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Informed Citizens

are Better Citizens

by Emily Pecot

Since its creation in 2016, TikTok, the short-form video-sharing app, has grown significantly. Currently, TikTok has approximately 1.1 billion active users worldwide—150 million of them are in the United States where the app launched in 2018.  According to the Pew Research Center, two out of three American teenagers use TikTok.

Despite its popularity, an August 2023 Reuters/Ipsos survey revealed that nearly half of Americans support a full or partial ban on TikTok. This comes after government officials have expressed national security concerns about TikTok’s China-based parent company, ByteDance.

“Lawmakers and regulators in the West have increasingly expressed concern that TikTok and its parent company, ByteDance, may put sensitive user data, like location information, into the hands of the Chinese government,” according to reporting from The New York Times. “They have pointed to laws that allow the Chinese government to secretly demand data from Chinese companies and citizens for intelligence-gathering operations.” The New York Times pointed out that the U.S. government is also worried that China may pressure TikTok to use its algorithm to push misinformation that benefits the Chinese government.

“TikTok’s security, privacy and its relationship with the Chinese government is indeed concerning, but a total ban is not the answer,” Kurt Opsahl, deputy executive director and general counsel for the Electronic Frontier Foundation, a non-profit digital rights group, told Government Technology magazine. “A total ban is not narrowly tailored to the least restrictive means to address the security and privacy concerns, and instead lays a censorial blow against free speech.”

In December 2022, ByteDance admitted in an internal investigation that two employees working in the U.S. and two employees working in China wrongfully accessed the private information of American TikTok users, including two U.S. journalists. All four employees were fired; however, the incident reinforced concerns that U.S. lawmakers already had. The U.S. Department of Justice is currently investigating the incident.

Addressing national security concerns

In March 2023, U.S. Senator Mark Warner, a member of the Senate Intelligence Committee, introduced The Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act. The legislation would, among other things, require the U.S. Secretary of Commerce to establish procedures to identify and mitigate transactions involving information and communications technology products in which a foreign adversary has an interest and poses undue or unacceptable risk to national security. The RESTRICT Act initially received bipartisan support; however, free speech organizations, including the American Civil Liberties Union (ACLU), pushed back against the bill.

“Congress must not censor entire platforms and strip Americans of their constitutional right to freedom of speech and expression,” Jenna Leventoff, senior policy counsel at the ACLU, said in a press statement. “Whether we’re discussing the news of the day, live streaming protests, or even watching cat videos, we have a right to use TikTok and other platforms to exchange our thoughts, ideas, and opinions with people around the country and around the world.”

Critics say the solution to preserving national security shouldn’t be enacting laws that echo those of China, where major social media platforms are banned or restricted.

“It’s a maddening irony that American legislators’ idea for countering China is to act more like China, home of the Great Firewall that censors its citizens’ free access to the flow of information,” Rianna Pfefferkorn, research scholar with Stanford University’s Internet Observatory, which studies abuse in information technologies, told Wired. “Banning a popular social media app, especially on the basis of speculative concerns, is directly contrary to the vision of a free and open internet that the US has long promulgated [spread] abroad as part of our commitment to democracy.”

State, national and global bans

In 2019, the Pentagon urged all its employees to uninstall TikTok from all military devices. Efforts to ban TikTok more widely in the United States go back to the summer of 2020 when the Trump administration issued an executive order barring TikTok from operating within the United States. That ban was temporarily blocked while challenges went through the courts. In December 2020, a federal judge halted the ban permanently finding the administration overstepped its authority and “acted in an arbitrary and capricious manner by failing to consider obvious alternatives.”

In June 2021, President Joseph Biden authorized a security review for all foreign-owned apps. In February 2023, President Biden signed a bipartisan bill that gave all federal government agencies 30 days to remove TikTok from federal devices. In addition, the Biden administration urged ByteDance to sell TikTok to an American company or risk a nationwide ban in the U.S. The Chinese Ministry of Congress issued a statement in March 2023 opposing a forced sale of TikTok.

The United States is not the only country that has banned the app on government devices. Great Briain, Australia, Canada, Taiwan, Belgium, Denmark, France and New Zealand have all done so as well. Afghanistan, India, Iran, Kyrgyzstan, Nepal and Somalia have full bans of the app for government agencies as well as citizens. When India banned TikTok in 2020, the app lost 200 million users, making the United States TikTok’s largest market. Interestingly, while the app was developed in China with Chinese technology, it isn’t accessible in that country. China has a different version, the so called “sister app” of TikTok, called Douyin.

As of June 2023, 34 U.S. states have banned TikTok from government devices, according to news reports. In January 2023, New Jersey Governor Phil Murphy issued a directive to remove TikTok from all state-owned devices, making exceptions for some state business, like public safety announcements, as long as there is no connection to a secure state internet network.

