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Banning TikTok and the path forward

TikTok is under fire on the heels of its CEO Shou Zi Chew’s testimony before Congress this week. And for good reason. It’s undeniable that TikTok is more than just an innocuous dancing app.

As Rep. Cathy McMorris Rodgers (R-Wash.), chairwoman of the House Committee on Energy and Commerce, perfectly summed up in Thursday’s hearing: “We do not trust TikTok will ever embrace American values — values for freedom, human rights and innovation. TikTok has repeatedly chosen the path for more control, more surveillance and more manipulation. [It] should be banned.”

Ranking Member Frank Pallone (D-N.J.) in the same hearing asked Chew to clarify the role that Project Texas, the app’s restructuring plan aimed at instilling American confidence in TikTok’s operations and security, has in protecting against China’s influence over the company. Pallone was not convinced, saying, “I still believe that the Beijing communist government will still control and have the ability to influence what you do.”

This is very troubling given that TikTok collects information about users’ voices and faces and tracks their location. It reportedly ignores privacy settings to listen in even when people aren’t using it. It is a sophisticated tool designed to monitor users and collect their physical characteristics much like other social media companies do.

But TikTok has one troubling distinction from its competitors — the Chinese government may be the one watching. Currently, the FBI and Justice Department are investigating how ByteDance (TikTok’s Chinese parent company) uses the app to spy on American journalists.

Such potential access from a foreign government to Americans’ data prompted the Biden administration to call for a full ban of the app in our domestic markets, which harkens back to what the Trump administration attempted in its 2020 executive order.

Under that order, President Trump sought to use his emergency economic powers as outlined in the International Emergency Economic Powers Act (IEEPA) to prohibit any American from transacting with ByteDance. The practical effect of Trump’s order would have been a total ban. It would have even forced Apple and Google to remove the app from their platforms unless ByteDance divested from TikTok. 

In response, TikTok sued in a couple of federal district courts on the basis that such an action would violate the company’s First Amendment and due process rights. The courts did not rule affirmatively on TikTok’s First Amendment claims.

But the district courts agreed on TikTok’s due process point in finding that the Trump administration’s order did not pass muster under administrative law. U.S. District judge Wendy Beetlestone found that the order exceeded the president’s authority under the IEEPA. Similarly, Federal D.C. District Court judge Carl Nicolas granted TikTok’s request to halt enforcement because he felt that the order “likely overstepped” its use of presidential emergency powers “and acted in an arbitrary and capricious manner by failing to consider obvious alternatives.” Thus, the courts granted TikTok’s request to stay enforcement.

Given that the courts’ primary concerns were in the wording of the IEEPA, they are easily rectifiable by an act of Congress. Congress would need to clarify the president’s emergency economic powers to include using his authority in such a way. Thankfully, Congress is well underway into figuring this out. What’s more, President Biden stated publicly that he would support a ban on TikTok in the event Congress was able to get something passed. 

Clarifying IEEPA would address the courts’ administrative law questions. What’s more, as even the harshest critics agree, it would be a content-neutral way of banning TikTok. To pass content-neutral laws, the government would need to show that the restraint on speech, if any, is narrowly tailored to serve a “significant government interest” and leaves open reasonable alternative avenues for expression. 

TikTok’s current corporate structure is a national security threat. Given that the app has 80 million active American users, TikTok’s lackluster data-privacy practices and ByteDance’s relationship to the Chinese Communist Party (CCP) are a preeminent concern to our national security.

ByteDance is subject to China’s Data Security Law, which allows the government to regulate private companies’ practices for storing and managing information in China if they collect “core data” — a broad term that means anything Beijing sees as a national or security concern. Given that it’s clear that ByteDance can access and have access TikTok’s data, there’s very little doubt ByteDance can store it and send off to the CCP.

Worse, FBI Director Christopher Wray warned that the CCP could use TikTok’s algorithms for “influence operations,” i.e. to conduct espionage. Also, it’s well established that the CCP seeks to militarize its artificial intelligence capabilities, and we have to assume TikTok is part of that strategy if the Chinese government can use it in this way.

Given that such a law would be rooted in protecting national security, limited to TikTok and allow users access to other social media sites (e.g., Instagram, YouTube, Snapchat, etc.), this approach would seem to pass constitutional scrutiny under the First Amendment. 

What’s more, Congress has in the past placed restrictions on access to digital public squares in the name of public safety and national security. For example, the Fight Online Sex Trafficking Act allowed the Department of Justice to shut down for facilitating and promoting the sex trafficking of minors. 

In the communications network context, the D.C. Circuit Court of Appeals upheld the Federal Communications Commission’s ban on China Mobile over national security concerns, a decision that did not raise First Amendment concerns. 

In short, forcing a ByteDance divesture may be the best way to quell concerns over TikTok without violating the Constitution. 

Joel Thayer is president of the Digital Progress Institute and a Washington-based telecom and tech attorney.

Tags ByteDance Cathy McMorris Rodgers Cathy McMorris Rodgers China Frank Pallone Frank Pallone International Emergency Economic Powers Act Joe Biden Shou Zi Chew Shou Zi Chew tiktok TikTok ban United States

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