President Biden has put the TikTok ban into effect on Wednesday, forcing China-based Bytedance to sell the app or face a ban in American app stores. TikTok tells Gizmodo it will fight the law in court, a case that is likely to reach the Supreme Court, saying Biden’s law “tramples on” First Amendment protections. In interviews with Gizmodo, legal experts say TikTok is right.
“My analysis of any situation changes as soon as I hear it’s about national security, because usually that’s a sign that it’s a crappy law,” First Amendment lawyer Marc Randazza said in an interview with Gizmodo. “I don’t allow TikTok in my house, but I can’t think of any constitutional reason to ban it in the United States.”
Lawyers tell Gizmodo that a forced sale or ban on TikTok impacts the speech of three key players: TikTok itself as a publisher; TikTok users who use the app to talk to each other; and the app stores that carry TikTok, just as bookstores have the freedom to carry books they like. Restricting these speeches would require significant criminal offenses on behalf of TikTok. So far, Congress has presented no new evidence, citing only the following:secret briefings” for this law. But let’s go through the long list of congressional allegations.
US Senator Mark Warner called TikTok a “propaganda tool” the Chinese Communist Party in a CBS interview on Sunday. Countless other US lawmakers say this, claiming that TikTok spreads not only Chinese propaganda but also pro-Hamas messages with the aim of sowing disinformation among America’s youth. All of this could be true, but propaganda is not illegal.
“The First Amendment protects the propaganda of foreign governments, which sounds a little strange, but that’s the way it is,” said Eric Goldman, a law professor at Santa Clara University, in an interview with Gizmodo. “Propaganda is both constitutionally protected and something the U.S. government itself engages in on a large scale, undermining any justification the government might offer.”
Americans have the right to hear dissenting opinions, including propaganda, and to make their own judgments. This is a fundamental part of the First Amendment, so this argument will likely fall flat.
Another argument against TikTok is the app’s alleged data collection practices, which could be a better case. US Congressman Michael McCaul called TikTok “a spy balloon in Americans’ phones,The app is alleged to be scraping the personal information of 170 million American users to share with the Chinese government. In 2021, The Information reported that the CCP took a seat on Bytedance’s board, which some see as sufficient evidence that TikTok is spying on Americans. However, Congress only cites “secret briefings” to support these claims.
“Based on the extent to which TikTok has already been tried, I tend to think this is a big bag of nothing,” Goldman said. “In previous cases, the government presented evidence to judges in secret, and those judges still ruled in favor of TikTok. The judges, having seen some of the evidence in question, found it unconvincing.”
Members of Congress called these secret briefings about TikTok’s data collection practices “shocking” revelations about the app’s ability to track and spy. TikTok vehemently denies that it shares data with China and claims it has spent more than $1.5 billion Project Texas to accommodate American data within the United States. A possible trial will bring some of this information to light, but national security cases tend to undermine Americans’ constitutional rights with little public information.
“If the rationale is national security, that rationale for regulation has never worked better,” Randazza said. “The route for regulators here is probably through privacy, but the problem is that we have already given away a lot of that right to privacy to Silicon Valley.”
We already know that homegrown apps are tracking and spying on our behavior because the US has done so no comprehensive data protection law. China probably doesn’t need TikTok to get American data, and this could theoretically be done through much simpler means, such as data brokers. These companies buy American data from Silicon Valley and sell it to third parties, one of which was recently revealed to be the property of the US government National Security Agency.
Ultimately, legal experts agree with TikTok that a government-ordered sale or ban of a social media app limits the free expression of many players. The US government needs solid evidence that TikTok is not an angel in this case, otherwise the law may not hold up in court.