House China panel asks FTC to probe whether TikTok violated child privacy law

WASHINGTON — The leaders of a bipartisan congressional panel focused on China have asked the Federal Trade Commission to investigate whether TikTok violated laws intended to protect children in its lobbying effort against legislation that could ban the app in the U.S., according to a letter obtained exclusively by NBC News.

The new Republican chairman of the House Select Committee on the Chinese Communist Party, John Moolenaar of Michigan, and the committee’s top Democrat, Raja Krishnamoorthi of Illinois, sent a letter Thursday asking FTC Chair Lina Khan to examine the pop-up messages TikTok sent to users in March as the House fast-tracked a bill to force TikTok’s Chinese-based owner, ByteDance, to divest or face a nationwide ban.

Specifically, the duo want to know whether TikTok violated the Children’s Online Privacy Protection Act, which gives parents the ability to review and consent to what information websites and apps collect from children.

Moolenaar and Krishnamoorthi write that TikTok “pushed intrusive and deceptive pop-up messages to a reportedly large number of users, including children, that requested personal information and prompted them to contact Congress in opposition” to the legislation.

As Congress worked to pass the legislation that could ban TikTok, the app fought back with pop-up messages to its users that read “Stop a TikTok shutdown” in big, white letters and urged them to call their representatives in Congress.

An updated version of the bill passed through Congress as part of a national security supplemental package and was signed by President Joe Biden. ByteDance now has to divest from TikTok within nine months if it wants to continue operating in the U.S., though the president can grant an additional 90-day extension. The company has vowed legal action that could delay any ban.

"While the House was considering our bill, TikTok transformed its app into an emergency messaging system for the CCP [Chinese Communist Party], misleading users about the bill and encouraging children to call our offices," Moolenaar said in a statement to NBC News.

Moolenaar and Krishnamoorthi want the FTC to look at whether children under the age of 13 received the pop-ups. TikTok maintains that the notifications only went to users 18 years and older.

“This letter doesn’t pass the smell test," a TikTok spokesperson told NBC News. "As we've said repeatedly, these notifications went to users aged 18 and older and users receiving them always had multiple options to dismiss the notification. It is disheartening that Members of Congress are expressing concern simply because they heard from their own constituents imploring them not to pass a bill trampling on their First Amendment rights."

The lawmakers are concerned that the TikTok pop-ups asked for personal information like users’ ZIP codes to find their representatives. An update to the child privacy law in 2013 included geolocation as one type of data that could not be gathered from children without parental consent.

The law, however, does not hold companies liable if a user lies about their age to use the service. TikTok says it follows FTC guidance related to the ages of its users and removes accounts when it finds that a user has lied about their age. The company releases quarterly reports that include the number of accounts removed that were suspected to be under the age of 13.

In the letter, Moolenaar and Krishamoorthi also ask the FTC to examine if the social media company violated Section 5 of the FTC Act, which prohibits ‘‘unfair or deceptive acts” in commerce, referring to the pop-ups as "deceptive" for the language used to describe the bill's implications for the app. (Members of Congress have pushed back on calling the bill a "ban," noting that TikTok can divest to continuing operating in the U.S.)

The FTC has said that violations of Section 5 occur when a company’s misrepresentations “is likely to affect the consumer’s conduct or decision” with respect to a product.

“TikTok’s influence campaign targeting Americans — including young children — in certain Members’ districts and soliciting further information about their location once they accessed the app is disturbing," Krishnamoorthi said in a statement. "TikTok has violated children’s privacy laws in the past, and this may be the latest chapter."

This is the first joint letter from Moolenaar and Krishnamoorthi since the Republican took over leading the panel after the former chairman, Mike Gallagher, resigned early from the House last week.