Prospects and Wisdom of U.S. TikTok Ban Debated as Company Mounts Legal Challenge

This week, as expected, embattled short-video platform TikTok and its Chinese parent Bytedance launched a legal challenge to recent U.S. legislation requiring that TikTok’s American operations be either sold off within nine to 12 months, or shut down. The measure passed with bipartisan support as part of a national security package also including aid for Israel, Ukraine, and Taiwan. It is the latest in a years-long series of efforts to address the perceived threat posed by the app’s Chinese ownership, given its huge popularity among primarily young Americans. Earlier attempts foundered in the courts, but the new bill is the product of extensive work behind the scenes to design around those legal hurdles. Part of this is its framing as a choice: in the words of Republican congressman Mike Gallagher, a key architect of the bill, “We’re not talking about an outright ban; we’re trying to force a sale … this bill presents a great opportunity for ByteDance to divest of TikTok and continue operating in the United States. This decision is squarely in TikTok’s hands.”

But numerous observers have argued that a sale is unrealistic given the tight schedule, questions of valuation, a limited pool of buyers, and Chinese export controls. Bytedance itself, having previously stated that it would prefer to shut down TikTok’s U.S. operations than to sell them, is leaning heavily on this argument in its legal challenge. From Drew Harwell at The Washington Post:

“Banning TikTok is so obviously unconstitutional, in fact, that even the Act’s sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok’s ownership,” the challenge states.

“In reality, there is no choice,” it adds. A forced sale “is simply not possible: not commercially, not technologically, not legally.”

[…] “If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down,” the filing says. “Congress has never before crafted a two-tiered speech regime with one set of rules for one named platform, and another set of rules for everyone else.”

[…] TikTok and ByteDance contend that the government has acted not with “any proof of a compelling interest, but on speculative and analytically flawed concerns about data security and content manipulation — concerns that, even if grounded in fact, could be addressed through far less restrictive and more narrowly tailored means.”

[…] The challenge also seeks to use Congress members’ words against it, noting that the law’s supporters said they were also motivated by their distaste for the videos on the platform related to the Israel-Gaza war and other issues — a content-specific decision that First Amendment scholars say could weaken the government’s case. [Source]

The Wall Street Journal’s Jacob Gershman and Meghan Bobrowsky reported on the challenge’s uncertain prospects, which may rest on the U.S. government’s ability to show more evidence of a threat:

In the coming litigation, the Justice Department will need to show that Congress had compelling reasons that justify the burdens on free speech that come with shutting down a popular communications platform. It will also have to rebut arguments by TikTok that lawmakers’ concerns could have been addressed through restrictions that were more narrowly tailored than a ban or forced sale of the app.

The concerns have to be more than speculative, said David Greene, a lawyer with digital civil liberties nonprofit Electronic Frontier Foundation, which opposes the ban.

“They’re going to have to show this is a real and actual security concern, not a hypothetical,” he said.

[…] “It’s going to turn on whether the national security argument put forward by the government is strong enough,” said Alan Rozenshtein, a University of Minnesota constitutional law professor. “At the end of the day, that’s what this comes down to.” [Source]

The Biden campaign’s continued use of the platform might send somewhat mixed messages about the severity of the threat. The Trump campaign is reportedly also considering adopting it. (Despite signing an earlier federal ban attempt, Trump now says he opposes a ban, and is seeking to blame Biden for pursuing one. His former Vice President Mike Pence, meanwhile, has condemned Trump’s U-turn, writing at FOX News that “Today, every politician likes to talk tough on China. Unfortunately, too many politicians talk a big game but crack under the pressure of wealthy donors or personal grudges—including my former running mate. When lobbyists for a company controlled by the Chinese Communist Party can turn a former president against his own political legacy, we should all be concerned.”)

Several lawmakers have expressed concern about the threat posed by TikTok based on classified briefings—Senator Mark Warner, for example, told reporters that “at the end of the day, [people opposed to a ban have] not seen what Congress has seen.” Others privy to the same information, though, appear unconvinced that TikTok poses a clear threat above and beyond its American counterparts: Senator Ed Markey, for example, has said that “discussion of TikTok that does not discuss all the other American social media companies is missing the forest for the trees.”

In terms of public evidence, some research comparing hashtag use on TikTok and Instagram has suggested that topics deemed unfavorable to Beijing’s interests appear underrepresented on TikTok. There are demographic differences between the two platforms’ user bases, though, and with parent company Meta accused of skewing content on similar topics, it is unclear whether Instagram offers a fair basis for comparison. NPR reported last month that some researchers tracking Chinese overseas influence operations have said that “they have not seen a particular focus on the app that goes beyond other popular platforms such as Facebook, Instagram and YouTube.”

