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Blog Post: The Tiktok Bill

Preface:

I wanted to write down some of my thoughts on H. R. 7521 in one place.

A few caveats: I’m not a speech lawyer. I research China’s Domestic Laws, primarily criminal law and procedure, including its many laws that restrict speech in ways I dislike intensely. I am not going to write a legal brief below, and am only informally listing some of the issues and my thoughts in a single place, rather than in tiny pieces on Twitter. I’m aiming for concise, not comprehensive.

I do not like Tiktok. I don’t like it because I am old and find it confusing, and changing ownership won’t change that. I really don’t like increasing government power to limit access to speech.

  1. Does the Law target Tiktok?

The bill does not exclusively target Tiktok, but certain large-scale apps that are “controlled by a foreign adversary”. This control is determined on the basis of the location of the headquarters (primary place of business etc.), ownership (20% or more foreign ownership), and whether it is controlled or directed by entities and persons from a foreign adversary.

At the same time, the definition of “Foreign Adversary Controlled Application” specifically mentions software that is operated by TikTok or it’s parent company ByteDance.

  1. Why the concern about Tiktok?

A number of rationales have been put forward for why TikTok is a danger- some are unique to Tiktok, some are shared with other social media. These include:

  • Data Security Concerns– The risk that by running a large-scale app in the US, Tiktok, and thus its parent company Byte-dance, and thus the PRC government, will gain access to large volumes of user data.
  • Propaganda Concerns – the risk that the app will use its algorithm or direct censorship to impact what information US users view; shaping users’ perception of world events to align with China’s.
  • Content harmful to minors concern– use of the app may expose minors to content that is inappropriate or harmful to them. This includes content fostering addiction to the app, encouraging imitation of dangerous conduct,
  • Reciprocity – China notoriously blocks US owned apps from use in China, it’s only fair we block them back.

I’ll get into them each in more detail below.

  1. What’s different from the blocked Montana Law banning Tiktok?

The most important difference is probably that this law isn’t from Montana- or rather that it IS from Congress. One of the key issues in considering that law was whether an individual state exceeded its authority, or encroached on federal powers by making the law. Congress has distinct powers in terms of national security and international commerce legislation.

Many people argue that the current law is different in that it calls for a forced sale and that the ban is only a consequence of failing to make that sale. The Montana law also provided that its ban was “void if tiktok is acquired by or sold to a company that is not incorporated in any other country designated as a foreign adversary in 15 C.F.R. 7.4 at the time tiktok is sold or acquired.” I have a hard time distinguishing between a ban avoided by a sale and a forced sale enforced by a ban.

  1. Is the legislation a ban?

The law aims to prohibit the distribution and hosting of Tiktok unless its parent company sells it, making it no longer connected to a “foreign adversary”.

Whether that constitutes a “ban” really involves two distinct questions:

  • Practical ban: Will it result in users being unable to access the service?
  • Speech Law questions: Is this an unconstitutional restriction on speech by the government?

As a practical issue, the choice of forced sale or ban will almost certainly end in a ban. The TikTok algorithm is proprietary and it is unlikely Bytedance will be willing to even license it to others. Other practical challenges to selling include finding a financially and technologically viable buyer, Chinese export law, etc. Graham Webster has made a nice overview.

Speech issues will be discussed briefly in the next few sections.

  1. What speech interests are involved?

Speech rights not only prevent the government from interfering with individual’s speech, but also prevent the government from restricting access to speech.

There are multiple types of speech issue implicated here:

  • Tiktok’s rights in its curation of the speech.
  • Users right to speak and receive speech on the platform of their choice.
  • App stores’ and hosts’ right to publish the app and its content.