One state takes it farther

In April 2023, Montana lawmakers voted 54-43 to ban TikTok, not just on government devices but personal devices as well. Montana Governor Greg Gianforte signed the bill into law in May 2023 making Montana the first state to enact a total ban of TikTok. The law prohibits TikTok from operating within the state, imposing a $10,000-per-day fine on app stores, like the Apple App Store and Google Play, if they allow users in Montana to download the app. Users of the app would not be punished under the law.

TikTok filed a lawsuit against the state in the U.S. District Court for the District of Montana. The complaint claims that Montana’s law violates First Amendment rights for TikTok on “how to host, disseminate and promote third-party speech created by others” and for the app’s users by “unconditionally shutting down the forum for speech for all speakers on the app.” The lawsuit also states that the federal government, not the state government of Montana, is responsible for national security.

In addition to TikTok’s lawsuit against the state, five Montana TikTok users also filed suit challenging the law on free speech grounds. Their lawsuit is being financed by TikTok and has been consolidated into one lawsuit before the court. TikTok estimates that there are approximately 200,000 TikTok users in Montana.

Carl Tobias, a professor at the University of Richmond School of Law, told The Washington Post that Montana’s ban is “a pretty clear violation of the First Amendment” and that TikTok has a strong argument about national security, which “is clearly within the purview of the president and the Congress, not individual states.”

The new law was set to take effect on January 1, 2024; however, on November 30, 2023 a federal judge granted a preliminary injunction preventing the law from going into effect until the case is heard.

“The current record leaves little doubt that Montana’s Legislature and attorney general were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers,” Judge Donald W. Molloy wrote in his opinion. He also stated that Montana’s “foray into foreign affairs interprets the United States’ current foreign policy interests and intrudes on them.”

Grilling TikTok’s CEO

In March 2023, during a nearly six-hour hearing before the House of Representatives Energy and Commerce Committee, TikTok CEO Shou Zi Chew testified about everything from privacy issues on the app, its relationship to China and potential pressure for it to release private data to Chinese authorities, as well as issues of disinformation on the platform and addiction to the platform.

During the hearing, Chew was repeatedly asked whether TikTok employees could “spy on or target people in the U.S.” Chew said he had “seen no evidence that the Chinese government has access to that data. They have never asked us; we have not provided it,” he stated.

To address security concerns, TikTok proposed a plan in 2022 called Project Texas. At a cost to TikTok of $1.5 billion, the app would partner with tech giant Oracle to move TikTok’s American user data to U.S. servers. Only Oracle and TikTok employees based in the U.S. would have had access to the data. The Biden administration rejected the plan, saying it did not go far enough to protect privacy domestically.

Regarding the safety of children on TikTok, lawmakers brought up dangerous “challenges” promoted on the app, including the blackout challenge where challengers hold their breath until they pass out. In 2021, the blackout challenge resulted in the deaths of nearly 20 children. In addition, lawmakers grilled the CEO on TikTok’s addictiveness. Chew pointed to parental controls available on the app.

It’s a community

According to TikTok, more than 5 million businesses use the app as a marketing tool. According to Influencer Marketing Hub, a Denmark company that shows potential influencers how to leverage the power of social media, the creator economy has grown to more than $100 billion annually due to platforms like TikTok. One TikTok influencer told CNBC that his business brought in more than $100,000 in 2022 due to exposure he receives on the app.

Prior to Chew’s congressional testimony, many TikTok influencers gathered in Washington, D.C. at an event coordinated by TikTok. It was a chance for them to express what TikTok means for them and what the consequences of a potential ban would be.

One fashion and beauty influencer, Janette Ok, who has 1.7 million followers, told Fortune magazine that she is able to make a full-time career from her TikTok videos and partnerships she’s made through the app.

Emily Foster, who designs stuffed animals she calls “stuffies,” told CNBC that other social media platforms don’t compare to TikTok in terms of exposure. Foster explained that her first TikTok video received 1,000 views, giving her enough exposure to expand her business. Today, she has 250,000 followers and one recent video received 500,000 views. She told CNBC that beyond the money she makes, she worries about losing her following if TikTok is banned on a national scale.

“You’re never quite alone. It means a lot,” Foster told CNBC. “I’m stressed about potentially losing sales, potentially losing customers, but it’s more so just losing a community that’ll break my heart.”

Discussion Questions

  1. What do you think about the national security concerns surrounding TikTok? Are they warranted? Are they exaggerated? Explain your answer.
  2. List the positive and negative aspects of TikTok. Do the positives outweigh the negatives? Explain in detail.

Glossary Words
algorithm
—a set of rules to be followed in calculations.
arbitrary—in legal terms, lacking logical reason.
bipartisan — supported by two political parties.
capricious — fickle. Liable to sudden changes.
injunction — an order of the court that compels someone to do something or stops them from doing something.

This article originally appeared in the winter 2024 issue of The Legal Eagle, Special Social Media Edition.