Breaking down TikTok’s legal arguments around free speech, national security claims

Social media platform TikTok says a bill banning the app in the United States is “unconstitutional” and that it will fight this latest attempt to restrict its use in court.

The bill in question, which President Joe Biden signed on Wednesday, gives Chinese parent company ByteDance nine months to divest TikTok or face a ban on app stores from distributing the app in the U.S. The law received strong bipartisan support in the House and a majority vote in the Senate. Tuesday, and is part of broader legislation that includes military aid for Israel and Ukraine.

“Don’t make mistakes. This is a ban. A ban on TikTok and a ban on you and YOUR voice,” said TikTok CEO Shou Chew in a video posted on the app and other social media platforms. “Politicians may say the opposite, but let’s not get confused. Many of the bill’s sponsors admit that banning TikTok is its ultimate goal… It’s actually ironic because free speech on TikTok reflects the same American values ​​that make America a beacon of freedom. “TikTok offers everyday Americans a powerful way to be seen and heard, and that’s why so many people have made TikTok part of their daily lives,” he added.

This is not the first time the US government has attempted to ban TikTok, something several other countries have already implemented.

TikTok is based in Los Angeles and Singapore, but is owned by Chinese tech giant ByteDance. US officials have warned that the app could be exploited to promote the interests of an “entity of interest.”

In 2020, former President Donald Trump issued an executive order to ban TikTok’s operations in the country, including a deadline for ByteDance to divest its US operations. Trump also attempted to ban new TikTok downloads in the US and banned transactions with ByteDance after a specific date.

Federal judges issued preliminary injunctions to temporarily block Trump’s ban while legal challenges proceeded, citing concerns about violating First Amendment rights and a lack of sufficient evidence showing that TikTok posed a national security threat.

After Trump left office, the Biden administration took up the anti-TikTok baton. Today, the same basic fundamentals are at play. So why do Congress and the White House believe the outcome will be different?

TikTok has not responded to TechCrunch’s question about whether it has filed a challenge in district court, but we know it will because both Chew and the company have said so.

When the company comes before a judge, what are its chances of success?

TikTok’s ‘unconstitutional’ argument against a ban

“In light of the fact that the Trump administration’s attempt in 2020 to force ByteDance to sell TikTok or face a ban was challenged on First Amendment grounds and was rejected as ‘indirect regulation of informational materials and personal communications’ inadmissible, together with the decision of last December. federal court order prohibiting enforcement of the Montana law that sought to impose a state ban on TikTok as a ‘probable’ violation of the First Amendment, I believe this latest legislation suffers from the same fundamental illness,” Douglas E. Mirell told TechCrunch , partner at Greenberg Glusker. .

In other words, both TikTok as a corporation and its users have First Amendment rights, threatening a ban.

In May 2023, Montana Governor Greg Gianforte signed a bill into law that would ban TikTok in the state, saying it would protect the personal and private data of Montanans from the Chinese Communist Party. TikTok then sued the state over the law, arguing that it violated the Constitution and that the state was overreaching by legislating national security issues. The case is still ongoing and the ban has been blocked while the lawsuit moves forward.

Five TikTok creators separately sued Montana arguing that the ban violated its First Amendment rights and won. Therefore, this ruling prevented the Montana law from taking effect and essentially stopped the ban. A US federal judge said the ban exceeded state power and was also unconstitutional, likely a violation of the First Amendment. That ruling has set a precedent for future cases.

TikTok’s challenge to this latest federal bill will likely point to that court ruling, as well as court mandates from Trump’s executive orders, as precedent for why this ban should be reversed.

TikTok can also argue that a ban would affect small and medium-sized businesses that use the platform to make a living. Earlier this month, TikTok released an economic impact report claiming the platform generated $14.7 billion for small and medium-sized businesses last year, in anticipation of a ban and the need for arguments against it.

The threat to “national security”

Mirell says courts do give deference to government claims that entities are a threat to national security.

However, the 1971 Pentagon Papers case, in which the Supreme Court upheld the right to publish a classified Department of Defense study on the Vietnam War, sets an exceptionally high bar for surpassing freedom of speech protections. expression and the press.

