[We are troubled by growing demands for restrictions on TikTok.
Before taking such a drastic step, the government must come forward
with evidence of a real problem and a narrowly tailored solution. So
far, the government hasn’t done so.]
[[link removed]]

THE GOVERNMENT HASN’T JUSTIFIED A TIKTOK BAN  
[[link removed]]


 

Adam Schwartz and Davide Greene
March 16, 2023
Electronic Frontier Foundation
[[link removed]]


*
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*
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*
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_ We are troubled by growing demands for restrictions on TikTok.
Before taking such a drastic step, the government must come forward
with evidence of a real problem and a narrowly tailored solution. So
far, the government hasn’t done so. _

,

 

Freedom of speech and association include the right to choose one’s
communication technologies. Politicians shouldn’t be able to tell
you what to say, where to say it, or who to say it to.

So we are troubled by growing demands in the United States for
restrictions on TikTok, a technology that many people have chosen to
exchange information with others around the world. Before taking such
a drastic step, the government must come forward with specific
evidence showing, at the very least, a real problem and a narrowly
tailored solution. So far, the government hasn’t done so.

Nearly all social media platforms and other online businesses collect
a lot of personal data from their users. TikTok raises special
concerns, given the surveillance and censorship practices of its home
country, China. Still, the best solution to these problems is not to
single-out one business or country for a ban. Rather, we must enact
comprehensive consumer data privacy legislation. By reducing the
massive stores of personal data collected by all businesses, TikTok
included, we will reduce opportunities for all governments, China
included, to buy or steal this data.

MANY PEOPLE CHOOSE TIKTOK

TikTok is a social media platform that hosts short videos
[[link removed]]. It is owned by ByteDance
[[link removed]], a company headquartered in
China. It has 100 million
[[link removed]] monthly
users in the United States, and a billion
[[link removed]] worldwide.
According to Pew, 67%
[[link removed]] of
U.S. teenagers use Tiktok, and 10%
[[link removed]] of
U.S. adults regularly get news there. Many users choose TikTok over
its competitors because of its unique content recommendation system;
to such users, social media platforms are not fungible.

TikTok videos address topics “as diverse as human thought
[[link removed]].” Political
[[link removed]] satirists
[[link removed]] mock
politicians. Political
[[link removed]] candidates
[[link removed]] connect
with voters. Activists
[[link removed]] promote social
justice. Many users create and enjoy entertainment like dance videos
[[link removed]].

PROBLEMS WITH TIKTOK BANS

If the government banned TikTok, it would undermine the free speech
and association of millions of users. It would also intrude
on TikTok’s interest in disseminating its users’ videos—just as
bookstores have a right to sell books
[[link removed]] written by
others [[link removed]], and
newspapers have a right to publish someone else’s opinion
[[link removed]].

In a First Amendment challenge, courts would apply at least
“intermediate scrutiny” to a TikTok ban and, depending upon the
government’s intentions and the ban’s language, might apply
“strict scrutiny.” Either way, the government would have to prove
that its ban is “narrowly
[[link removed]] tailored
[[link removed]]” to national
security or other concerns. At the very least, the government “must
demonstrate that the recited harms are real, not merely conjectural
[[link removed]].” It also
must show a “close fit
[[link removed]]” between the
ban and the government’s goals, and that it did not “burden
substantially more speech than is necessary.” So far, the government
has not publicly presented any specific information showing it can
meet this high bar.

Any TikTok ban must also contend with a federal statute that protects
the free flow of information in and out of the United States:
the Berman Amendments
[[link removed]]. In
1977, Congress enacted the International Emergency Economic Powers Act
(IEEPA [[link removed]]), which
limited presidential power to restrict trade with foreign nations. In
1988 and 1994, Congress amended IEEPA to further limit presidential
power. Most importantly, the President cannot “regulate or prohibit,
directly or indirectly
[[link removed]],” either
“any…personal communication, which does not involve a transfer of
anything of value,” or the import or export of “any information or
informational materials.” Banning TikTok would be an indirect way of
prohibiting information from crossing borders. Rep. Berman explained:

The fact that we disapprove of the government of a particular country
ought not to inhibit our dialog with the people who suffer under those
governments…We are strongest and most influential
[[link removed]] when
we embody the freedoms to which others aspire.

