Censorship Under the Guise of Security: The TikTok Ban Part I

The Supreme Court has announced that it will hear arguments related to the controversial TikTok ban. The Court of Appeals for the D.C. Circuit previously upheld the law banning the social media platform if it is not sold to a competitor, and TikTok’s request for an injunction while it works on a response was denied. An important point to note is that the media coverage has largely misunderstood the Supreme Court’s announcement, which pertains specifically to the injunction at this time, rather than the constitutionality of the ban itself. It is an encouraging development and likely a precursor for the high court reversing the lower court’s decision. The bill is nothing less than an attack on free expression and the rule of law and sets a dangerous precedent for presidential overreach.

Though it is popular to make the snide reductionist comment that TikTok is a platform for teenagers to upload dancing videos, TikTok is plausibly the most successful digital social platform to date. TikTok, owned by a Chinese parent company called Bytedance, is a modern-day equivalent of the public square, where ideas are exchanged, people are able to learn new skills, and individuals engage in creative expression and connect with others. With over a billion active users worldwide, TikTok has become a vital platform for artistic experimentation, political discourse, and community building. A growing portion of Americans get their news from TikTok, and the application has been vital to countless small businesses and entrepreneurs.

However, the platform has been marred by complaints that it is an instrument for Chinese soft power. The theory goes that TikTok is either a venue for Chinese propaganda or it enables more effective Chinese propaganda. Because of the volume of user data, TikTok supposedly enables China to stir up sophisticated anti-American sentiment. Another claim is that TikTok is actively spying on Americans.

One of the loudest proponents of the ban is Congressman Dan Crenshaw, who ironically chastised Senator Rand Paul for rightfully pointing out that banning a foreign social media platform is something an authoritarian government would do. Crenshaw says that defenders of TikTok are “not defending the First Amendment.” and “Our First Amendment doesn’t apply to the CHINESE COMMUNIST PARTY (emphasis in the original).” It is worthwhile to remember that the principles of free speech, while not absolutely unfettered, derive from the nature of our humanity, not from civil privileges doled out by the American government. Foreigners are presumed to have free speech rights, a point reinforced since the 1945 Supreme Court case Bridges v. Wixon, while other decisions guarantee equal treatment and due process. With that aside, Crenshaw’s argument also makes the error of conflating the Chinese government with TikTok, a private company operating in the United States. You can even see the bias in coverage when media outlets criticize perfectly legitimate activities. In an op-ed, Dewardric McNeal says TikTok “weaponizes” its influence by encouraging people to reach out to their elected representatives, which is a constitutionally protected right. That is, McNeal’s criticism is that TikTok encourages Americans to engage with their representatives. 

In any case, the related inference that TikTok suppresses content to promote anti-western ends is hysterical. Anyone using the app can very easily find politics of every stripe, including anti-CCP content. During Senator Tom Cotton’s notorious questioning of TikTok CEO Zi Chew, Cotton implied that a study showed events like the Tiananmen Square Massacre are shadow-banned despite clips and commentary being readily available on the platform. 

The study from a Rutgers University-affiliated research center—the same study Tom Cotton seems to have relied on—suggested that the differences in political hashtags on TikTok were troubling. However, the study did not actually determine that TikTok was malfeasant and only suggested that there was a strong possibility that the content on TikTok was aligned with China’s interests. 

However, the study was quickly discredited for its flawed methodology—it didn’t compare apples to apples and was plagued by other cohort effects, meaning that there were problems with the subject groups. The study’s purported findings are now moot.

The alleged examples of TikTok censorship can be essentially chalked up to violations of TikTok’s terms and services against bullying, harassment, and the portrayal of explicit violence, all of which are TikTok’s prerogatives and have nothing to do with China. When scholars looked directly into TikTok’s policy of “censorship,” they came up empty-handed.

After reviewing the arguments, the Georgian Institute of Technology, School of Public Policy, Internet Governance Project concluded that “TikTok is not exporting censorship, either directly by blocking material or indirectly via its recommendation algorithm. Its content policies are governed by market forces.” and pointed out that “TikTok is a commercially-motivated enterprise, not a tool of the Chinese state.” Anyone concerned about the national security aspect of the ban should read the paper in full.

