free speech

What’s Next After Court Upholds TikTok Ban

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Last week, the DC Circuit Court of Appeals upheld the TikTok divest-or-ban bill against a constitutional challenge. The result was unsurprising given how poorly TikTok fared at September’s oral argument. The decision itself contains many intriguing legal insights at the nexus of national security and free speech. This post examines the Court’s First Amendment analysis and explains why, despite the loss, the popular but problematic platform is unlikely to be shut down.

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TikTok’s No Good, Very Bad Day in Court

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

I have previously discussed the First Amendment implications of a potential TikTok ban. Removing TikTok from US markets implicates not just the speech rights of TikTok US—an American subsidiary of China-based ByteDance—but also those of its 170 million American users, many of whom actively create content on the platform. To prevail, the government must demonstrate that the ban furthers an important governmental interest unrelated to free expression and that it does not substantially burden more speech than necessary to achieve that interest. The latter is particularly challenging, which is why courts enjoined earlier bans on TikTok and WeChat.

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Telegram CEO Arrest and Brazil’s X Ban Raise Free Speech and Privacy Concerns

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Last week, global headlines spotlighted two separate flashpoints in the battle by governments to police social media networks. In Paris, Telegram CEO Pavel Durov was arrested for complicity in distribution of child sexual abuse imagery. And in Brazil, a judge banned X (formerly Twitter) nationwide after the company refused to block certain users on the eve of election season.  While both incidents can be couched as failures to comply with national law, the unusually harsh remedies raise important concerns about free speech and privacy online.

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Concern for Kids Prompts Problematic Internet Regulation, Take 27

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

“What about the kids?” plays an outsized role in the short history of Internet law. From the Communications Decency Act to the Child Online Protection Act, California’s violent video game law, and more, the contours of online regulation have been shaped well-meaning legislation that turned out to be unwise, unconstitutional, or both. 

Last month, the Senate Commerce Committee reported out a bill poised to become the next entry in this dubious canon. The Kids Online Safety Act (KOSA) purports to protect minors from the very real risks posed by social media. But it does so by placing a vague duty of care on a wide range of Internet-based companies in a manner likely to chill significant amounts of online speech and do more harm than good to minors and society in general—in the unlikely event that it survives judicial review.

The crux of the act is Section 3, which requires “covered platforms” to take reasonable measures to prevent and mitigate specific harms to minors, including:

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The AI Revolution Raises Terrifying Questions about Virtual Child Pornography

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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

It was probably inevitable that the artificial intelligence (AI) discourse would eventually turn to virtual pornography. Earlier this week, CBS News noted that increasingly sophisticated AI editing programs can exacerbate the problem of “deepfake” porn: images and videos digitally altered to appear to be someone else. This article came on the heels of a Twitter discussion Matty Yglesias prompted about whether AI-generated pornography could disrupt the adult industry by removing the need for real people to be involved.

But underlying this discussion is an even more frightening concern: the prospect of virtual child sexual abuse material (CSAM). (Hat tip to Kate Klonick.) It may surprise you that Congress was way ahead of the curve on this issue: A quarter-century ago, it banned so-called virtual child pornography, computer-generated imagery designed to look like CSAM. It may further surprise you that the Supreme Court struck down this law as unconstitutional. But the evolution of technology in the decades since suggests that it is time to revisit this problematic decision.

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What to Do About TikTok?

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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.

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