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Critics from across the political spectrum warned a bill passed last week by the U.S. House of Representatives that could ban TikTok also grants the executive branch sweeping censorship powers, threatening First Amendment protections.
“We’re deeply disappointed that our leaders are once again attempting to trade our First Amendment rights for cheap political points during an election year,” said Jenna Leventoff, senior policy counsel at the American Civil Liberties Union (ACLU).
“Just because the bill sponsors claim that banning TikTok isn’t about suppressing speech, there’s no denying that it would do just that,” she added.
Daniel MacAdams, executive director of the Ron Paul Institute for Peace and Prosperity, told The Defender the bill is a “particularly egregious attack on the U.S. Constitution.”
In addition to requiring TikTok to change its ownership structure, MacAdams said, the bill “vests in the person of the president the power to declare a website, mobile or desktop computer application or hosting service a ‘foreign adversary-controlled entity’ and thus subject to removal.”
The House last week voted overwhelmingly in favor of the bill (H.R.7521), which would compel TikTok’s parent company ByteDance to either divest itself of Chinese ownership or be banned from app stores in the U.S. within six months.
The bill also empowers the executive branch to unilaterally identify and ban other entities the government deems a national security threat.
The bill sailed through the House with bipartisan support by a margin of 352-65. President Joe Biden has said he will sign it into law if it passes the U.S. Senate.
The Biden administration and Congress contend that because ByteDance is Chinese, the TikTok platform poses a national security threat to the U.S. It warned the Chinese government could use the app to shape what users see, giving it the power to, among other things, meddle in the upcoming U.S. elections.
Administration officials also said they are worried Beijing could compel TikTok to share the personal data of the app’s nearly 150 million U.S. users with the Chinese government.
“In passing the ‘TikTok ban’ the U.S. government is doing exactly what it accuses the Chinese Communist government of doing: controlling what its citizens can see and read,” MacAdams said.
He added:
“Americans who are concerned that a foreign entity may be collecting data about them on a particular website or application have the option of not using that website or application.
“No one is forced to use TikTok and certainly the U.S. federal government has no Constitutional authority to forbid Americans from using it.”
‘The house is on fire’: the First Amendment issues
The ACLU argued banning TikTok would have “profound implications for our constitutional right to free speech and free expression” because millions of Americans who use the app daily for information, communication, advocacy and entertainment would be deprived of that access.
Comments made by both Democrat and Republican sponsors suggested they are strongly motivated by a desire to curtail TikTok’s ability to circulate content they don’t like, according to the Electronic Frontier Foundation.
In his speech against the bill on the house floor, Rep. Thomas Massie (R-Ky.) said the First Amendment issues extend well beyond the implications of banning the TikTok app alone. He called the bill a “trojan horse” that would allow for the massive extension of executive power.
The so-called TikTok ban is a trojan horse.
The President will be given the power to ban WEB SITES, not just Apps.
The person breaking the new law is deemed to be the U.S. (or offshore) INTERNET HOSTING SERVICE or App Store, not the “foreign adversary.”https://t.co/iKtAQFGeQH pic.twitter.com/P26hEbzQrf
— Thomas Massie (@RepThomasMassie) March 12, 2024
The bill prohibits apps in the U.S. from being controlled by a “foreign adversary.” However, as MacAdams noted and journalist Matt Taibbi reported, it also extends that regulation to websites, apps and immersive technologies that are “determined by the President to present a significant threat to the National Security of the United States.”
Taibbi wrote:
“A ‘foreign adversary controlled application,’ in other words, can be any company founded or run by someone living at the wrong foreign address, or containing a small minority ownership stake.
“Or it can be any company run by someone ‘subject to the direction’ of either of those entities. Or, it’s anything the president says it is.
“Vague enough?”
Taibbi added that the passage of the ban puts Congress “back fully in line with the national security establishment on speech.”
Journalist Michael Tracy told journalist Glenn Greenwald on “System Update” that this part of the bill empowers the president to unilaterally, “without any checks and balances from Congress,” designate an app, a website or other internet services as a national security threat “totally on his own whim” for censorship.
The president would have to submit a public notice about it and report it to Congress, but such a move would not require Congress’ consent, he said.
Newsweek reported that the bill was spurred on by a secret briefing last week by the FBI, the U.S. Department of Justice and the director of National Intelligence. If the bill passes on the desired timeline, Americans will lose their access to TikTok just before the November elections.
Taibbi raised concerns about how the ban fits into the recent history of national security measures in the 9/11 era. Governmental measures instituted by the George W. Bush administration and originally aimed at “enemy combatants” thought to be supporting the Taliban or al Qaeda forces were quickly reinterpreted to be almost anyone, including American citizens.
Exactly. The TikTok bill is how rights erosions always always always work:
Pick a target to start with that everyone hates or fears, so that everyone unites in support, nobody wants to defend.