Even if TikTok were just a 24/7 broadcast of Chinese propaganda, the argument would still fail. The judicial review standard of strict scrutiny holds that when a law burdens a fundamental right, in this case, freedom of speech, the law has to be “narrowly tailored” and serve the government’s legitimate interests. The TikTok ban does not meet this requirement. 

An amicus brief by the Knight First Amendment Institute, Free Press, and PEN America argues that the Act banning TikTok fails strict scrutiny because, “As an initial matter, the suppression of speech is not a permissible means of addressing concerns about misinformation and propaganda. The First Amendment forecloses the government from suppressing speech on the basis of its truth or falsity.” Even if the government wanted to protect American data, which is frankly unapparent, Congress could have passed data privacy regulations instead of an effective ban.

At the heart of the government’s case against TikTok lies a glaring absence of compelling evidence that the app is spying on American citizens for the Chinese government. The congressional committee on the Chinese Communist Party, which was chaired by Mike Gallagher, the author of the bill that bans TikTok, has seemingly conducted a secret trial in absentia. We are told that Congress has been made aware of possible security risks, but no relevant evidence has been produced. The supposed proof against TikTok amounts to “just trust me, bro”—which is rich coming from one of the least trusted institutions in America. 

This lack of substantiation should be a concern for anyone committed to the principles of a free society. Free societies distinguish themselves by adhering to the rule of law, under which guilt must be proven rather than presumed. The United States government, however, seems content to convict TikTok through vague assertions without providing public evidence to substantiate these claims.

Such want of evidence undermines the whole basis of America’s legal norms. A constitutional republic should thrive based on due process, not insinuation or paranoia. If it is to ban TikTok or coerce divestment, the government should be required, at the very least, to present a clear case based on evidence.

When the United States banned products from the Chinese telecom company Huawei, there were at least articulated reasons for their products possibly interfering with sensitive communications, and there was enough evidence for the U.S. Justice Department to charge Huawei with racketeering conspiracy and conspiracy to steal trade secrets. This was in addition to a federal indictment against Huawei’s chief financial officer for fraud and trade violations. In 2021, the United States banned NSO Group and Candiru of Israel, Positive Technologies of Russia, and Computer Security Initiative Consultancy of Singapore. They were added to the “Entity List for Malicious Cyber Activities” because of demonstrable evidence that these companies were peddling illegal spyware or were otherwise engaged in hacking. 

TikTok is not in the same boat as these companies, and allegations of their wrongdoing are simply hypothetical. It has been reported that “To date, there is no public evidence that Beijing has actually harvested TikTok’s commercial data for intelligence or other purposes.” The danger here is that national security concerns become a carte blanche for overreach, granting the executive branch sweeping powers to act against entities it perceives as adversarial. But a ban without proof is illiberal. Secret evidence is really no evidence at all. 

Moreover, proponents say that banning TikTok is in the national interest, but they have only alleged (without producing evidence) that TikTok user data can be used for nefarious purposes. Technical security matters do not imply that there are national security concerns. For example, if military communications were compromised, that could be a national security issue, but a credit card skimmer at your local gas station or downloadable spyware would normally not be. Until an articulated connection is made between technical flaws in TikTok and national security, the premise of the argument is a non sequitur. 

Banning TikTok undermines the autonomy of millions of American users, who should be free to choose the platforms they engage with. A just society trusts its citizens to make informed decisions rather than paternalistically shielding them from potential (and, in this case, unproven) harm. The banning of TikTok is, in essence, a vote of no confidence in the American people. 

Imagine if the government, citing some vague concerns about foreign influence, sought to shutter a major newspaper or television network. Suppose the United States banned Der Spiegel or The Guardian because they are foreign platforms. This would rightfully provoke outrage, as it would threaten not only press freedom but the broader principle of free expression. TikTok, in its own way, serves a similar function: it provides space for the dissemination of ideas, however trivial or profound. Silencing it under the guise of national security risks setting a precedent where the federal government can curtail expression at will.

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