“In this case, Congress’s failure to identify a specific national security threat posed by TikTok only compounds the difficulty of establishing a substantial, much less compelling, government interest in any potential ban,” Mirell said.

However, there is some cause for concern that the firewall between TikTok in the US and its parent company in China may not be as strong as it seems.

In June 2022, a report from BuzzFeed News found that staff in China had repeatedly accessed US data, citing recordings of 80 internal TikTok meetings. There has also been reports in the past, Beijing-based teams have ordered American TikTok employees to restrict videos on its platform or TikTok has told its moderators to censor videos that mention things like Tiananmen Square, Tibetan independence, or the religious group Falun Gong banned.

In 2020, there were also reports That TikTok moderators were asked to censor political speech and delete posts from “undesirable users” (the unattractive, the poor, and the disabled), showing that the company is not afraid to manipulate the algorithm for its own purposes. own purposes.

TikTok has largely ignored such allegations, but following the BuzzFeed report, the company said it would move all US traffic to Oracle’s infrastructure cloud service to keep US users’ data private. That deal, part of a broader operation called “Project Texas,” focuses on promoting the separation of TikTok’s U.S. operations from China and employing an outside company to oversee its algorithms. In its statements responding to Biden’s signing of the TikTok ban, the company has pointed to the billions of dollars invested to protect user data and keep the platform free from outside manipulation as a result of the Texas Project and other efforts. .

Yaqui Wang, director of China research at the political advocacy group Freedom House, believes the data privacy problem is real.

“There is a structural issue that many people who do not work in China do not understand, and that is that, by virtue of being a Chinese company – any Chinese company, whether public or private – you have to answer to the authorities. Chinese government,” Wang told TechCrunch, citing the Chinese government’s history of leveraging private companies for political purposes. “The political system dictates that. So [the data privacy issue] It is a concern.”

“The other is the possibility of the Chinese government pushing propaganda or suppressing content they don’t like and basically manipulating the content seen by Americans,” he continued.

Wang said there is currently not enough systemic information to prove that the Chinese government has done this with respect to US policy, 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,” Wang said. He noted that while China does not appear to have a specific agenda to suppress content or push propaganda in the United States United 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 that it’s not doing now.”

Of course, American companies have also been at the center of attempts by foreign entities to undermine democratic processes. One need look no further than the Cambridge Analytica scandal and Russia’s use of Facebook political ads to influence the 2016 presidential election as a high-profile example.

That’s why Wang says more important than a ban on TikTok is a 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 buy it on the market,” Wang says.

TikTok’s chances in court are unclear

The government has difficult arguments to make and it is not a sure decision one way or the other. If the precedent set by previous court rulings is applied in the future TikTok case, then the company will have nothing to worry about. After all, as Mirell has speculated, the TikTok ban appears to have been added as a necessary sweetener to pass a broader bill that would approve aid to Israel and Ukraine. However, it’s possible that the current administration simply didn’t agree with how the courts decided to limit TikTok in the past and wants to challenge that.

“When this case goes to court, the Government (i.e., the Department of Justice) will ultimately have to demonstrate that TikTok poses an imminent threat to the nation’s national security and that there are no other viable alternatives to protect that interest.” of national security other than the divestment/ban required in this legislation,” Mirell told TechCrunch in a follow-up email.

“For its part, TikTok will assert that its own (and perhaps its users’) First Amendment rights are at stake, challenge all claims that the platform poses any national security risk, and argue that efforts already undertaken both by the Government (for example, through its ban on the use of TikTok on all federal government devices) and by TikTok itself (for example, through its ‘Project Texas’ initiative) have effectively mitigated any significant threat to national security,” he explained.

In December 2022, Biden signed an invoice ban the use of TikTok on federal government devices. Congress has also been considering a bill called the Restraint Act that gives the federal government more authority to address the risks posed by foreign-owned tech platforms.

“If Congress did not think that [Project Texas] If it were enough, they could draft and consider legislation to improve that protection,” Mirell said. “There are many ways to address data security and potential influence issues, far beyond divestment, let alone banning.”

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