TikTok is a short-form video hosting service that has made the news lately. While the video-sharing app has brought entertainment and information to millions, it is facing the possibility of a ban in the United States. But why? It is true that TikTok collects data, gets people addicted on social media, and can be used to find what some would deem inappropriate or inaccurate information. TikTok also has had its share of vulnerabilities, privacy violations, and dubious practices. But the same could be said for Facebook, Instagram, Twitter, and YouTube. What is different about TikTok? In two words, Chinese influence.
TikTok is a company that is owned by ByteDance (字节跳动有限公司). ByteDance is headquartered in Beijing and incorporated in the Cayman Islands. The issue with ByteDance are the allegations that ByteDance answers to the Chinese Communist Party (CCP). Ownership by a Chinese company brings up national security concerns about data privacy, propaganda, cyberattacks, and disinformation from the CCP.
Whether or not the CCP already has collected TikTok data does not negate that the CCP could plausibly compel ByteDance to fork over TikTok data to the CCP. After all, modern-day China has a propensity towards surveillance, censorship, and overall cracking down on freedom. Plus, as the Right-leaning Heritage Foundation brings up in its report TikTok Generation: A CCP Official in Every Pocket, there are laws already in place that could make that possibility a reality. Furthermore, FBI Director Christopher Wray recently testified that TikTok "screams national security concerns."
It could explain why according to Pew Research, U.S. citizens favor a TikTok ban by nearly two to one. There might be a plausible case to disallow the use of TikTok for government officials and employees who guard state secrets or have Top Secret security clearances. After all, such government employees already have other restrictions on their lives due to the nature of their work. Outside of that notable exception, let me run through the reasons why a nationwide ban of TikTok would be highly problematic.
The first issue with banning TikTok is that it is unconstitutional. As Senator Rand Paul (R-KY) brings up in his op-ed, the First Amendment applies to speech whether you like it or not. The second is that a bill of attainder, which is a bill against a specific person or company, is prohibited under the Constitution (Article I, Section 9, Clause 3). Odds are that a TikTok ban would be overruled by the Supreme Court, especially since a federal court previously overruled former President Trump's TikTok ban.
In the event that a TikTok ban were to be upheld by the Supreme Court, it would have serious ramifications for the freedom of speech. It is not only that TikTok is used by 150 million U.S. users, 10 percent of adults in the U.S. receive their news from TikTok, or that a TikTok ban would be the largest impairment of freedom of speech in the United States. If the government could ban TikTok, it would set precedent for the federal government to control what apps and technologies that U.S. citizens could use to communicate.
What makes you think that this sort of oversight and regulation would ultimately be limited to TikTok? A TikTok ban is merely a pretense for more government power. That is not mere conjecture or fantasy. Take a look at this spot-on analysis from the Cato Institute on Congress' latest attempt at a power grab: the "Restricting the Emergence of Security Threats that Risk Information and Communications Technology" Act, also known as the RESTRICT Act. The power under the RESTRICT Act to define "adversary" nations and which companies could be subject to government restrictions would be a nightmare for freedom of speech and privacy protections. If the RESTRICT Act were to pass, China would not be the only potential threat to American citizens.
Do you really want the the federal government to have the power to restrict free speech, along with other rights, like that? It would make no sense for U.S. politicians to be so appalled by China's disregard for civil liberties while responding by emulating the CCP's behavior of suppressing freedom of speech and free enterprise. How does embracing government overreach and censorship show that the United States is the land of the free? You think we would have learned from the civil rights abuses from the Patriot Act, but here we are.
While we are on the topic of liberty, Americans should have the right and freedom to use the TikTok app. To quote the Foundation of Economic Education, "The government has no business telling people what apps they have on their phone. If individuals want to take the risk of exposing their data to the CCP, that should be their choice." If we are to maintain a free and open internet, individuals should take responsibility for their own data privacy. This would include reading privacy policies for given apps, using virtual private networks (VPNs), favoring apps that use encrypted messaging and other privacy features, or simply not using a smartphone to track you.
There has been a lot of postulating and handwringing about potential national security issues. Let's ask some questions about whether the government could come up with a national security justification for the ban:
- 71.2 percent of TikTok users are between the age of 18 and 34. If CCP were to get its hands on the data of the average TikTok user, especially given age demographics, how would that threaten national security?
- TikTok has a special-purpose subsidiary called TikTok U.S. Data Security that contracts with the company Oracle to store U.S. data. Is there proof that TikTok is actually sharing U.S. user data with the CCP, even in spite of the existence of this subsidiary? (Answer: not as of yet.)
- Why is there no evidence that the CCP has tampered with TikTok's content recommendation to disseminate CCP propaganda or disinformation?
- If TikTok were so pro-China that it was a puppet of the Chinese government, why is TikTok banned in China? Why do Chinese citizens have to use Douyin instead?
- If China were such a national security concern, why does the U.S. government still allow for the production of such consumer goods as smart appliances, pharmaceuticals, personal protective equipment, and computer chips to be consumed in the U.S.?
At this juncture, the national security harms of TikTok are conjectural. But let's forget for a moment that the national security concerns are not based on hard evidence or specific, concrete examples. TikTok colluding with the CCP on content acquisition is bad business. If TikTok were to facilitate pro-CCP tampering, it would be a public relations disaster for TikTok. They have a profit incentive to play by the free speech norms that are in the Western world, much like U.S. companies have had to comply with the Great Firewall of China if it wants to do business in China. The Chinese government also has a macroeconomic incentive for companies such as TikTok to be able to compete in the greater global market.
Finally, what good would a TikTok ban do? Bans can often be circumvented. If someone like Mayor Bloomberg tries to ban sodas greater than 16 ounces, you can buy two sodas under 16 ounces and consumer just as much, if not more, sugar. Illicit drugs could be purchased on the black market. A mass shooter could get around a high-capacity magazine ban by changing magazines or bringing multiple weapons. As for TikTok, users could circumvent the ban by purchasing a VPN and using TikTok that way. Given the number of TikTok users that exist, could you imagine the regulatory apparatus to monitor millions of smartphones and computers?
As the Brookings Institution points out in its analysis on why a TikTok ban will not guarantee consumer safety, "much of the information collected by TikTok is like that compiled by many companies that host consumer facing products." Also, the CCP already has the ability to buy demographic, health, geographic, and political data (as well as device identifiers, and face or voice prints) from private third-party data brokers. In short, if the CCP wanted those data, it can already get a hold of them.
None of this even gets into the economic impact that a TikTok ban would have on a variety of professions, including life coaches, influencers, and small business owners. Instead of focusing on banning TikTok, Congress should be asking itself how it can pass broad-based data privacy rules or laws. By asking ourselves how to enact laws that protect the data privacy of consumers and individual freedom, the U.S. government can protect our values and democracy while not taking the authoritarian path that the Chinese government uses to censor and limit freedom.
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