Freedom of speech and association includes the right to choose communication technology. Politicians should not be able to dictate what to say, where to say it, and to whom to say it.
That's why we're troubled by growing calls in the United States for restrictions on TikTok, the technology many people choose to exchange information with people around the world. Before taking such drastic steps, governments must at least provide concrete evidence of a real problem and a tightly tailored solution. So far, the government has not done so.
Almost all social media platforms and other online businesses collect large amounts of personal data from their users. TikTok raises particular concerns given its home country of China's surveillance and censorship practices. Still, the best solution to these problems is not to single out specific companies or countries for bans. Rather, we need to enact comprehensive consumer data privacy laws. By reducing the mass storage of personal data that all companies, including TikTok, collect, we reduce the opportunity for all governments, including China's, to buy or steal this data.
Many people choose TikTok
TikTok is a social media platform that hosts short videos. It is owned by ByteDance, a company headquartered in China. It has 100 million monthly users in the US and 1 billion worldwide. According to Pew, 67% of US teenagers are on Tiktok, and 10% of US adults regularly get news on Tiktok. The reason many users choose his TikTok over its competitors is because of its unique content recommendation system. For such users, social media platforms are irreplaceable.
TikTok videos cover topics “as diverse as human thought.” Political satirists mock politicians. Political candidates connect with voters. Activists promote social justice. Many users enjoy creating entertainment such as dance videos.
Issues with TikTok bans
If the government bans TikTok, it will undermine the freedom of speech and association of millions of users.will also invade TikTok is interested in promoting its users' videos. Just as the bookstore has the right to do so. sell books It was written by someone else and the newspaper has the right to read it. express the opinion of others.
In a First Amendment challenge, the court would apply at least “intermediate scrutiny” to the TikTok ban, and potentially “strict scrutiny” depending on the government's intent and the wording of the ban. . In any case, the government will need to prove that the ban is.narrowly tailored” for national security or other concerns. At a minimum, the government “must prove that the enumerated hazards are:” Reality, not just speculation” You also need to display “ ”.perfect fitHe said there was a disconnect between the ban and the government's goals and that it did not “place a substantial burden on speech any further than necessary.” So far, the government has not released any concrete information showing it can meet this high bar.
A ban on TikTok would also have to violate federal laws that protect the free flow of information within and outside the United States. Berman Amendment. In 1977, Congress enacted the International Emergency Economic Powers Act (IEEPA), which limited the president's authority to restrict foreign trade. In 1988 and 1994, Congress amended his IEEPA to further limit presidential power. Most importantly, the President may not “directly or indirectly restrict or prohibit” the import or export of “any…personal communication that does not involve the transfer of anything of value” or “any information or informational material.” It means you can't. Banning TikTok would be an indirect way to prevent information from crossing borders. Congressman Berman explained:
The fact that we do not support a particular country's government should not preclude dialogue with those who suffer under that government…We are at our best when we embody the freedoms that others desire. It is the strongest and most influential.
Banning TikTok will cause further harm. For example, if traditional TikTok users do not receive updates to fix vulnerabilities, information security will be compromised. A ban would further entrench social media market share for a small number of large companies. One of these companies, Meta, paid a consulting firm to organize a nationwide campaign to turn the public against TikTok. After India banned TikTok in 2020 following a border dispute with China, many Indian users turned to Instagram Reels and YouTube Shorts. Finally, a ban would undermine the moral authority to criticize foreign censorship.
TikTok ban in 2020
In 2020, former President Trump issued an executive order banning TikTok and WeChat, another China-based communication platform. EFF has filed two court briefs supporting challenges to these bans and published three blog posts criticizing them.
A federal magistrate judge granted a preliminary injunction against the WeChat ban on the basis that the plaintiffs' First Amendment claims were likely to succeed. The court reasoned that the ban was “onerous” because the evidence presented by the government was “scarce.”[ed] The amount of speech increases significantly more than necessary. ”
In 2021, President Biden rescinded these bans.
data method
This year, Congressman McCaul (R-Texas) introduced the federal Data Act (HR 1153). A House committee approved it on a party-line vote.
The bill would allow U.S. persons to refer to foreign nationals who are “subject to China's influence” or to whom certain personal data “may be transferred,” directly or indirectly, to the jurisdiction of that country. Requires administrative authorities to prohibit “all transactions” in control, or ownership. The bill also seeks to ban property transactions by foreign nationals operating connected software applications that are “China-influenced” and “may facilitate or contribute to” Chinese surveillance or censorship. . If TikTok meets either of the criteria, the president would be required to sanction it.
