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Breaking down TikTok's legal arguments over free speech and national security claims

TechBrunchBy TechBrunchApril 25, 20249 Mins Read
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Social media platform TikTok said a bill banning the app in the United States is “unconstitutional” and it will challenge the latest attempt to restrict its use in court.

The bill in question, signed by President Joe Biden on Wednesday, gives Chinese parent company ByteDance nine months to sell TikTok or face a ban on app stores distributing the app in the United States. The bill received strong bipartisan support in the House of Representatives and a majority in the Senate. This is part of a broader bill that includes military aid to Israel and Ukraine.

“Make no mistake about it. This is a ban. A ban on TikTok, and a ban on you and your voice,” said TikTok CEO Shou Chew. video Posted on apps and other social media platforms. “Politicians may say otherwise, but don't be confused. Many of those who proposed this bill acknowledge that banning TikTok is the ultimate goal…Freedom of expression on TikTok is This is truly ironic, since it reflects the same American values ​​that make TikTok a beacon of freedom. TikTok offers a powerful way to be seen and heard by everyday Americans. “This is why so many people have made TikTok a part of their daily lives,” he added.

This is not the first time the US government has attempted to ban TikTok, as several other countries have already done so.

TikTok is based in Los Angeles and Singapore and is owned by Chinese tech giant ByteDance. US officials warned that the app could be used to advance the interests of “persons of concern.”

In 2020, former President Donald Trump issued an executive order banning TikTok operations in the country, including a deadline to sell ByteDance's U.S. operations. President Trump also sought to ban new downloads of TikTok in the United States and prohibit transactions with ByteDance after a certain date.

While a legal challenge progresses, federal judges have cited concerns about First Amendment rights violations and a lack of sufficient evidence that TikTok posted a national security threat. It has issued a preliminary injunction temporarily blocking President Trump's ban.

After President Trump left office, the Biden administration took over the anti-TikTok baton. Today, the same core fundamentals are at stake. So why do Congress and the White House think the outcome will be different?

TikTok hasn't responded to TechCrunch's inquiry about whether it has filed a challenge in district court, but we know it will happen because both Chew and the company have said so.

If a company succeeds before a judge, what are the chances of success?

Allegation that TikTok ban is 'unconstitutional'

“The Trump administration’s attempt to force ByteDance to sell TikTok or face a ban in 2020 was challenged on First Amendment grounds, coupled with a legal ban last December. , sought to impose a statewide ban on TikTok as “likely” to violate the First Amendment, given the fact that it was rejected as an impermissible “indirect regulation of informational materials and private communications.” “I believe this latest law is similarly fundamentally flawed in response to a federal court order enforcing the Montana law,” Douglas E. Mirell, a partner at Greenberg Glusker, told TechCrunch. Ta. .

In other words, both TikTok as a company and its users have First Amendment rights, and a ban would threaten them.

In May 2023, Montana Governor Greg Gianforte signed a bill banning TikTok in the state, saying it would protect Montanans' private and private information from the Chinese Communist Party. TikTok later sued the state over the law, arguing that it violates the constitution and goes too far in legislating for national security issues. The lawsuit is still ongoing, and the ban has been blocked while the lawsuit progresses.

Five TikTok creators sued the state of Montana separately and won, claiming the ban violated their First Amendment rights. Therefore, the ruling blocked the Montana law from taking effect, effectively halting the ban. A U.S. federal judge has argued that the ban exceeds state power, is unconstitutional, and likely violates the First Amendment. This decision set a precedent for future litigation.

TikTok's challenge to this latest federal bill will likely point to that court ruling, as well as the injunction against President Trump's executive order, as precedent for why the ban should be reversed.

TikTok may also argue that the ban will impact small businesses that rely on the platform to make a living. Earlier this month, in anticipation of the ban and the need for arguments against it, TikTok released an economic impact report claiming the platform generated $14.7 billion for small businesses last year.

Threat to “national security”

Mirel said the court respects the government's claims about groups being a national security threat.

But the 1971 Pentagon Papers case, in which the Supreme Court upheld the Pentagon's right to publish classified investigations into the Vietnam War, sets a very high bar to overcome for free speech and press protections. .

“In this case, Congress' failure to identify a specific national security threat posed by TikTok establishes a substantial and far less persuasive government interest in a potential ban.” It just makes it even more difficult to do so,” Mirel said.

