Breaking down TikTok’s legal arguments around free speech, national security claims | TechCrunch

Social media platform TikTok says the bill banning the app in the US is “unconstitutional” and it will fight this latest attempt to restrict its use in court.

Bill under consideration, which President Joe Biden signed on WednesdayChinese parent company ByteDance has been given nine months to sell TikTok or face a ban from the App Store if it distributes the app in the US. The legislation received strong bipartisan support in the House and a majority senate vote Tuesday, and it’s part of broader legislation including military aid for Israel and Ukraine.

“Make no mistake. This is a ban. A ban on TikTok and a ban on you and your voice,” said Shaw Chew, TikTok CEO. Video Posted on the app and other social media platforms. “Politicians may say otherwise, but don’t be confused. Many sponsoring the bill admit that banning TikTok is their ultimate goal… This is actually ironic because freedom of speech on TikTok reflects the same American values ​​that make the United States a symbol of freedom. TikTok gives everyday Americans a powerful way to be seen and heard, and that’s why so many people have made TikTok a part of their daily lives,” he said.

This is not the first time the US government has attempted to ban TikTok, it has happened many times. Other Countries Has already been implemented.

TikTok is based in Los Angeles and Singapore, but is owned by Chinese technology giant ByteDance. US officials have warned that the app could be leveraged to further the interests of an “entity of concern”.

In 2020, former President Donald Trump issued an executive order banning TikTok’s operations in the country, including a deadline for ByteDance to sell its US operations. Trump also tried to ban new downloads of TikTok in the US and bar transactions with ByteDance after a specific date.

Federal judges issue preliminary injunction temporarily block Trump’s ban, while legal challenges proceeded, cited concerns about violating First Amendment rights and a lack of sufficient evidence that TikTok posed a national security threat.

After Trump leaves office, Biden’s administration Anti-TikTok stick raised, Today, the same fundamentals are at stake. So why do Congress and the White House think the results will be different?

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

When the company presents it to a judge, what are its chances of success?

TikTok’s ‘unconstitutional’ argument against the ban

“In light of the fact that the Trump Administration’s effort in 2020 to force ByteDance to sell TikTok or face a ban was challenged on First Amendment grounds and combined last December with an unacceptable ‘information content and It was dismissed as ‘indirect regulation of personal communications’. Following the federal court order to enforce Montana’s law seeking a statewide TikTok ban as a ‘potential’ First Amendment violation, I believe this latest law violates the same fundamental Suffers from weakness,” Douglas E. Mirrell, partner at Greenberg Glusker, told TechCrunch.

In other words, both TikTok and its users, as a corporation, have First Amendment rights that are at risk of being banned.

In May 2023, Montana Governor Greg Gianforte signed into law A bill that would ban TikTok in the state, saying it would protect Montanans’ personal and private data from the Chinese Communist Party. TikTok then sued the state over the law, arguing that it violated the Constitution and that the state was overreaching by legislating on matters of national security. The case is still ongoing, and the ban has been put on hold until the trial proceeds.

five tiktok creators Montana sued separately, arguing that the ban violated their First Amendment rights and won. The ruling thus prevented the Montana law from taking effect and essentially halted the ban. A US federal judge claimed that the ban was an overreach of state power and also unconstitutional, potentially violating the First Amendment. That decision set a precedent for future cases.

TikTok’s challenge to this latest federal bill will likely point to the court’s decision, as well as Trump’s executive orders injunctions, as precedent for why this ban should be overturned.

TikTok may also argue that the ban will affect small and medium-sized businesses that use the platform to earn a livelihood. Earlier this month, TikTok released a economic impact report It has been claimed that due to the anticipation of the ban and the need to argue against it, the platform generated $14.7 billion for small to medium-sized businesses last year.

Threat to ‘national security’

Mirel says courts tend to respect government claims that institutions pose a threat to national security.

However, the 1971 Pentagon Papers case, in which the Supreme Court upheld the Defense Department’s right to publish a classified study of the Vietnam War, sets an exceptionally high bar for free speech and press protections to overcome.

Mirel said, “In this case, Congress’s failure to identify a specific national security threat posed by TikTok only increases the difficulty of establishing a sufficient, much less compelling, government interest in any potential ban.”

