TikTok and the First Amendment
There are increasing grounds for concern over TikTok’s massive social media presence and its links to Beijing, but banning it is not an easy option.
The U.S. government does not have the authority to ban speech. Postings on TikTok are protected by the First Amendment since they are a form of speech. This means they cannot be banned any more than a person who wishes to access Russian propaganda can be banned from reading Pravda or RT. The United States could use the International Economic Emergency Powers Act (IEEPA), which gives the president broad discretion over foreign entities, but IEEPA does not give him authority to suspend the constitution.
What could be done using IEEPA? The United States could ban app stores from offering TikTok for download or purchase. This could affect future downloads but would not affect the roughly 200 million downloads people have already made. When the previous administration considered this step, TikTok developed plans to host the app outside of U.S. jurisdiction, which would have allowed Americans to go to that website (just as they can go to a Russian or Iranian website if they choose), download the app, and continue to post videos. There is no noticeable difference to the user in connecting to a website in the United States or to one in another country.
The United States could ban TikTok from financial transactions with U.S. persons, but this may not have much immediate effect on TikTok since the company has not yet been able to fully monetize the app. This kind of financial ban would be largely symbolic in effect. But any effort to ban Americans from providing or accessing content on TikTok, even with the most contorted use of IEEPA, would not withstand a court challenge, and TikTok is almost certain to challenge anything approaching a ban in court.
The previous administration issued an Executive Order in an attempt to provide itself with the authority to constrain TikTok, but the executive order was so badly drafted that is was immediately rejected by a judge when TikTok sued. This administration replaced the Trump order with one that provides much more solid ground for action, but which still does not and cannot override the First Amendment protections afforded to speech on TikTok.
The administration is on firmer footing if it uses the Committee on Foreign Investment (CFIUS) and its ability to force companies to unravel deals that were previously approved—in this case, ByteDance’s acquisition of Musical.ly, a 2017 transaction that gives CFIUS jurisdiction over ByteDance. ByteDance would be unlikely to win a court challenge to a decision by CFIUS, as unhappy foreign plaintiffs never successfully challenge these U.S. government decisions in CFIUS—courts usually defer to the president on CFIUS-related national security issues. CFIUS gives the United States the most leverage over ByteDance.
Using CFIUS almost guarantees a regulatory tussle with China. The Chinese government loves ByteDance. It is the only app with a global audience that would react to any U.S. measures, probably by further retaliating against U.S. companies with a presence in China. A ban would increase the chances of Chinese regulatory retaliation.
The national security risk of using TikTok is easily exaggerated. Intelligence agencies routinely scrape social media to collect biographical information and do not need ownership of TikTok (or any other social media platform) to do this. The question is, how much more does China obtain by having access to TikTok data that is not publicly available? There is probably some benefit, but it is likely small.
Another risk comes from using TikTok as an influence engine. While China has made use of other U.S.-based social media platforms for influence operations, it has not made significant use of TikTok. This is not to say that China would refrain from doing so in the future, but so far it has preferred other platforms. Influence campaigns by China using false information are becoming routine, but TikTok’s short video format limits their effect. A short clip of Xi Jinping orating on China’s global leadership is unlikely to be appealing to Western audiences.
TikTok is used by U.S. far-right groups and the Chinese are unlikely to cooperate in constraining them, but this problem is larger than TikTok, A sophisticated Chinese influence campaign could use TikTok by adjusting the TikTok algorithm to shape what users can and cannot see on the platform and by promoting divisive messaging. The greatest risk comes not from what TikTok does, but from what it doesn’t do. If there is risk from China’s activities on social media, it is due more to the many Chinese operating under false names to inject harmful information and this is a better focus for action by policymakers.
The United States may ultimately decide to take action against TikTok given the worsening relations and China’s provocative behavior, but this action will not include a ban on accessing content. CFIUS could impose oversight conditions on ByteDance that would mitigate and manage risk (a normal CFIUS practice). This could include an oversight board of former U.S. government officials, insight, transparency for the oversight board to review the algorithm’s cueing function and to track data flows (both personally identifiable information, or PII, and content), since the general data TikTok collects where a posting originated provides some ability to identify misinformation. These steps could be accompanied by requirements to store PII with a U.S. cloud service provider. Making continued operation of TikTok in the United States contingent on ByteDance following these conditions and forcing ByteDance to divest if it fails to observe from these requirements may not pacify those who want to ban TikTok, but it is likely the best that can be done.
James A. Lewis is senior vice president and director of the Strategic Technologies Program at the Center for Strategic and International Studies in Washington, D.C.
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