There have been repeated reports from TikTok insiders contradicting the company’s claims of effective separation from its Chinese parent. Doubts have been raised over the credibility of some self-proclaimed whistleblowers, but the volume of the accounts keeps increasing. Late last month, for example, Hannah Murphy, Cristina Criddle, and Eleanor Olcott at The Financial Times reported:

More than two dozen current and former employees told the Financial Times that TikTok has only become more deeply interwoven with ByteDance as tensions over the app’s ownership escalated.

[…] “There’s this sort of veneer or facade that these two companies are separate,” said Joël Carter, a former US ads policy manager who left in August 2023. “Really, they’re one and the same.”

[…] Policy and content moderation decisions have been a flashpoint. According to three former staff members familiar with the matter, TikTok’s trust and safety team has previously been at loggerheads with staff in China over content featuring the popular dance move twerking.

Chinese leaders have deemed twerking too sexually suggestive, demanding it be taken down or rendered harder to find, the people said, while their US counterparts have repeatedly pushed back. [Source]

CDT has been assured that twerking videos remain abundant on TikTok. On one hand, the example shows the platform successfully resisting pressure over content decisions; on the other, it undercuts its claims that no such pressure exists. This week, Caiwei Chen and Viola Zhou at Rest of World also reported that “more than a dozen current and former U.S.-based TikTok employees […] say that TikTok’s ties to ByteDance go further than what the company presents.”

TikTok itself inadvertently provided a demonstration of its mobilization potential during what now appears a disastrously misjudged lobbying campaign chronicled by Brendan Bordelon at Politico:

[…] Through an in-app notification shot to users around the country, it urged people to call their representatives and express their opposition to the bill. Congressional offices were soon flooded with calls from upset TikTok users, some reportedly threatening to harm themselves if the app was banned.

The effort backfired spectacularly. Lawmakers from both parties seethed over the attempted show of force — Helberg said it “reinforced and validated” congressional fears that TikTok wielded too much influence over vulnerable Americans. And Lewis said he spoke with a number of Hill offices who only decided to vote for the bill after being bombarded with angry calls. [Source]

The company may now face additional investigation for deceptive business practices for describing the bill as a straightforward ban in its message to users.

At The Intercept in March, Ken Klippenstein noted that public statements from intelligence officials have so far consistently framed the security threat from TikTok as hypothetical. Writing at Lawfare before the bill’s passage through the Senate, though, Alan Z. Rozenshtein argued that “The manipulation threat is speculative, but not really“:

[…] Many critics of the law argue that the concern about Chinese interference is speculative, and they have a point. There isn’t smoking-gun evidence—at least not that the government is willing to disclose—of Chinese meddling in the TikTok algorithm (though there’s certainly justified suspicion). The lack of evidence of significant overt influence operations on the platform isn’t surprising; given how powerful control over TikTok could be in the case of a true crisis in U.S.-Chinese relations (think a war over Taiwan), it would make sense for China to keep its powder dry as long as possible. But this lack of evidence still poses a challenge for defenders of the law, especially given that the First Amendment harms from a TikTok ban—at a minimum disrupting the communication of tens of millions of American users as they migrate to alternative platforms—is anything but speculative.

But the threat of Chinese influence over TikTok is speculative only to a point. China has vividly and on numerous occasions demonstrated that it has the necessary means and motives. The Chinese government is famously prickly about its image and how outsiders view it […. A]s the State Department noted in a report released last year, China “employs a variety of deceptive and coercive methods,” including “propaganda, disinformation, and censorship,” to “influence the international information environment.”

The Chinese government’s willingness to boss around nominally private Chinese companies is also well established. The line between private companies and the Chinese state is notoriously blurry and, if business executives step out of line, the Chinese government is more than willing to punish them harshly and publicly. When Jack Ma, founder of Chinese e-commerce giant Alibaba, criticized Chinese financial regulations in 2020, he disappeared from public view for years and was forced to dramatically restructure his company. Ma is only one of many executives to have discovered the limits of personal wealth and business independence.

