Citing privacy and national security concerns, legislators are calling for dramatic action: a sweeping nationwide ban of the Chinese-based social media platform TikTok. Proponents of the ban argue that it is necessary to prevent propaganda campaigns and surveillance by the Chinese Communist Party (CCP). Some argue that TikTok’s young, impressionable user base is particularly susceptible to disinformation efforts. Given the Chinese government’s historic grip on its technology industry, many remain skeptical of TikTok’s insistence that American data is not vulnerable to Chinese government intrusion. As a result of these concerns, the United States, Canada, and European Union have already issued orders banning the use of TikTok on government-issued mobile devices.
In response to these legislative proposals, a number of free speech organizations have raised concerns that an outright ban of the short-video app would unconstitutionally infringe Americans’ First Amendment rights and “sorely undermine U.S. credibility as a defender of digital freedom.” Some lawmakers – including those who otherwise rarely find agreement, like Senator Rand Paul and Representative Alexandria Ocasio-Cortez – have also expressed concerns about the proposed ban.
A federal court’s response to President Donald Trump’s August 2020 attempt to ban WeChat, a Chinese messaging app, suggests that an outright ban of TikTok would implicate the First Amendment. In that case, the court granted the plaintiffs’ preliminary injunction, finding that the plaintiffs were likely to succeed on their First Amendment claim. Scholars have also suggested that a ban of TikTok will likely fail a constitutional challenge.
As a subsidiary of the Chinese corporation ByteDance, TikTok does not have a constitutional right to free speech. But Tiktok’s nearly 150 million American users do. Americans exercise their First Amendment rights when they post on the social media platform and consume content that is generated by others. Although alternative social media applications remain available, a categorical ban of the popular platform would be unprecedented.
The Supreme Court has previously confronted the intersection of First Amendment rights and social media. In Packingham v. North Carolina, the Court considered a law that made it a felony for a registered sex offender to access commercial social networking websites that permit minors to become members or create personal web pages.[1] The Court emphasized the importance of cyberspace as a forum for expression, noting that social media offers a “relatively unlimited, low-cost capacity for communication.”[2] Even assuming it was content neutral and thus subject to intermediate scrutiny, the Court invalidated the law because it was not narrowly tailored. It noted that the law barred “access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”[3]
Some insist that analogies to Packingham are inapt. They argue that a ban would restrict TikTok as a platform, rather than individual users, therefore making it more comparable to instances in which the government has banned communications companies from operating or selling equipment in the United States. The U.S. Court of Appeals for the D.C. Circuit, for instance, upheld the FCC’s decision to revoke China Telecom’s operating license due to national security concerns. A TikTok ban, however, will arguably result in a much more severe burden on American expression.
If a law banning TikTok were subject to strict scrutiny, its chances of survival would be slim. Strict scrutiny demands that a law be narrowly tailored to serve a compelling state interest. Even if the Court is convinced by the government’s evidence that the national security and privacy issues presented by TikTok are compelling, it will be difficult to persuade the Court that a sweeping ban of a widely-used platform is an appropriately narrow solution. Although narrow tailoring does not require perfection,[4] it is unlikely to be satisfied if less restrictive means are available. Under the less-demanding intermediate scrutiny, the government must prove that the ban serves a significant governmental interest and does not substantially burden more speech than necessary to further that interest.[5] Even under this standard, a TikTok ban might still be held unconstitutional because it burdens an enormous amount of speech.
Some have also questioned the efficacy of the TikTok ban. Even without accessing TikTok’s user data, the Chinese government can still purchase troves of American personal data from data brokers. Many data privacy advocates stress that the government should instead protect Americans’ personal data through comprehensive privacy regulation, which would sidestep a categorical ban’s heavy burden on speech. This regulation would also resolve broader privacy concerns stemming from the vast collection of personal data online.
Additionally, TikTok’s proposal to store American user data on Oracle servers in the United States, with supervision of its content recommendation algorithm, might be a reasonable alternative that avoids excessive restriction of Americans’ speech. However, some lawmakers remain unconvinced that this will be sufficient to protect Americans’ data from CCP access. The Biden Administration reportedly favors the forced divestment of TikTok from its Chinese-based parent company ByteDance. While this solution might effective, it is unlikely to be simple. Commentators suggest that this process “likely would be tied up in the courts for years,” and the Chinese government has also stated that it will “resolutely oppose” a forced sale. Although each solution poses difficulties, these alternatives should be thoroughly explored before resorting to a wholesale ban of such a significant platform for American expression.
[1] Packingham v. North Carolina, 137 S. Ct. 1730, 1733 (2017).
[2] Id. at 1732.
[3] Id. at 1737.
[4] Williams-Yulee v. Fla. Bar, 575 U.S. 433, 435 (2015).
[5] Packingham at 1736.