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Abstract

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation and rulemaking likewise prohibit or restrict the transfer of sensitive personal data of U.S. persons to foreign adversary governments and entities under their control.

This protectionist turn is a sign of American vulnerability. It reveals deep-seated insecurities—if not an unintended admission that the United States is losing ground in a technological “great power competition.” For a long time, there was no reason for the United States to act defensively. However, after decades of unchallenged American technology hegemony, TikTok burst on the scene. For the first time, a substantial element of U.S. digital infrastructure was no longer under the ultimate control of the U.S. government. And for the first time in the digital age, the United States found itself on the receiving end of potential massive surveillance. This Article contends that this challenge to the American dominance of internet services, paired with fierce, great power competition for global military and political supremacy, is a key factor that significantly contributed to the seismic shift in U.S. data policy.

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