But there are also concerns that the firewall between TikTok in the US and its Chinese parent company is not as strong as it seems.

In June 2022, a BuzzFeed News report cited recordings of 80 internal TikTok meetings and found that U.S. data was repeatedly accessed by Chinese staff. In the past, the Beijing-based team has ordered TikTok's U.S. employees to restrict videos on the platform, and TikTok has made references to Tiananmen Square, Tibetan independence, and the banned religious group Falun Gong. There were also reports that he had instructed moderators to censor the video.

In 2020, there were reports that TikTok moderators were told to censor political speech and suppress posts from “undesirable users” (unattractive people, poor people, disabled people). , which shows that the company is not afraid to manipulate algorithms for its own purposes.

TikTok has largely shrugged off such accusations, but following a BuzzFeed report, the company announced it would move all U.S. traffic to Oracle's infrastructure cloud services to keep U.S. user data private. did. The agreement is part of a larger effort called “Project Texas” that focuses on separating TikTok's U.S. operations from China and hiring an outside company to oversee its algorithms. In a statement responding to Biden signing the TikTok ban, the company said that as a result of Project Texas and other efforts, billions of dollars have been invested to protect user data and protect the platform from outside manipulation. It was pointed out that

Yaqi Wang, director of China research at political advocacy group Freedom House, believes data privacy issues are real.

“There's a structural problem that a lot of people who don't work on China issues don't understand. It's that just because it's a Chinese company, if it's a Chinese company, whether it's public or private, “The Chinese government has a history of using private companies for political purposes,” Wang told TechCrunch. “The political system dictates that. [the data privacy issue] That's one concern. ”

“The other thing is the possibility that the Chinese government could push propaganda, suppress content it doesn't like, and basically manipulate the content that Americans see,” she continued.

Wang said there is currently not enough systematic information to prove that the Chinese government has committed such acts regarding U.S. politics, but the threat still exists.

“Chinese companies are beholden to the Chinese government, which absolutely has the intention of undermining freedom around the world,” Wang said. He noted that although China does not currently appear to have any specific objectives to suppress content or promote propaganda in the United States, tensions between the two countries continue to rise. If a conflict erupts in the future, China could “fully leverage TikTok in ways that it does not currently do.”

Of course, American companies are also at the center of efforts by foreign groups to undermine democratic processes. One need only mention the Cambridge Analytica scandal and Russia's use of Facebook political ads to influence the 2016 presidential election as high-profile examples.

That's why Wang says more important than a ban on TikTok is comprehensive data privacy laws that protect user data from being misused or compromised by all companies.

“So if China wants Facebook data today, they can buy it in the marketplace,” Wang said.

The possibility of TikTok being challenged in court is unclear

The government has a difficult case to prove and it is not a sure-fire decision either way. If the precedent set by past court decisions applies to future TikTok cases, the company has nothing to worry about. As it turns out, the TikTok ban was apparently added as a necessary sweetener to pass a larger bill authorizing aid to Israel and Ukraine, as Mirel speculated. But it's also possible that the current administration simply doesn't agree with past court decisions restricting TikTok and wants to challenge them.

“If this case goes to court, the government (i.e., the Department of Justice) will ultimately find that TikTok poses an imminent threat to national security and that it must do so to protect national security interests.” “They would have to prove that there is no other viable alternative to the divestment/ban that this bill calls for,” Mirel told TechCrunch in a follow-up email.

“TikTok, for its part, argues that its (and presumably its users') First Amendment rights are at stake and refutes all claims that the platform poses a national security risk. , will argue that efforts already undertaken by both governments are effective'' (e.g., through a ban on TikTok on all federal devices) and by TikTok itself (e.g., through its “Project Texas'' “Through this initiative, we have effectively mitigated significant national security threats,'' he explained.

In December 2022, Biden signed a bill banning the use of TikTok on federal government devices. Congress is also considering a bill called the Restrictions Act that would give the federal government more power to address risks posed by foreign-owned technology platforms.

“If Congress didn't think so, [Project Texas] If that is enough, we can draft and consider legislation to strengthen that protection,” Mirel said. “There are many ways to address data security and potential influence issues that go far beyond divestment and banning.”





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