A TikTok ban would cause further harms. It would undermine information
security if, for example, legacy TikTok users could not
receive updates to patch vulnerabilities
[[link removed]].
A ban would further entrench
[[link removed]] the
social media market share of a small number of massive companies
[[link removed]].
One of these companies, Meta, paid a consulting firm
[[link removed]] to
orchestrate a nationwide campaign seeking to turn the public against
TikTok. After India banned TikTok in 2020, following a border dispute
with China, many Indian users shifted
[[link removed]] to Instagram
Reels and YouTube Shorts. Finally, a ban would undermine our moral
authority to criticize censorship abroad.

THE 2020 TIKTOK BAN

In 2020, former President Trump issued Executive
[[link removed]] Orders
[[link removed]] banning
TikTok and WeChat [[link removed]], another
Chinese-based communications platform. EFF filed two amicus
[[link removed]] briefs
[[link removed]] in
support of challenges to these bans, and published three
[[link removed]] blog
[[link removed]] posts
[[link removed]] criticizing
them.

A federal magistrate judge granted a preliminary injunction
[[link removed]] against
the WeChat ban, based on the plaintiff’s likelihood of success on
their First Amendment claim. The court reasoned that the government
had presented “scant little evidence,” and that the ban
“burden[ed] substantially more speech than is necessary.”

In 2021, President Biden revoked
[[link removed]] these
bans.

THE DATA ACT

This year, Rep. McCaul (R-TX) filed the federal “DATA Act
[[link removed]]”
(H.R. 1153
[[link removed]]).
A House committee approved
[[link removed]] it
on a party-line vote.

The bill requires executive officials to ban U.S. persons from
engaging in “any transaction” with someone who “may transfer”
certain personal data to any foreign person that is “subject to the
influence of China,” or to that nation’s jurisdiction, direct or
indirect control, or ownership. The bill also requires a ban on
property transactions by any foreign person that operates a connected
software application that is “subject to the influence of China,”
and that “may be facilitating or contributing” to China’s
surveillance or censorship. The President would have to sanction
TikTok if it met either criterion.

It is doubtful this ban could survive First Amendment review, as the
government has disclosed no specific information that shows narrow
tailoring. Moreover, key terms are unconstitutionally vague, as the
ACLU explained in its opposition letter
[[link removed]].

The bill would weaken the Berman Amendments: that safeguard would no
longer apply to the import or export of personal data. But many
communication technologies, not just TikTok, move personal data across
national borders. And many nations, not just China, threaten user
privacy. While the current panic concerns one app based in one
country, this weakening of the Berman Amendments will have much
broader consequences.

THE RESTRICT ACT

Also this year, Sen. Warner (D-VA) and Sen. Thune (R-SD), along with
ten other Senators, filed the federal “RESTRICT Act
[[link removed]].”
The White House endorsed
[[link removed]] it.
It would authorize the executive branch to block “transactions”
and “holdings” of “foreign adversaries” that involve
“information and communication technology” and create “undue or
unacceptable risk” to national security and more.

Two differences between the bills bear emphasis. First, while the DATA
Act requires executive actions, the RESTRICT Act authorizes them
following a review process. Second, while the DATA Act applies only to
China, the RESTRICT Act applies to six “foreign adversaries”
(China, Cuba, Iran, North Korea, Russia, and Venezuela), and can be
expanded to other countries.

The RESTRICT Act sets the stage for a TikTok ban. But the government
has publicly disclosed no specific information that shows narrow
tailoring. Worse, three provisions of the bill make such transparency
less likely. First, the executive branch need not publicly explain a
ban if doing so is not “practicable” and “consistent with …
national security and law enforcement interests.” Second, any
lawsuit challenging a ban would be constrained in scope and the amount
of discovery. Third, while Congress can override the designation or
de-designation of a “foreign adversary,” it has no other role.

COERCING BYTEDANCE TO SELL TIKTOK

The Biden administration has demanded that ByteDance sell
[[link removed]] TikTok
[[link removed]] or
face a possible U.S. ban, according to the company. But the
fundamental question remains: can the government show that banning
TikTok is narrowly tailored? If not, the government cannot use the
threat of unlawful censorship as the cudgel to coerce a business to
sell its property.

The context here is review by the Committee on Foreign Investment in
the United States (CFIUS
[[link removed]])
of ByteDance’s ownership of TikTok. The CFIUS is a federal entity
that reviews, and in the name of national security can block
[[link removed]], certain
acquisitions of U.S. businesses by foreign entities. In 2017,
ByteDance bought
[[link removed]] TikTok
(then called Musical.ly), and in 2019, CFIUS began investigating
[[link removed]] the
purchase.