When push comes to shove, there’s no reason to think that the Chinese would not pull every lever they have to gain a strategic advantage over the United States, and this includes manipulating how millions of Americans get their information. [Source]

Speaking to Rebecca Bellan at TechCrunch, Freedom House’s Yaqiu Wang similarly noted that the hypotheticals in question are ones with abundant precedent behind them:

“There’s a structural issue that a lot of people who don’t work on China don’t understand, which is that by virtue of being a Chinese company — any Chinese company whether you’re public or private — you have to answer to the Chinese government,” Wang told TechCrunch, citing the Chinese government’s record for leveraging private companies for political purposes. “The political system dictates that. So [the data privacy issue] is one concern.”

“The other is the possibility of the Chinese government to push propaganda or suppress content that it doesn’t like and basically manipulate the content seen by Americans,” she continued.

Wang said there isn’t enough systemic information at present to prove the Chinese government has done this in regards to U.S. politics, but the threat is still there.

“Chinese companies are beholden to the Chinese government which absolutely has an agenda to undermine freedom around the world,” said Wang. She noted that while China doesn’t appear to have a specific agenda to suppress content or push propaganda in the U.S. today, tensions between the two countries continue to rise. If a future conflict comes to a head, China could “really leverage TikTok in a way they’re not doing now.”

[… But] Wang says more important than a ban on TikTok is comprehensive data privacy law that protects user data from being exploited and breached by all companies.

“I mean if China wants Facebook data today, it can just purchase it on the market,” Wang points out. [Source]

Many others have argued that in terms of access to data, the ban will make little difference in the absence of broader privacy protections. The Biden administration issued an Executive Order in February “to prevent the large-scale transfer of Americans’ personal data to countries of concern,” but there is widespread skepticism about its effectiveness. There have also been signs of movement on long-awaited general privacy regulation, but The Washington Post reported that “expectations are low” for prospects of breaking the long legislative deadlock on the issue.

Casey Newton discussed relevant precedents with several legal scholars at Platformer, noting that all of them agreed on the case’s unpredictability.

The Supreme Court has previously held that Congress can’t ban foreign propaganda, including propaganda from China. In Lamont vs. Postmaster General, the court considered a law that required the postmaster general to detain “communist political propaganda” sent through the mail. The Post Office was then required to send the addressee a card asking whether they wanted the propaganda to be delivered, in what the court ultimately ruled had an unconstitutional chilling effect on speech.

If Congress can’t even require people to fill out a form to receive propaganda, the logic goes, it seems even less likely that the Supreme Court would find that Congress could ban TikTok over the still unsupported claims that it is deliberately amplifying pro-China or pro-Hamas content.

“It’s a fundamental principle of the First Amendment that the government can’t ban speech on the basis that they don’t like it, or that they’re convinced it’s going to convince people of ideas they don’t like,” said Evelyn Douek, an assistant professor of Law at Stanford Law School and First Amendment scholar, who pointed me to the Lamont case.

[… But] “National security tends to be a context where fundamental constitutional rights unfortunately do give way, and we do see courts bow to the pressure,” Douek said. “So there absolutely is uncertainty. Even if I’m 110 percent confident that the precedents say one thing, that doesn’t make me anywhere near 100 percent confident that that’s what the court will say.” [Source]

Other observers have argued that there is ample precedent for regulation of foreign ownership. From Fordham Law School’s Zephyr Teachout at The Atlantic, for example:

[…] In an era of globalization and free trade, the idea of the U.S. government blocking foreign ownership of a tech platform seems so extreme that there must be some darker explanation. But this intuition is mistaken. The idea that we must enact barriers to foreign-government surveillance and political interference is actually a very old one, embedded in both American history and the logic of democratic self-determination. Forbidding a hostile foreign power from controlling a major communication platform fits into a long and important tradition of American self-government.

[…] Other laws limit foreign control of different forms of infrastructure. The Defense Production Act authorizes the executive branch to block proposed or pending foreign corporate mergers that threaten national security. Vessels transporting cargo between two points in the United States must be U.S.-built and U.S.-owned. Certain defense contracts cannot be awarded to foreign-government-controlled companies unless specifically authorized by the secretary of defense. The Federal Energy Regulatory Commission can issue licenses for constructing dams or transmission lines only to U.S. entities, and geothermal lessees have foreign-ownership limits. As the Vanderbilt University law professor Ganesh Sitaraman has argued, the body of law limiting foreign ownership in various sectors can mostly be understood through the lens of platform regulation: They prevent foreign governments from taking over core elements of infrastructure.