Because the government has not disclosed specific information indicating narrow tailoring, it is questionable whether the ban would withstand First Amendment scrutiny. Moreover, as the ACLU explained in its opposition letter, key terms are unconstitutionally vague.
This bill would weaken the Berman Amendment, and its safeguards would no longer apply to the export and import of personal data. However, many communication technologies, not just TikTok, move personal data across borders. And many countries, not just China, threaten user privacy. While the current panic concerns his one app based in one country, this weakening of the Berman Amendment will have a broader impact.
Limitation law
Also this year, Sen. Warner (D-Va.) and Sen. Thune (R-South Dakota), along with 10 other senators, introduced a federal “restriction bill.” The White House supported it. It would give the executive branch the power to block “transactions” and “possessions” of “foreign adversaries” that involve “information and communications technology” and that create “unreasonable or unacceptable risks” to national security and other risks. Become.
Two differences between the two bills are highlighted. First, the DATA Act requires administrative action, whereas the RESTRICT Act allows for administrative action after a review process. Second, while the DATA Act only applies to China, the RESTRICT Act applies to six “foreign enemies” (China, Cuba, Iran, North Korea, Russia, and Venezuela) and could be extended to other countries. There is sex.
The restriction law is a stepping stone to banning TikTok. However, the government has not released specific information indicating narrow tailoring. Worse, his three provisions in the bill make such transparency less likely. First, the executive branch does not have to publicly explain a ban if it is not “practical” or “consistent with national security and law enforcement interests.” Second, a lawsuit challenging the ban would be limited in scope and amount of discovery. Third, Congress can override the designation or dedesignation of a “foreign enemy,” but has no other role.
Forcing ByteDance to sell TikTok
The Biden administration is demanding that ByteDance sell TikTok or risk a U.S. ban, the company said. But fundamental questions remain. Can the government show that its ban on TikTok was narrowly tailored? If not, the government cannot use the threat of illegal censorship as a bludgeon to force companies to sell assets. .
The context here is the Committee on Foreign Investment in the United States (CFIUS) review of ByteDance's ownership of TikTok. CFIUS is a federal agency that can review and block certain acquisitions of U.S. companies by foreign companies in the name of national security. ByteDance acquired TikTok (then called Musical.ly) in 2017, and CFIUS began investigating the acquisition in 2019.
In response, TikTok is working on a plan called “Project Texas.” The company plans to spend $1.5 billion on a system overseen by CFIUS to stop the flow of data from TikTok to ByteDance and Chinese authorities. Whether TikTok's ban is narrowly tailored will depend, in part, on whether Project Texas can address the government's concerns without taking the unusual step of banning a communications platform. .
Exclude TikTok from government-owned Wi-Fi
Some public universities and colleges have excluded TikTok from their Wi-Fi systems.
This is unfortunate. Students use her TikTok to collect information from viewers around the world and express themselves to their viewers. Professors use it as a teaching tool, including in classes on media and culture. University-based news outlets write articles about TikTok and use the platform to spread their stories. Each restriction raises First Amendment issues.
These exclusions are often ineffective because TikTok users can switch their devices from Wi-Fi to cellular. This further reduces the ban's ability to withstand First Amendment scrutiny. Additionally, universities are teaching students the wrong lessons about how to make fact-based decisions about how to disseminate knowledge.
Exclude TikTok from government-owned devices
More than half of U.S. states have removed TikTok from government-owned devices provided to government employees. Some state bills would take similar steps.
Government officials may be at greater risk of espionage than the general public, which may raise concerns about installing TikTok on government devices. Governments also have greater privileges than the private sector in controlling their own assets and workplaces. Still, information security policies that target only one technology or nation are probably not the best way to protect government employees and programs.
A real solution: Consumer Data Privacy Act
All social media platforms, including but not limited to TikTok, have legitimate concerns about data privacy. All of these collect and monetize our personal data and encourage other online businesses to do the same. As a result, detailed information about our company is widely available to buyers, thieves, and government subpoenas.
That's why EFF supports comprehensive consumer data privacy legislation.
For example, consider location data brokers. Our phone apps collect detailed records of our body movements without our knowledge or real consent. App developers sell it to data brokers, who then sell it to people who pay for it. It was purchased by anti-gay groups to identify gay clergy. Purchased by election deniers to prove voter fraud. One broker sold data on people who visited reproductive health facilities.
If China wanted to buy this data, it could probably find a way to do so. Banning TikTok from operating here probably won't stop China from capturing people's location data here.A better approach is to limit the method all Companies here collect personal data. This reduces the supply of data an attacker can obtain.
