.S. lawmakers since former President Donald Trump declared his intention to ban the app by executive action in 2020.

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At the time, ByteDance was looking to potentially spin off TikTok to keep the app from being shut down.

In September 2020, Trump said he would approve an arrangement for TikTok to work with Oracle on a cloud deal and Walmart on a commercial partnership to keep it alive.

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Those deals never materialized, however, and two months later Trump was defeated by Biden in the 2020 presidential election.

The Biden administration kept up the pressure. While Biden quickly revoked the executive orders banning TikTok, he replaced them with his own, setting out more of a road map for how the government should evaluate the risks of an app connected to foreign adversaries.

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TikTok has continued to engage with the Committee on Foreign Investment in the U.S., which is under the Treasury Department. CFIUS, which evaluates risks associated with foreign investment deals, is scrutinizing ByteDance’s purchase of Musical.ly, which was announced in 2017.

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The CFIUS review has reportedly stalled, but TikTok spokeswoman Oberwetter said the company still favors the deal.

“The swiftest and most thorough way to address national security concerns is for CFIUS to adopt the proposed agreement that we worked with them on for nearly two years,” she told CNBC on Monday.

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In the meantime, government officials from the FBI and the Department of Justice have publicly warned about the dangers of using the app, and many states have imposed bans of their own.

On Monday, the Biden administration released new implementation rules for a TikTok ban that applies only to federal government-owned devices, which was passed by Congress in December.

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Earlier this month, Sens. Richard Blumenthal, D-Conn., chair of the Senate Judiciary subcommittee on privacy, and Jerry Moran, R-Kan., a member of the Senate Select Committee on Intelligence, said in a letter that CFIUS should “swiftly conclude its investigation and impose strict structural restrictions between TikTok’s American operations and its Chinese parent company, ByteDance, including potentially separating the companies.”

But while the executive branch scrutinizes TikTok through CFIUS, McCaul and the GOP-controlled House are not waiting around for them to act.

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“TikTok is a security threat. It allows the CCP [Chinese Communist Party] to manipulate and monitor its users while it gobbles up Americans’ data to be used for their malign activities,” McCaul told CNBC.

If TikTok-related legislation looks like it’s moving swiftly through Congress, that could spook investors, and work to the benefit of some of the company’s biggest competitors.

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TikTok has been taking market share from Facebook, Instagram and Google‘s YouTube, which have all seen advertising slow dramatically over the past year.

According to Insider Intelligence, TikTok controls 2.3% of the worldwide digital ad market, putting it behind only Google (including YouTube), Facebook (including Instagram), Amazon and Alibaba.

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— CNBC’s Ari Levy contributed to this story from San Francisco.



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British regulator softens stance on Microsoft-Activision deal competition concerns

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An Activision Blizzard’s Call of Duty: Modern Warfare video game is inserted into the Microsoft’s Xbox One video game console arranged in Denver, Colorado, on Wednesday, Jan. 19, 2022.
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The U.K.’s Competition and Markets Authority on Friday said it has narrowed the scope of its investigation into Microsoft’s takeover of games publisher Activision, in a major reprieve for the U.S. tech giant as it pursues an expansion of its video game business.
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In February, the CMA published provisional findings from its probe into the takeover, stating at the time that the transaction may result in higher prices, fewer choices and less innovation. Among its concerns, the regulator flagged that the deal would cause a substantial lessening of competition in the console gaming market.

Since then, the regulator has received a “significant amount” of feedback from various industry participants on the deal. With this new evidence, the CMA now says it no longer believes the transaction will hamper competition in console games.

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“Having considered the additional evidence provided, we have now provisionally concluded that the merger will not result in a substantial lessening of competition in console gaming services because the cost to Microsoft of withholding Call of Duty from PlayStation would outweigh any gains from taking such action,” Martin Coleman, chair of the independent panel of experts conducting the CMA investigation, said in a statement Friday.

“Our provisional view that this deal raises concerns in the cloud gaming market is not affected by today’s announcement. Our investigation remains on course for completion by the end of April.”

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Shares of Activision Blizzard surged more than 6% in U.S. premarket trading. Microsoft shares were slightly lower amid a broad market slump.

The CMA announcement comes after the U.S. technology giant has also won support from some companies that were against the deal, or sitting on the fence.

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One of the major concerns from Microsoft’s competitors was that the transaction would block distribution access to Activision’s crown jewel franchise — “Call of Duty.” Last month, Microsoft said it signed a “binding 10-year legal agreement” to bring Call of Duty to Nintendo players on the same day as Microsoft’s Xbox, “with full feature and content parity.”

Additionally, Microsoft signed a deal with Nvidia to bring its Xbox games to Nvidia’s GeForce Now cloud gaming service. Microsoft said it would also bring the Activision games library to Nvidia’s service, if the acquisition closes. Nvidia was reportedly against Microsoft’s Activision takeover. 

