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Editor's Pick

Could the Latest TikTok “Ban” Pass Constitutional Muster?

Jennifer Huddleston

TikTok logo crossed out superimposed over a backdrop of the US Capitol.

Last Thursday, the House Energy and Commerce Committee “favorably reported” a new bill that could ban popular social media TikTok. Advocates of the bill often point to concerns about national security either related to potential Chinese access to American data or to concerns about the potential influence that the Chinese might assert over the algorithm of a popular app.

In a recent joint interview with Republican Senator Marco Rubio, Democrat Senator Mark Warner said, “We might have slightly different ways on how we go at this, but we think this is a national security issue.” They are not alone with other government officials like FBI Director Christopher Wray pointing to a Chinese law that requires companies to “do whatever the government wants them to in terms of sharing information or serving as a tool of the Chinese government” as a key reason for national security concerns.

Supporters of the bill are quick to state it is not a “ban,” but the bill does threaten a ban if its conditions are not met. The bill raises serious concerns for speech as well as for future government interventions into social media. (My colleague Paul Matzko discussed some of the concerns about this bill in a piece on Friday.)

What Does the Bill Actually Do?

HR 7521, Protecting Americans from Foreign Adversary Controlled Applications Act, prohibits the distribution, maintenance, or updating of an app “controlled by a foreign adversary” within 180 days of the bill’s enactment unless a “qualified divestiture”—a sale approved by the government’s executive branch to alleviate the underlying concerns—occurs. The bill presumes that TikTok and parent company ByteDance already meet the “controlled by a foreign adversary” standard by naming the app and its parent company multiple times.

Unlike past proposals, the bill provides an option for a sale rather than an immediate ban; however, it creates concerning conditions in that regard as well. The proposal requires the divestiture to be approved by the government, meaning that any proposed buyer would likely be open to significant regulatory scrutiny, particularly given the government’s current positioning towards acquisitions in the tech industry. But still, this distinction will likely be important in any legal challenges to the act even if, in practice, it is unlikely to be different from a true ban.

What Is the Standard and How Might It Apply to This Bill?

As I have discussed in the past, calls to ban TikTok typically raise constitutional concerns not only over potential government actions’ impact on TikTok but also for the potential impact on the First Amendment rights of other companies (like the American‐​owned app stores that carry the app) and its users. Americans would lose a platform they have chosen for expression and app stores would have dictated to them what they could not carry by the government.

Under First Amendment precedents, the government will need to prove that forced divestment or otherwise banning of the app is both based on a compelling government interest and represents the least restrictive means of advancing that interest. In December, a federal district court enjoined a TikTok ban in Montana on First Amendment grounds without specifically articulating a constitutional standard of review. Restrictions on the use of the app on government‐​owned devices presents related but distinct legal questions and have not yet resulted in legal challenges.

tiktok, instagram

A few key questions about its constitutionality would remain, assuming this latest proposal was signed into law. As noted, the courts would have to determine if the government had a compelling national security interest at stake. And those concerns would have to be much more specific than the vague connections often alleged.

Even if the courts found the government’s interest to be compelling, they would then consider if there are less restrictive steps the government could take to resolve its national security concerns, such as the data localization steps proposed by TikTok’s Project Texas.

Since First Amendment challenges are subject to strict scrutiny, and given the risk that other measures with fewer consequences for speech could likely be deemed sufficient given current publicly available evidence, the government would need to build a much stronger case to show such extreme measures are necessary.

Implications of the Proposal for Users’ and Other Companies’ Speech

TikTok has proven to be an immensely popular app with a unique audience, with an estimated 1.5 billion monthly users worldwide; about 150 million Americans subscribe to TikTok. While other platforms may provide similar opportunities, TikTok’s users have found the app to be their preferred choice for expressing themselves.

The presence of other platforms for short‐​form video does not eliminate the concerns of the government foreclosing a platform for speech. It would be as if the government regulated the Wall Street Journal due to its ownership by foreigner Rupert Murdoch but not the Washington Post because it was owned by American Jeff Bezos.

The proposal also has significant impact not only on TikTok but on American companies. Much of the burden for executing such a ban will fall not on TikTok but on the US companies that allow its distribution through various platforms such as app stores and web browsers. As a result, the government is potentially dictating to these companies what information or products they can or cannot carry in their store. Such a position would be anathema to many in the offline world and it should be viewed for what it is in the online world as well.

Conclusion

While many may be quick to point out that the latest TikTok “ban” is not a complete ban the way prior proposals were, the underlying First Amendment concerns remain. There remains an ongoing process with the Committee on Foreign Investment in the United States (CFIUS) to determine what, if any, steps are needed to further protect American data or resolve any other potential concerns. Such a process was designed to make these determinations and would provide evidence of what actions, if any, are necessary related to concerns about foreign ties.

Individuals may come to different conclusions about their personal data security and TikTok, but government intervention must meet a high bar of proof before engaging in such a significant regulation of speech.

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