However, there is some cause for concern that the firewall between TikTok in the US and its parent company in China is not as strong as it seems.

In June 2022, a report from buzzfeed news Citing recordings of 80 TikTok internal meetings, it found that US data was repeatedly accessed by employees in China. been there too reports In the past, Beijing-based teams have ordered TikTok’s US employees to restrict videos on its platform or TikTok has asked its moderators to censor videos that include references to Tiananmen Square, Tibetan independence or the banned religious group, Falun Gong. Things like that were mentioned.

were also in 2020 reports TikTok moderators were told to censor political speech and suppress posts from “undesirable users” – the unattractive, the poor and the disabled – showing that the company is not afraid to manipulate the algorithm for its own purposes.

TikTok has largely denied such allegations, but following BuzzFeed’s reporting, the company said it would deny all allegations. US traffic on Oracle’s Infrastructure Cloud service To keep US user data private. That agreement is part of a larger operation called “Project Texas,” which focuses on separating TikTok’s U.S. operations from China and employing an outside firm to oversee its algorithms. In its statements in response to Biden signing the TikTok ban, the company has pointed to the billions of dollars it has invested as a result of Project Texas and other efforts to secure user data and keep the platform free from outside manipulation.

Yaqi Wang, China research director at the political advocacy group Freedom House, believes the data privacy issue is real.

“There is a structural issue that a lot of people who don’t work on China don’t understand, which is that being a Chinese company — any Chinese company, whether you’re public or private — you have to answer to the Chinese government,” Wang. told TechCrunch, citing the Chinese government’s record of taking advantage of private companies for political purposes. “The political system decides this. so [the data privacy issue] A matter of concern.”

He added, “The second thing is the possibility for the Chinese government to push propaganda or suppress content it doesn’t like and basically manipulate the content Americans see.”

Wang said there is currently not enough systemic information to prove that the Chinese government did this in relation to US politics, but the threat still remains.

“Chinese companies are beholden to the Chinese government, which absolutely has an agenda to undermine freedom around the world,” Wang said. He said that although China has no specific agenda to suppress content or promote propaganda in the US today, tensions are rising between the two countries. If a conflict comes to a head in the future, China could “really take advantage of TikTok in a way that they’re not doing right now.”

Of course, American companies have also been at the center of efforts by foreign entities to undermine democratic processes. One need look no further than this Cambridge Analytica scandal And Russia’s use of Facebook political ads As a high-profile example, to influence the 2016 presidential election.

That’s why Wang says more important than a ban on TikTok is comprehensive data privacy legislation that protects user data from exploitation and violation by all companies.

Wang explains, “I mean, if China wants Facebook data today, it can buy it on the market.”

TikTok’s prospects in court are unclear

The government has a tough case to prove, and this is by no means a definitive decision. If the precedent set by previous court decisions is applied to TikTok’s future case, the company has nothing to worry about. After all, as Mirel predicted, it appears that the TikTok ban has been added as the necessary sweetener to pass a larger bill that would approve aid for Israel and Ukraine. However, the current administration may also disagree with how courts have decided to limit TikTok in the past, and may want to challenge that.

“When this case goes to court, the government (i.e., the Justice Department) will ultimately have to prove that TikTok poses an imminent threat to the national security of the country and that there are no other viable alternatives to protect that national security interest.” Is. This legislation calls for disinvestment/sanctions,” Mirele told TechCrunch in a follow-up email.

“For its part, TikTok will insist that its own (and perhaps its users’) First Amendment rights are at stake, will challenge all claims that the platform poses any national security risk, and will argue that Efforts already made by both governments (for example, through a ban on the use of TikTok on all federal government devices) and by TikTok itself (for example, through its ‘Project Texas’ initiative) have not led to any The significant national security threat has been effectively mitigated,” he explained.

Biden signs in December 2022 a bill Banning the use of TikTok on federal government devices. Congress is also considering a bill called the Sanctions Act that would give the federal government more authority to address the risks posed by foreign-owned technology platforms.

“If Congress had not thought so [Project Texas] That was enough, they could draft and consider legislation to extend that protection,” Mirrell said. “There are plenty of ways to deal with data security and potential impact issues other than divestment, let alone sanctions.”