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But Microsoft has yet to bring onside its biggest rival, Sony, which owns the PlayStation console. Microsoft President Brad Smith told CNBC last month that the company is offering Sony the same agreement as it did Nintendo — to make Call of Duty available on PlayStation at the same time as on Xbox, with the same features. Sony still opposes the deal.

Microsoft looks to allay EU fears over Activision takeover with Nintendo, NVIDIA deals

“We appreciate the CMA’s rigorous and thorough evaluation of the evidence and welcome its updated provisional findings,” a Microsoft spokesperson told CNBC via email.

“This deal will provide more players with more choice in how they play Call of Duty and their favorite games. We look forward to working with the CMA to resolve any outstanding concerns.”

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An Activision spokesperson told CNBC that the CMA’s updated provisional findings “show an improved understanding of the console gaming market and demonstrate a commitment to supporting players and competition.”

“Sony’s campaign to protect its dominance by blocking our merger can’t overcome the facts, and Microsoft has already presented effective and enforceable remedies to address each of the CMA’s remaining concerns. We know this deal will benefit competition, innovation, and consumers in the UK.”

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Microsoft still faces uncertainty from regulators in the U.S. and European Union. Smith travelled to Brussels last month to meet with EU regulators.

In the U.S., the Federal Trade Commission filed an antitrust case against Microsoft attempting to block the Activision deal.

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Some major companies retain reservations about the acquisition, which includes Google parent Alphabet, according to Bloomberg.

CNBC’s Steve Kovach contributed to this report

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TikTok wants to distance itself from China — but Beijing is getting involved

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China and U.S. flags are seen near a TikTok logo in this illustration picture taken July 16, 2020.
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BEIJING — China says it would “strongly oppose” a forced sale of TikTok, making clear the government’s involvement with the social media giant that’s trying hard to distance itself from Beijing authorities.
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The Ministry of Commerce said Thursday that a sale or spinoff of TikTok from its Beijing-based parent ByteDance is subject to Chinese law on tech exports — which requires licenses for the export of certain technology based on national security concerns. ByteDance also owns Douyin, the Chinese version of TikTok that’s popular in the country.

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“The Chinese government would make a decision in accordance with law,” said spokesperson Shu Jueting in Chinese, translated by CNBC.

Shu was speaking at the ministry’s weekly press conference, hours ahead of TikTok CEO Shou Zi Chew’s testimony before a U.S. House of Representatives committee.

Lawmakers questioned Chew for more than five hours, and wanted clarity on TikTok’s ability to operate independently of Chinese influences on its parent.

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ByteDance did not immediately respond to a request for comment on the Chinese Commerce Ministry’s remarks.

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The questioning did not appear to relieve U.S. lawmakers.

“At the end of the day, it was clear from the testimony that Mr. Chew reports to the CEO of ByteDance. ByteDance controls TikTok,” Cameron Kelly, visiting fellow at Brookings Institution, told CNBC’s “Squawk Box Asia” Friday. Kelly used to be a general counsel at the U.S. Department of Commerce from 2009 to 2013.

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Kelly said the evidence that ByteDance has legal control of TikTok increases U.S. lawmakers’ doubts over how well the app can demonstrate its independence through restructuring.

TikTok has a “Project Texas” plan to store American user data on U.S. soil — in a bid to show the company’s claims that mainland Chinese authorities have no access to them.

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Beijing … is now double-daring Congress and the Administration to ‘make my day.’

Daniel Russel

Asia Society Policy Institute

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“I don’t think a shutdown a ban or a complete divestiture [of TikTok] is needed. But I do think you have to separate that legal control,” said Kelly, noting that could be done through a trust structure. 

But the commerce ministry’s claim of control over a TikTok sale or spinoff indicates Beijing wants to be involved.

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“The Chinese government’s public declaration that it would block the sale of TikTok in the U.S. has little to do with protection of Chinese algorithms and technology and a lot to do with giving Washington a taste of its own medicine,” Daniel Russel, vice president for international security and diplomacy, Asia Society Policy Institute, said in a statement.

“Beijing, having heard [U.S. Commerce] Secretary Raymond’s lament that banning TikTok would infuriate voters under 35, is now double-daring Congress and the Administration to ‘make my day,’” Russel said. 

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The U.S. has increased restrictions on the ability of American businesses and individuals to work with Chinese businesses on critical tech for high-end semiconductors.

When asked about the commerce ministry’s remarks Thursday, TikTok’s CEO said the app isn’t available in mainland China and is based in Los Angeles. But he said the company did use some of ByteDance’s Chinese employees’ expertise on “engineering projects.”

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TikTok CEO Shou Zi Chew testifies before the House Energy and Commerce Committee in the Rayburn House Office Building on Capitol Hill on March 23, 2023 in Washington, DC.

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Chew also told U.S. lawmakers that China-based employees at its parent company ByteDance may still have access to some U.S. data, but that new data will stop flowing once the firm completes its Project Texas plan.