Then the precedent is set, so when it expands inward, nobody can object any longer. https://t.co/ME4FpvESBd
— Glenn Greenwald (@ggreenwald) March 14, 2024
MacAdams said he thought the expanded powers would be used to target the “few remaining media and social media companies — like Twitter/X and Rumble — that resist government efforts to apply heavy-handed censorship of ideas it does not want to get out.”
Mary Holland, president of Children’s Health Defense, told The Defender that the “unprecedented powers” the “TikTok ban” gives to the president to control internet speech is “extremely dangerous to protected speech in the U.S.”
“The threat to free speech could not be clearer in this era of ‘controlling misinformation,’” she said. “I agree with Matt Taibbi’s apt analogy, ‘forget the furniture. The house is on fire.’”
Holland recommended readers call their senators “to let them know your thoughts on the TikTok bill,” she added.
Why TikTok?
The Protecting Americans from Foreign Adversary Controlled Applications Act doesn’t exactly “ban” TikTok — it gives the company the option to divest its Chinese ownership before the ban goes into effect.
But ByteDance said it would be impossible to do that on the proposed timeline, a fact lawmakers conceded.
Former Treasury Secretary Steve Mnuchin, who actively campaigned against Chinese ownership, announced he was assembling a group of investors to purchase the platform.
Scott McCollough, a Texas-based technology attorney, told The Defender the bill is an attempt by interests within the U.S. government to “wrest control of TikTok” from ByteDance for themselves.
“It’s not that TikTok is a source of ‘misinformation’ or ‘malinformation’ or other propaganda — which it is of course,” McCollough said. “But that’s not the problem they are concerned with. Information from users is going to be collected by some intelligence service and our government doesn’t want it going to someone else and not them.”
“They want control so they can do the same things with TikTok they do with other social media outlets they control,” he said, “which does of course include the kind of censorship and suffocation of expression that we already see with the entities that they already control — the Facebooks, the Instagrams, etc.”
Greenwald similarly noted that the “winner of this bill will be either the fact that tens of millions of Americans who now use TikTok will be forced onto Facebook and Google, platforms we know are easily controlled by the U.S. Security State if TikTok ends up being banned,” or that TikTok itself will function similarly if an American company takes it over.
According to the Electronic Frontier Foundation, if lawmakers were truly concerned about users’ privacy, they would enact stronger privacy laws. Instead, the foundation said, the government engages in “mass collection of communication data” — 3.4 million warrantless searches by the FBI under Section 702 of the FISA Amendments Act in 2021 alone. And they have many other means to collect user data, it noted.
The House vote came a few days before the U.S. Supreme Court was set to hear oral arguments in Murthy v. Biden (formerly Missouri v. Biden), the landmark free speech case that could determine whether the U.S. government can legally coerce or “significantly encourage” tech companies to remove content from social media platforms.
That means two major political decisions involving the ability of federal actors to censor social media are on the table at the same time, with fundamental questions about the future of the First Amendment at stake.
Bipartisan push to ban TikTok several years in the making
The push to ban TikTok began in 2020, when then-President Donald Trump issued an executive order effectively banning TikTok from operating in the U.S., contending that the way the app managed user data made it a threat to national security.
In response, TikTok made a series of concessions about how it stored data on U.S. users and moderated content.
Last year, Congress considered passing the RESTRICT Act — the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act, or Senate Bill 686 — which would have given the federal government new powers ostensibly to mitigate national security threats posed by technology products from countries that the U.S. deems adversarial.
That bill, which also would have created a legal framework through which the U.S. government could ban TikTok, didn’t pass.
Teen mental health and TikTok
Many advocates of the bill say they support it as a measure to protect the mental health of teenagers and children.
Jean Twenge, Ph.D., a San Diego State University psychology professor and author of the popular 2017 essay “Have Smartphones Destroyed a Generation?,” told Fox News, “The more hours per day kids spend on social media, the more likely they are to be depressed.”
“TikTok has a particularly sticky algorithm,” she said. “People think they are going to go on it for 20 minutes and they go on it for two hours.”
Twenge said TikTok is particularly popular for young children. When they spend time on social media, she said they aren’t doing things that are better for mental health, like sleeping, getting outside and spending time socializing in person.
But, she also said, transferring ownership of the app to American investors would not resolve those issues.
Greenwald said that as a father of teenagers, he also thought social media apps could be very damaging to young people.
“You have to constantly combat the fact that these apps are constructed to worry your kids and to keep them online and attached to these apps,” Greenwald said. “They’re designed to not let people off, to keep them in a trance.
He conceded there is a clear correlation between young people’s mental health issues and social media app use.
“But this is not unique in any way to TikTok,” he said. “Maybe TikTok does it a little bit better, but these addictive behaviors that people are concerned about with TikTok are just as powerful, at least in the same category as Facebook, as YouTube.”
In May 2023, as the Biden administration was advocating for the passage of the RESTRICT Act the surgeon general’s public advisory warned that social media can pose a “profound risk of harm to the mental health and well-being of children and adolescents.”
Critics noted this advisory made some good “common sense” recommendations for tech companies and families, but that it might “overstate” social media as the cause of youth mental health issues on social media alone.
