Major Hurdles for the American TikTok Ban

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I predicted over a year ago that TikTok would get banned or divested, but there would be major hurdles. A TikTok ban would face an outcry from the 100+ million Americans who use it and legal challenges that may be difficult for the government to overcome.

That did not stop the U.S. House of Representatives from passing it last week with a strong bipartisan majority. A rarity these days!

I read the bill and if implemented as law, it would ban “foreign adversary controlled applications” (i.e., TikTok) unless they divest. Therefore, if TikTok’s Chinese-controlled parent, ByteDance, does not divest its stake in the popular social media app, TikTok will be banned in America.

A boon for Instagram Reels and YouTube Shorts!

My prediction: ByteDance initially refuses to divest or submit to the ban. They will likely choose a third option: litigation.

Let’s discuss the litigation issues.

Balancing national security against the First Amendment rights of TikTok users

At its core, any lawsuit brought by ByteDance to challenge a ban/divestiture will argue that its First Amendment rights, along with those of its millions of users, have been violated.

The government will likely need to argue that less drastic measures would not be effective. It won’t be sufficient to simply point to the national security risks posed by China potentially having its thumb on the TikTok scale and detrimentally influencing millions of Americans (not mention accessing all of their data).

The reason for this is that judges in previous TikTok litigation have recognized the free speech rights of TikTok users and have noted that they would be harmed by an outright TikTok ban. The burden, therefore, would shift to the government to show that this is the only way to address the national security problem.

Perhaps there are classified docs that justify such a ban? It’s hard to imagine this bill flying through the House without some briefing from the CIA or NSA.

The Berman Amendments — maybe the biggest TikTok ban hurdle

As I described in this article from over a year ago, maybe the biggest TikTok ban hurdle is the Berman Amendments. These are what TikTok’s lawyers relied on when the Trump administration first tried to ban TikTok.

The amendments prohibit a president from regulating or banning “informational materials” from adversarial countries. At the time they were passed in the later years of the Cold War, one of the primary adversaries was Fidel Castro’s government in Cuba.

The bill that recently passed the House has a carve-out for applications whose “primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.”

This language attempts to address the Berman Amendments’ prohibition on banning informational materials, but the question is whether it goes far enough. The current bill text is very limited to product, business, and travel information, which may not be broad enough to address “informational materials.”

My biggest concern with the TikTok ban bill

None of this gets to my biggest concern for the TikTok ban bill, which is less legal and more political. I described it in this tweet/post:

“CONTROLLED BY A FOREIGN ADVERSARY” is a defined term under the bill. The problem is that this definition is very open to interpretation, which means that any creative prosecutor could have a field day.

If the government has a theory that someone is “subject to the direction or control” by a foreign adversary, there’s little to stop them from prosecuting that person under this bill.

If Elon Musk conducted business with the Chinese government through one of his many companies (Tesla has a Shanghai production plant, for example), what’s to stop the U.S. government from arguing that he’s subject to Chinese direction or control? It’s no secret the Biden administration wants to investigate him more (and they’re not completely with good cause, to be fair).

The TikTok ban is well-intentioned, but the current language is ripe for abuse

The overall intention of the TikTok ban is good — the Chinese would not allow an American company like Google or Meta to operate freely within their borders with troves of data on Chinese citizens. America should not agree to the same without at least some degree of reciprocity.

These apps have shown how easily they can influence people and drive public opinion, which makes them a natural place to threaten the national security of any state that permits them.

Although we need reasonable controls to make sure adversaries are not spying on Americans via social media, we also don’t want to give the U.S. government an unlimited license to do whatever it wants. We’ve seen how that goes in the name of “national security” under such sweeping legislation as the U.S. Patriot Act.

The language of the current bill needs to be tightened up around what we mean by “direction” and “control” from a foreign adversary. Otherwise, these will be huge areas of upcoming litigation, not to mention the loss of liberty for businesses trying to operate in adversarial jurisdictions like China.

It’s also important to note that this bill applies to any application that is under foreign adversarial control. It’s not limited to TikTok, even though it’s obvious that’s who it was written to target.

So while we do not want China or any adversary to threaten U.S. national security, we don’t want to license the U.S. government to infringe on our rights in the name of national security either.

That’s like an open invitation for the fox to invade the hen house.

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