Is Time Running Out for Tiktok?

By: Morgan Dreher

Edited by: Isabel Gortner and Sarah Wachs

Is TikTok officially banned? This question has infiltrated headlines and social media feeds in the past few years, only to end up a false alarm – but this time is different. On April 24, 2024, President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act. This legislation gives TikTok’s parent company, ByteDance, nine months to divest from the app, potentially adding three months if a sale is pending. [1] The government cites national security concerns as its justification for the ban, but the legitimacy of these concerns is questionable. 

The bill’s framing searches for a loophole to appear as a regulation, while its effects are more similar to those of a ban. It “prohibits distributing, maintaining, or providing internet hosting services for a foreign adversary controlled application,” but TikTok and ByteDance are the only companies explicitly named in the bill, suggesting that it is intended as a targeted ban. [2] If ByteDance does not divest from TikTok, the app will no longer be available through Apple and Google app stores in the United States and the inability to install updates and bug fixes will undermine the functionality of the app over time. [3] There may be potential workarounds such as virtual private networks (VPNs) that users employ to hide their locations. Nevertheless, only time will tell the speed and degree to which 170 million American users may lose access to TikTok. [4]

The Act was passed with haste: it was introduced in March and passed one month later. [5] This diversion from Congress’ usual speed implies that their national security concerns are pressing. Because Chinese law requires organizations to provide their data to China’s government upon request, US government officials fear the weaponization of data harvested from TikTok. [6] In addition, they worry the Chinese government will attempt to use the app as a political tool by influencing users with propaganda and censorship. [7] Interestingly, other countries have expressed similar concerns, with some banning the app on government devices, [8] and India banning the app entirely in 2020. [9]

So, will ByteDance make the sale? It appears that even if they wanted to, it is not feasible, “not commercially, not technologically, not legally.” [10] It is not possible to transfer all of TikTok’s source code and algorithm from ByteDance to an American company, as Chinese regulation would not permit it, and these resources are essential to maintaining the app. [11] Plus, petitioners of the Act point out that isolating the app as an American platform would create an “island,” disconnecting Americans from the global engagement currently fostered on the app. [12] So with the sale off the table, is it time to say goodbye to TikTok? Signs say not yet.

This is not the first time TikTok has been threatened in the United States. Former President Donald Trump attempted to eradicate the app in 2020 through an executive order but was blocked by federal judges who claimed he did not adequately prove a national security risk. [13] About three years later, Montana attempted a statewide ban of TikTok, but a federal district judge similarly blocked the state for lacking proof of a threat and for First Amendment concerns. [14] It is no surprise that these same grounds are bringing into question the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.

Issues detected in the Act range from Due Process violations to “unlawful taking of private property without just compensation,” but TikTok is suing the United States government on the grounds of a First Amendment violation. [15] This case will be examined under strict scrutiny. This means that for the US government to interfere with free speech, they must demonstrate a compelling reason by showing that the threat is real. [16] In addition, the government must prove that its solution is the narrowest possible, and so far they have done neither. [17]

Legal precedent clarifies that a hypothetical threat to national security is not a sufficient reason to block freedom of speech. [18] While US government officials have expressed their concerns over what might happen, they have no concrete proof of a threat. Meanwhile, TikTok claims they never have and do not plan on sharing US user data with the Chinese government. [19] Furthermore, the Act also does not oblige with the second requirement of strict scrutiny, which necessitates that it be the least restrictive option for the specified aims. Even though TikTok has invested $2 billion in “Project Texas,” a design for a firewall between US TikTok data and ByteDance, [20] the government claimed it was an inadequate solution because ByteDance would keep the algorithm and source code. [21] This means the government must prove in court that “Project Texas'' will not suffice, and that there is no less restrictive way of achieving national security. 

Of course, there is always a possibility this case is decided in favor of the government, given the conservative nature of the legislation and the courts. This could set a dangerous precedent moving forward – after all, this is the first time Congress has holistically banned an entire speech platform. [22] The Act also specifies that platforms focused mostly on “product reviews, business reviews, and travel information” are exempt, [23] meaning that the government is restricting certain types of speech they view as “disfavorable.” [24] In an age of media censorship, this precedent could have a domino effect allowing the government to ban entire platforms and discriminate between types of speech.

But do not fret about losing TikTok yet – the Constitution is on the side of the 170 million United States TikTok users. The US government has a lofty task ahead of them to withstand strict scrutiny, and so far they have not demonstrated any qualification under the standards. However, the fact that this Act was passed in the first place is an indicator of the time in which we are living. Freedom of speech is one of multiple constitutional rights that is under siege. These rights are inextricably linked to our democracy – as our rights are stripped away, we lose our power as a people. No matter whether you are a TikTok user, this legislation indicates a dire concern for the American people.