This includes communications infrastructure. Limits on foreign ownership have been a part of federal communications policy for more than a century. The Radio Act of 1912 was the first federal limitation on ownership of communications infrastructure, forbidding foreign ownership of radio stations. It expanded and set a blueprint for later communications rules—Rupert Murdoch, for example, had to become an American citizen to avoid Federal Communications Commission rules banning foreign owners of American TV networks—which were based on the twin fears of espionage and propaganda. TikTok, of course, falls right at the intersection of those fears. [Source]

Similarly, from Donald Clarke in a recent interview with Miranda Wilson at U.S.-China Perceptions Monitor:

I don’t find the arguments against the bill terribly compelling. For example, let’s suppose TikTok were owned by an American company and ByteDance proposed to buy it, and then Congress or the President, acting through some existing law, prohibited the sale. Would anyone say this posed a First Amendment problem? I don’t think so. I don’t see how reversing the timeline significantly changes the analysis. The U.S. has a long history of banning foreign ownership in certain sectors, including the media. Rupert Murdoch, for example, famously had to acquire U.S. citizenship in order to own his media properties in the U.S. I don’t see the idea that Congress could ban foreign ownership of TikTok as new or original, particularly because it’s a media platform. [Source]

While some debate the bill’s prospects, others have questioned its wisdom. The First Amendment aspects of the case are not merely a factor in the bill’s survival, but also about the basic principle of free speech itself, and America’s global advocacy for it. The American Civil Liberties Union argued along these lines in a letter to Congress on April 19, urging representatives to vote against the new law:

The Protecting Americans from Foreign Adversary Controlled Applications Act would functionally ban the distribution of TikTok in the United States and would grant the President broad new powers to ban other social media platforms based on their country of origin. We urge you to oppose this bill because it is censorship —plain and simple. The longer period to divest is of no practical consequence.

This legislation would forbid app stores and internet hosting services from offering TikTok so long as the company remains under foreign ownership. Passing this legislation would trample on the constitutional right to freedom of speech of millions of people in the United States. TikTok is used by more than 170 million individuals across the country to engage in protected speech including political organizing, sharing their art, and accessing news and information. Jeopardizing access to the platform jeopardizes access to free expression. [Source]

TikTok’s very ability to mount a substantial legal challenge, and the open discussion surrounding it, demonstrates a substantial difference between the prospective TikTok ban and China’s repeated blocking of foreign websites and platforms. Nevertheless, similarities do exist, and are unsettling to many. Columbia Law School’s Tim Wu argued at The New York Times that the bill “sends a message to the world: You cannot disregard basic internet norms and expect to be treated just like any other country.” But others fear that the message received will be different—that, as China has often claimed, American appeals to rights and norms are just a weapon it uses against others, without sincerely adopting them itself. From Jason Kelley and Brendan Gilligan at the Electronic Frontier Foundation after Biden signed the bill:

Until now, the United States has championed the free flow of information around the world as a fundamental democratic principle and called out other nations when they have shut down internet access or banned social media apps and other online communications tools. In doing so, the U.S. has deemed restrictions on the free flow of information to be undemocratic. Enacting this legislation has undermined this long standing, democratic principle. It has also undermined the U.S. government’s moral authority to call out other nations for when they shut down internet access or ban social media apps and other online communications tools.

There are a few reasons legislators have given to ban TikTok. One is to change the type of content on the app—a clear First Amendment violation. The second is to protect data privacy. Our lawmakers should work to protect data privacy, but this was the wrong approach. They should prevent any company—regardless of where it is based—from collecting massive amounts of our detailed personal data, which is then made available to data brokers, U.S. government agencies, and even foreign adversaries. They should solve the real problem of out-of-control privacy invasions by enacting comprehensive consumer data privacy legislation. Instead, as happens far too often, our government’s actions are vastly overreaching while also deeply underserving the public. [Source]

At The New York Times last month, David McCabe reported on similar concerns around the world:

A Russian opposition blogger, Aleksandr Gorbunov, posted on social media last month that Russia could use the move to shut down services like YouTube. And digital rights advocates globally are expressing fears of a ripple effect, with the United States providing cover for authoritarians who want to censor the internet.

In March, the Chinese government, which controls its country’s internet, said America had “one way of saying and doing things about the United States, and another way of saying and doing things about other countries,” citing the TikTok legislation.

[…] “It would diminish the U.S.’s standing in promoting internet freedom,” said Juan Carlos Lara, the executive director of Derechos Digitales, a Latin American digital rights group based in Chile. “It would definitely not bolster its own case for promoting a free and secure, stable and interoperable internet.”

[…] Mishi Choudhary, a lawyer who founded the New Delhi-based Software Freedom Law Center, said the Indian government would also use a U.S. ban to justify further crackdowns. It has already engaged in internet shutdowns, she said, and it banned TikTok in 2020 over border conflicts with China.

