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Social media app TikTok’s rapid rise in popularity has raised questions regarding the relationship of ByteDance, TikTok’s parent company, to the Chinese government.
Now, leaders on both sides of the aisle, including President Joe Biden, have called to ban or severely restrict Americans’ access to the popular app.
Banning an app, however, could raise significant questions about the First Amendment rights of TikTok’s American users and affect far more than the ability to take part in the latest dance craze.
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TikTok is not the first company with ties to China to face scrutiny. For example, the United States has banned Chinese companies such as Huawei over national security concerns. Washington has denied necessary equipment approvals to some businesses, placing them on a “covered list” of companies viewed as a threat to the security of America’s telecommunications infrastructure.
Trump tried to ban TikTok and failed
This is also not the first time TikTok has faced threats of a national ban, as the Trump administration previously tried to undertake such actions via executive order.
Banning TikTok raises a set of concerns separate from those associated with banning certain equipment from telecommunications infrastructure. Unlike the bans on equipment, the banning of an app removes an opportunity for communication and expression for millions of Americans users.
TikTok bans dramatically expand the government’s ability to control what apps and technologies Americans can choose to use to communicate. Further, bans create consequences not just for the companies themselves, but also for users who violate the bans.
The ACLU, for example, has expressed concerns about the free speech and additional civil liberties implications of government bans by pointing out how it could set a dangerous precedent for the government interfering with what apps Americans may use to express themselves and communicate with others.
Some argue that national security concerns outweigh implications on speech, especially when users have a wide range of other social media platforms from which to choose. Even so, policymakers must walk a delicate line, as there could be further consequences of a TikTok ban.
For example, a ban is unlikely to affect only TikTok. It could also apply to any number of apps or technology services, making it more difficult on U.S. platforms and businesses abroad.
Increased scrutiny and the potential of a ban also could raise a tit for tat that leads other countries to ban U.S.-based apps and businesses, out of fear the U.S. government may have access to data they collect. It also might deter foreign companies from expanding in America, if they also do business in China, out of concerns they may get either caught in a tug of war or find themselves banned.
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There is an ongoing review of whether TikTok U.S., through its Project Texas, has established the necessary safeguards to assuage concerns about the Chinese government ‘s ability to access U.S. users’ data.
The Trump administration’s attempt to ban TikTok was struck down by courts when the a U.S. district judge found insufficient evidence of national security risks, thus deeming the ban “arbitrary and capricious.”
One academic study found that TikTok does not censor U.S. content and does not have data collection practices that are more of a threat than other popular social media platforms. Before considering a radical step like a ban, policymakers must make sure any allegations of national security threats are firmly supported by evidence and not just vibes.
Less severe restrictions deserve consideration
Given the serious consequences of a potential TikTok ban and, particularly, the impact on users’ speech, policymakers should consider less restrictive options that can address potential national security concerns. Some of these steps have already been undertaken at the federal and state level, such as banning the app from government devices.
Additionally, the ongoing review could provide further recommendations that would reduce concerns about the potential harm to users’ free speech rights, including potential divestment from the China-linked ByteDance.
Banning an app affects millions of citizens’ ability to communicate in the way they choose. With that in mind, the First Amendment implications of a TikTok ban deserve at least as careful consideration as the potential national security implications.
Jennifer Huddleston, a research fellow at the Cato Institute focusing on technology policy, is an adjunct professor at George Mason University’s Antonin Scalia Law School.
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