Today’s post by BC Law professor and associate dean for academic affairs Daniel Lyons originally appeared on the American Enterprise Institute (AEI) AEIdeas blog. You can view the post here.
By Daniel Lyons
TikTok CEO Shou Zi Chew recently testified before Congress in a hearing ostensibly asking “How Congress Can Safeguard American Data Privacy and Protect Children from Online Harms.” In reality, the five-hour session more closely resembled Grandpa Simpson shaking his fist at clouds than a nuanced discussion of cybersecurity. There appears to be a growing, bipartisan consensus that Congress should do something about the popular social media platform. But before deciding what should be done, legislators must discern what precisely are the unique policy challenges that TikTok presents.
Committee Chair Cathy McMorris Rodgers (R-WA) opened the hearing by declaring provocatively, “your platform should be banned.” Her sentiments echo those of Senator Josh Hawley (R-MO), who continues to push a TikTok ban bill. Such proposals are impractical;150 million Americans reportedly use the app. These proposals are also probably unconstitutional. As I’ve detailed elsewhere, to survive judicial scrutiny, the government must show that this ban (1) furthers an important government interest unrelated to speech, and (2) does not burden substantially more speech than necessary to achieve that interest. Assuming the first prong is met, there are almost certainly solutions to TikTok’s problems that do not involve suppressing millions of dance videos, sea shanties, jokes, and other innocuous content protected by the First Amendment.
But this does not mean the underlying concerns motivating these calls are meritless. Indeed, an advantage of the First Amendment’s approach is that it forces policymakers to identify with particularity the problem they wish to solve and then propose a solution that is narrowly tailored to address the problem without infringing on speech. One lesson from the TikTok hearing is that the committee’s concerns run the gamut, and there is no clear consensus on what, precisely, Congress thinks is wrong.
Several committee members faulted TikTok for spreading misinformation and collecting potentially sensitive data about its users. TikTok’s proponents used these comments to argue that the platform is being singled out unfairly, as these and other issues raised at the hearing are endemic in the tech industry. But this argument is incomplete. One can recognize that social media platforms present policy challenges in general and that TikTok’s corporate structure presents unique national security concerns. Although Chew is Singaporean—a fact he repeatedly stressed but which seemed to be lost on some committee members—TikTok is owned by Beijing-based ByteDance Ltd. The possibility that the Chinese government can leverage ByteDance for intelligence purposes is a risk unique to TikTok and justifies TikTok-specific solutions.
The US government actively seeks to mitigate TikTok’s data security risks. For almost three years, the Committee on Foreign Investment in the United States (CFIUS) has been negotiating with TikTok to limit China’s ability to access information on American users and improve its cybersecurity measures. This led TikTok to launch Project Texas— an effort centered on a US subsidiary, TikTok US Data Security Inc., that would control most American operations but report to CFIUS rather than ByteDance. Oracle Cloud would host the subsidiary’s data operations and monitor the subsidiary’s data flows to safeguard against national security risks. House committee members seemed unimpressed with these mitigation measures. The Biden administration also seems unsatisfied, as it has reportedly called for ByteDance to divest the platform by selling it to a non-Chinese owner.
Using TikTok to spread propaganda is another potential risk, although it is not easily addressed by regulation. As Senator Rand Paul (R-KY) noted when blocking Hawley’s bill, the First Amendment protects supporters of communism—or authoritarianism, or whatever label we want to place on those favoring Chinese-style government. As Paul notes, the Chinese government itself routinely bans platforms and content with which it disagrees, including most American social media apps. We cannot, and should not, combat China by emulating its behavior. As always, the solution to bad speech is more speech, using the truth about China’s repressive policies to counteract any sympathy it may seek to generate via the app.
By and large, TikTok’s critics are not motivated by simple xenophobia. They recognize that China is rapidly becoming a geopolitical foe whose policies—from human rights abuses in Tibet to “reeducation” of the Uyghurs to the brutal crackdown on Hong Kong democracy—are often at odds with basic American principles. It’s reasonable to fear that China might use its window into half of America’s devices to gain an upper hand in that geopolitical struggle. But solutions should focus narrowly on mitigating that risk. Ham-handed bans jeopardize not just the simple pleasures of millions of TikTok users but core free speech values as well.
Daniel Lyons is a BC Law professor and currently serves as the school’s associate dean for academic affairs. He posts frequently on the AEIdeas blog. Contact him at firstname.lastname@example.org.