The main function of Tiktok is in the selection and sequencing of content that is generated by users. It’s algorithm tailors content based on the individual users’ preferences and analysis of their activity on the app. Under US first Amendment law, such curation is itself a type of protected speech. As the Court granting an injunction against Montana’s ban on Tiktok said:

[The Law] implicates TikTok’s speech because the application’s decisions related to how it selects, curates, and arranges content are also protected by the First Amendment. SB 419 prevents the company from “the presentation of an edited compilation of speech generated by other persons . . . which, of course, fall squarely within the core of First Amendment security.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 570 (1995); see also Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (holding that a newspaper’s moderation of third-party content is generally protected by the First Amendment). These speech concerns place SB 419 and the activity it bans squarely within the First Amendment’s protections.

A sale of the app, necessarily changes the nature and content of the app, eliminating in part its protected speech content.

In addition to Tiktok’s right to perform this curation, the app’s users have the right to access that speech, and the speech of others on that platform.

  1. Are the speech interests improperly restricted?

A big question. Speech rights aren’t absolute and, at the risk of grossly oversimplifying, the government can limit speech when they have important grounds for doing so, like national security concerns. Reviewing restrictions on speech involves considering the nature of the speech and the competing interest, as well as the extent of the restriction.

This is why the first reason I gave about concern over Tiktok, Data Security, is the most compelling. It raises a concern from use of the app that is not focused on the speech, but on the harvesting of personal data, which could present a national security risk as well as a threat to individual users. In short, it’s a legitimate concern.

There are a few reasons, however, to question whether the concern should justify the limitation on speech (curation, access to speech):

  • The same data is collected by multiple sources and can be purchased in data exchanges. Specifically, China has other means to access the information, including buy buying it from data brokers. Stopping some data harvesting is better than nothing, and starting with foreign adversaries seems like a good idea. But the gaping holes in even as to China’s access to the data might been as showing that this isn’t the governments real concern, raising questions about the legitimacy of the speech restrictions.
  • The personal data is collected with the users (nominal) consent. In the US we haven’t made comprehensive rules about apps’ collection and use of user data, and even more protective systems generally only require that more explicit consent be obtained for the collection of data. I’m all for tightening rules on the collection, use, and retention of user data across the board, but we are generally not in the practice of telling users that they can’t choose to share their data.

The harm to minors concern raises similar issues. There is emerging recognition that social media has adverse impacts on kids. The question is whether this is a legitimate reason to restrict access to apps based on their country of origin or ownership. The failure to address the harm in all apps, or to explain why foreign adversary control makes it more harmful to children, suggests this might not be the real reason for the ban. Moreover, the ban is not solely for minor users, but impacts adults as well, further calling the motive into question. [I should add that efforts to restrict social media all social media access for minors also have problems, because it requires verifying users’ ages—often sacrificing anonymity]

The propaganda concerns may be the weakest justification, as they involve restricting access to speech on the basis of its content. Generally speaking, First Amendment Law has developed with the idea that people should get to evaluate information for themselves, rather than have the government digest it for them. This includes allowing access to even unabashed foreign propaganda.

I leave reciprocity for last, because I don’t think it’s meant as a legal argument, but also believe it is at the heart of efforts to stop Tiktok. The reciprocity argument appeals to an intuitive sense of fairness, “let’s treat them the way they treat us.” But we aren’t China, and we should abhor efforts to block access to speech by any government. Banning because China bans seems to only legitimize their banning as acceptable conduct.

Conclusion: So we should just do nothing?

No. The question is what should we do something about? Different problems require different solutions, and I haven’t seen a problem raised yet that requires an outright ban (or forced sale) of a specific app.

In most areas I would suggest drafting and vigorously enforcing generally applicable laws that address problems from whatever app spawns them, and enforce the heck out of them.

+ If the concern is data security, perhaps require ‘foreign adversary controlled apps’ to notify users of their ownership when requesting user consent to gather and use personal data to make sure the consent is informed. Perhaps require notice of how the data may be sold and shared for all apps, so we can avoid it falling into the wrong hands.

If there is uniquely harmful data being gathered beyond user data – maybe propose a law stopping that type of collect..

+ If the concern is Chinese influence, one place to start could be tightening rules for campaign donations by US subsidiaries of foreign corporations that were opened wide following Citizens United.

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