Notes:

1. “What a Tiktok Ban in the US Could Mean for You,” AP News, April 24, 2024. https://apnews.com/article/tiktok-divestment-ban-what-you-need-to-know-5e1ff786e89da10a1b799241ae025406.

2. Congress.gov, "H.R.7521 - 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act," March 14, 2024. https://www.congress.gov/bill/118th-congress/house-bill/7521. 

3. “What a Tiktok Ban in the US Could Mean for You.”

4. Bobby Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment,” NPR, May 14, 2024. https://www.npr.org/2024/05/14/1251086753/tiktok-ban-first-amendment-lawsuit-free-speech-project-texas.

5. Paul Matzko, “A TikTok Ban Passes, But the Courts Are Next,” Cato at Liberty, April 24, 2024. https://www.cato.org/blog/tiktok-ban-passes-courts-are-next.

6. Caitlin Yilek, “Why U.S. Officials Want to Ban Tiktok,” CBS News, April 24, 2024. https://www.cbsnews.com/news/tiktok-ban-congress-reasons-why/. 

7. Yilek, “Why U.S. Officials Want to Ban Tiktok.”

8. “Which Countries Have Banned TikTok and Why?” Euronews, March 14, 2024. https://www.euronews.com/next/2024/03/14/which-countries-have-banned-tiktok-cybersecurity-data-privacy-espionage-fears.

9. Krutika Pathi, “Here’s What Happened When India Banned Tiktok,” PBS, April 24, 2024. https://www.pbs.org/newshour/world/heres-what-happened-when-india-banned-tiktok.

10. Ashley Capoot, “TikTok Sued the U.S. Government to Block a Ban. Here’s What Happens Now,” CNBC, May 8, 2024. https://www.cnbc.com/2024/05/08/tiktok-sued-the-us-government-to-block-a-ban-heres-what-happens-now.html.

11. TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act,” DocumentCloud, May 7, 2024. https://www.documentcloud.org/documents/24651190-tiktok-petition.

12. TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.”

13.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

14.  Matzko, “A TikTok Ban Passes, But the Courts Are Next.”

15.  TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.”

16.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

17.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

18.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

19. “What a Tiktok Ban in the US Could Mean for You.”

20.  Allyn, “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.”

21.  Yilek, “Why U.S. Officials Want to Ban Tiktok.”

22. TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.”

23. Congress.gov, "H.R.7521 - 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act." 

24. TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.”

Bibliography:

Allyn, Bobby. “Legal Experts Say a Tiktok Ban without Specific Evidence Violates the First Amendment.” NPR, May 14, 2024. https://www.npr.org/2024/05/14/1251086753/tiktok-ban-first-amendment-lawsuit-free-speech-project-texas.

Capoot, Ashley. “TikTok Sued the U.S. Government to Block a Ban. Here’s What Happens Now.” CNBC, May 8, 2024. https://www.cnbc.com/2024/05/08/tiktok-sued-the-us-government-to-block-a-ban-heres-what-happens-now.html.

Congress.gov. "H.R.7521 - 118th Congress (2023-2024): Protecting Americans from Foreign Adversary Controlled Applications Act." March 14, 2024. https://www.congress.gov/bill/118th-congress/house-bill/7521. 

Matzko, Paul. “A TikTok Ban Passes, But the Courts Are Next.” Cato at Liberty, April 24, 2024. https://www.cato.org/blog/tiktok-ban-passes-courts-are-next.

Pathi, Krutika. “Here’s What Happened When India Banned Tiktok.” PBS, April 24, 2024. https://www.pbs.org/newshour/world/heres-what-happened-when-india-banned-tiktok.

TikTok Inc., and ByteDance Ltd. “Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.” DocumentCloud, May 7, 2024. https://www.documentcloud.org/documents/24651190-tiktok-petition.

“What a Tiktok Ban in the US Could Mean for You.” AP News, April 24, 2024. https://apnews.com/article/tiktok-divestment-ban-what-you-need-to-know-5e1ff786e89da10a1b799241ae025406.

“Which Countries Have Banned TikTok and Why?” Euronews, March 14, 2024. https://www.euronews.com/next/2024/03/14/which-countries-have-banned-tiktok-cybersecurity-data-privacy-espionage-fears.

Yilek, Caitlin. “Why U.S. Officials Want to Ban Tiktok.” CBS News, April 24, 2024. https://www.cbsnews.com/news/tiktok-ban-congress-reasons-why/.