[…] Mr. Lara of Derechos Digitales noted that countries like Venezuela and Nicaragua had already passed laws that gave the government more control over online content. He said increased government control of the internet was a “tempting idea” that “really risks materializing if such a thing is seen in places like the U.S.” [Source]

Financial Times columnist John Thornhill commented last week:

When Washington looks at China, it tends to see an ideological, interventionist, authoritarian superpower that favours its own companies while subverting foreign rivals. When it looks in the mirror, Washington sees the US as a pragmatic, capitalistic, democratic superpower that champions free speech and robust competition. When it comes to the narrow treatment of TikTok in the US and Tesla in China, however, those stereotypes appear to have blurred. It is the US that is becoming more dogmatic while China is becoming more pragmatic.

[…] Whatever their rhetorical posturing, it is perhaps naive to expect consistency in the policy positions of Washington or Beijing. Naked self-interest is normally a better guide to any nation’s actions, meaning both countries are sometimes flexible on points of principle. Wherever they can, the US and China adhere to the power law identified by the Greek historian Thucydides centuries ago: “The strong do what they can and the weak suffer what they must.” [Source]

Several critics argue that TikTok has become a scapegoat for broader anxieties. 404 Media’s Jason Koebler wrote that “TikTok and the specter of China’s control of it has become a blank canvas for which anyone who has any complaint about social media to paint their argument on, and has become a punching bag receiving scrutiny we should also be applying to every other social media giant.” Arguing at The New Yorker that “A TikTok Ban Won’t Fix Social Media,” Kyle Chayka suggested that “The U.S. ban makes most sense as a political stunt: bellicose actions against China are popular across the political spectrum, and the demographic most vocally upset by the threatened ban are those too young to vote.” At The Atlantic, Louise Matsakis took on TikTok’s portrayal by ban-backers as “programmable fentanyl” peddled to Western children while its Chinese counterpart Douyin purportedly serves wholesome digital spinach to young Chinese:

These comparisons are grossly exaggerated, and the truth is that kids in China regularly view content on Douyin that may be dangerous or harmful, just as kids around the world do on TikTok and every other large internet platform. But there’s something more perplexing—and, frankly, alarming—about this line of thinking, and the extent to which people have begun to imply that Americans can learn lessons from how the internet is regulated in China, where an oppressive regime regularly blocks foreign-owned apps and censors what information citizens can access on the internet.

“China is much more thoughtful and protective of its young people” when it comes to social media, Democratic Senator Chris Murphy said at an event earlier this year. “The fact that China has been far more effective in protecting its children from the excesses of technology should make western legislators think,” the British journalist Camilla Cavendish wrote in the Financial Times around the same time, adding, “We are hardly going to win the battle with China over artificial intelligence, or anything else, if we raise a generation of zombies.”

[…] The urge to figure out how to protect young people online is, of course, understandable. Many experts worry that children are experiencing profoundly negative side effects from social media, and much of what China has done in this area is part of a sincere attempt to address the same concerns shared by parents everywhere. In this light, it’s tempting to argue that America could also reasonably trade everyone’s digital privacy in exchange for keeping kids safe. But we can look at what has happened in China and see the obvious problem with that logic: It would trap the U.S. in a never-ending game of whack-a-mole. [Source]

In an op-ed at The New York Times, Rory Truex—an associate professor at Princeton whose work focuses on Chinese authoritarianismcautioned that:

America’s collective national body is suffering from a chronic case of China anxiety. Nearly anything with the word “Chinese” in front of it now triggers a fear response in our political system, muddling our ability to properly gauge and contextualize threats. This has led the U.S. government and American politicians to pursue policies grounded in repression and exclusion, mirroring the authoritarian system that they seek to combat.

Congress has moved to force the sale of TikTok, the Chinese-owned social media application; some states have sought restrictions on Chinese individuals or entities owning U.S. land and on Chinese researchers working in American universities; and the federal government has barred certain Chinese technology firms from competing in our markets. These measures all have a national security rationale, and it is not my intention here to weigh the merits of every one. But collectively they are yielding a United States that is fundamentally more closed — and more like China in meaningful ways.

[…] China is a formidable geopolitical rival. But there is no world in which garlic, “Barbie” or a tutoring site poses meaningful threats to American national security. Labeling them as such reveals a certain lack of seriousness in our policy discourse.

If the United States is to properly compete with China, it’s going to require healthy, balanced policymaking that protects U.S. national security without compromising core American values.

Let’s take a deep breath. [Source]


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