In response, TikTok has committed to a plan called “Project Texas
[[link removed]].”
The company would spend $1.5 billion on systems, overseen by CFIUS, to
block data flow from TikTok to ByteDance and Chinese officials.
Whether a TikTok ban is narrowly tailored would turn, in part, on
whether Project Texas could address the government’s concerns
without the extraordinary step of banning a communications platform.

EXCLUDING TIKTOK FROM GOVERNMENT-OWNED WI-FI

Some public universities and colleges have excluded TikTok from their
Wi-Fi systems
[[link removed]].

This is disappointing. Students use TikTok to gather information from,
and express themselves to, audiences around the world. Professors use
it as a teaching tool
[[link removed]],
for example, in classes on media and culture. College-based news
media
[[link removed]] write
stories about TikTok and use that platform to disseminate their
stories. Restrictions on each pose First Amendment problems.

These exclusions will often be ineffective, because TikTok users can
switch their devices from Wi-Fi to cellular. This further reduces the
ability of a ban to withstand First Amendment scrutiny. Moreover,
universities are teaching students the wrong lesson concerning how to
make fact-based decisions about how to disseminate knowledge.

EXCLUDING TIKTOK FROM GOVERNMENT-OWNED DEVICES

More than half of U.S. states have excluded TikTok from
government-owned devices
[[link removed]] provided
to government employees. Some state bills
[[link removed]] would
do the same.

Government officials may be at greater risk of espionage than members
of the general public, so there may be heightened concerns about the
installation of TikTok on government devices. Also, government has
greater prerogatives to manage its own assets and workplaces than
those in the private sector. Still, infosec policies targeting just
one technology or nation are probably not the best way to protect the
government’s employees and programs.

THE REAL SOLUTION: CONSUMER DATA PRIVACY LEGISLATION

There are legitimate data privacy concerns about all social media
platforms, including but not limited TikTok. They all harvest and
monetize our personal data and incentivize other online businesses to
do the same. The result is that detailed information about us is
widely available to purchasers, thieves, and government subpoenas.

That’s
[[link removed]] why
[[link removed]] EFF
[[link removed]] supports
[[link removed]] comprehensive
[[link removed]] consumer
[[link removed]] data
[[link removed]] privacy
[[link removed]] legislation
[[link removed]].

Consider location data brokers
[[link removed]], for example. Our
phone apps collect detailed records of our physical movements, without
our knowledge or genuine consent. The app developers sell it to data
brokers, who in turn sell it to anyone who will pay for it.
An anti-gay group
[[link removed]] bought
it to identify gay priests. An election denier
[[link removed]] bought
it to try to prove voting fraud. One broker sold data on who had
visited reproductive health facilities
[[link removed]].

If China wanted to buy this data, it could probably find a way to do
so. Banning TikTok from operating here probably would not stop China
from acquiring the location data of people here. The better approach
is to limit how _all_ businesses here collect personal data. This
would reduce the supply of data that any adversary might obtain.

_Adam Schwartz [[link removed]] is
Senior Staff Attorney and Assistant Director of EFF, which he joined
in 2015. He advocates before courts and legislatures against
surveillance, censorship, and discrimination. Previously, Adam worked
at the ACLU
[[link removed]] of
[[link removed]] Illinois
[[link removed]] for
[[link removed]] 19
[[link removed]] years
[[link removed]],
and clerked for Judge Betty B. Fletcher
[[link removed]] of
the U.S. Court of Appeals for the Ninth Circuit.  He earned a J.D.
from Howard University
[[link removed]] and
a B.A. from Cornell University, and attended Deep Springs College
[[link removed]]. [email protected]
[[link removed]] 415-436-9333
x176_

_David Greene, Senior Staff Attorney and Civil Liberties Director, has
significant experience litigating First Amendment issues in state and
federal trial and appellate courts. David currently serves on the
steering committee of the Free Expression Network, the governing
committee of the ABA Forum on Communications Law, and on advisory
boards for several arts and free speech organizations across the
country. David is also an adjunct professor at the University of San
Francisco School of Law. [email protected]
[[link removed]].  +1
415 436 9333 x143. @davidgreene [[link removed]]._

_The Electronic Frontier Foundation [[link removed]] is the
leading nonprofit organization defending civil liberties in the
digital world. Founded in 1990, EFF champions user privacy, free
expression, and innovation through impact litigation, policy analysis,
grassroots activism, and technology development. EFF's mission is
to ensure that technology supports freedom, justice, and innovation
for all people of the world._

* TikTok
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* First Amendment
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* Free Speech
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* Electronic Frontier Foundation
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* Electronic surveillance
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