Official Chinese comments have previously emphasized that China-based companies should comply with local laws and regulations when operating overseas.

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It’s not immediately clear how China’s export control law, enacted in December 2020, might apply to TikTok.

Different types of exports are managed by different government organizations, “each of which has a separate regulatory system,” the EU Chamber of Commerce in China said in its latest position paper. It called for greater clarity on the roles of the different bodies involved with implementing the export control law.

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What’s next for TikTok?

The U.S. and China have increasingly invoked national security as a reason to control tech.

“To be fair, there really are indeed genuine national security risks associated with [TikTok] — and that is one reason why a ban of the app from government phones and military phones makes sense,” said Glenn Gerstell, senior advisor at Center for Strategic and International Studies on CNBC’s “Street Signs Asia” Friday. Gerstell was general counsel of the National Security Agency from 2015 to 2020.

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“As to the general public, I don’t see the strategic value in China understanding what the dance moves of a teenager in Minneapolis are. So the general public ban doesn’t make sense to me,” he said.

TikTok has more than 150 million users in the U.S. — or about half of the country’s population.

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It’s unclear whether the U.S. will ultimately force ByteDance to sell TikTok or prohibit use of the app in the country. The wildly popular app is already banned from federal government devices.

“We see a 3-6 month period ahead for ByteDance and TikTok to work out a sale to a US tech player with a spin-off less likely and extremely complex to pull off,” Dan Ives, analyst at Wedbush Securities, said in a note.

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“If ByteDance fights against this forced sale, TikTok will likely be banned in the US by late 2023.”

— CNBC’s Lauren Feiner contributed to this report.

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Crypto firm Tether says it has around $1.6 billion in excess reserves to back its USDT stablecoin

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Paolo Ardoino, Tether’s chief technology officer, said the company estimates that the excess reserve will increase by $700 million in the current quarter, which is not yet over.
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Cryptocurrency firm Tether estimates it will make $700 million profit in the March quarter, taking its total excess reserves to over $1 billion, the company’s technology chief told CNBC, revealing the latest figures for the first time.
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Tether issues the USDT stablecoin, which is pegged one to one with the U.S. dollar. USDT is backed by real-world assets such as fiat currency and U.S. Treasurys so that it is always one to one redeemable with the U.S. dollar.

Stablecoins are used by traders to move in and out of different cryptocurrencies without the need to convert money back into fiat currencies.

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Over the years, stablecoin issuers have been criticized for not being transparent enough with the type of assets they hold in their reserve to back their digital currency. Tether held commercial paper, or short-term, unsecured debt that is issued by companies. But Tether didn’t reveal the type of firms or geographical location of companies it had brought the debt from.

Tether eventually sold all of its commercial holdings and moved into U.S. Treasurys, which are considered a more stable and reliable asset. The company produces so-called attestations, which are reports produced by an auditor to attest to the company’s reserves and the assets it holds.

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The last report Tether released covering the December quarter showed it had more assets than liabilities.

Tether then revealed in February that it made $700 million in profit in the December quarter. The company’s total assets once liabilities are substracted amount to $960.6 million.

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Paolo Ardoino, Tether’s chief technology officer, said the company estimates that the excess reserves will increase by $700 million in the current quarter, which is not yet over. That would take Tether’s excess reserves to $1.66 billion. And it would be the first time Tether crosses the $1 billion mark.

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“So this money stays in Tether in the main company in order to further capitalize the stablecoin,” Ardoino said.

Tether makes money from various fees, such as a $1,000 withdrawal fee (with a minimum withdrawal requirement amount of $100,000); from investments in digital tokens and precious metals; and from issuing loans to other institutions.

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Circle’s wobbles help Tether

The value of all the USDT in circulation has grown substantially this month from $70.98 billion on March 1 to $78.14 billion on Thursday, according to CoinMarketCap.

That’s thanks in part to the collapse of Silicon Valley Bank this month. Circle, which issues a rival stablecoin called USD Coin, revealed it had $3.3 billion exposure to SVB. USDC lost its dollar peg as investors got concerned about the coin’s stability. Investors flocked to tether. After the U.S. government stepped in to guarantee depositors, USDC regained its peg after it said the $3.3 billion USDC reserve deposit held at SVB will be fully available to people.

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Ardoino revealed Tether’s estimated profit for the current quarter while defending the company’s record. When asked if Tether would be able to withstand an event like the SVB crisis, Ardoino asked why people are still questioning its reserves even after traditional lenders collapsed.

“First of all, seriously after Credit Suisse and all the others, all the banks that are failing you are looking again at Tether?” Ardoino said in reference to the instability at Credit Suisse, which eventually led to a regulator-brokered $3.2 billion deal for UBS to buy the Swiss lender.

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“Tether is making money and banks are failing. So if you have to put money somewhere, I guess that Tether is the most safe among all the choices,” Ardoino said.

CNBC’s Ryan Browne contributed to this report.

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