Can Congress Ban TikTok?

Americans love their TikTok videos, dances, and challenges. The social media platform has exploded and boasts over 100 million monthly TikTok users in the U.S.

However, there is growing concern among U.S. officials that the social media app has the potential to steal U.S. user data and use its algorithm to influence people with false or manipulated information. FBI Director Chris Wray warns that TikTok is a threat to national security because the Chinese government controls TikTok’s parent company and China is a government that “doesn’t share our values” and “they have the ability to collect data through it on users which can be used for traditional espionage operations.”

Then-President Donald Trump sought to ban TikTok in 2020 by issuing an executive order. That order was never enforced, and President Biden overturned the order when he took office but directed the Commerce Department to review apps tied with foreign governments for “unacceptable risks.”

Recently, Sen. Marco Rubio, R-Florida, introduced the ANTI-SOCIAL CCP Act (“Averting the National Threat of Internet Surveillance, Oppressive Censorship and Influence, and Algorithmic Learning by the Chinese Communist Party Act”). This act would effectively ban TikTok from operating in the U.S. The act also prohibits transactions from other social media companies with more than 1 million monthly users under the “substantial” influence of the governments of China, Russia, Iran, North Korea, Cuba, and Venezuela.

What About Freedom of Speech?

The First Amendment to the U.S. Constitution instructs that “Congress shall make no law …abridging the freedom of speech.” However, there are some laws that limit your freedom of speech.

While freedom of speech is a protected, fundamental right, lawmakers can reasonably place restrictions on the time, place, and manner of the speech.

The regulation must also be content-neutral and “narrowly tailored” for the government’s “significant interest.” Content-neutral means that the government can’t prohibit a type of speech or viewpoint. For example, Congress cannot pass a law banning people from saying, “I hate Congress.” However, the government can prohibit speech such as death threats to Congressional members because they have a substantial interest in protecting lawmakers.

Congress Can Ban TikTok on Government Devices

Congress can also prohibit speech for national security concerns. Because the parent company, ByteDance, owns TikTok and ByteDance is a Chinese company under Chinese government control, the Chinese government has the potential to access personal information, such as your location and browsing history, and control the content.

By law, all companies in China must share data with the Communist Chinese Party. Although a TikTok spokesperson claims that TikTok stores U.S. data in the U.S., Buzzfeed News reports that in 2022, China accessed user data.

So, for example, if you are using TikTok on your government device and have incriminating browser searches, the Chinese government could use that to blackmail you for government secrets. So the government can show that regulating the use of TikTok on government-owned devices protects a national security interest, and the regulation is narrowly tailored.

The Senate passed the No TikTok on Government Devices Act banning TikTok from U.S. government devices. This act prohibits federal employees from using TikTok on their government-issued devices. House Democrats and Republicans supported this act and added it to a government spending bill.

Currently, the U.S. Military, the State Department, and the Department of State restrict access to TikTok on government-owned devices.

And, citing cybersecurity risks, some states have banned TikTok apps from government devices. Texas Gov. Greg Abbott was the most recent governor to ban TikTok on state agency phones and computers. States with restrictions on state government devices are:

AlabamaArkansasIowaGeorgiaMarylandNebraskaNew HampshireNorth DakotaOklahomaSouth CarolinaSouth DakotaTexasUtahVirginia

Other states may follow suit. Recently Wisconsin Republican Congressional representatives called upon the Governor of Wisconsin to institute a ban.

Congress May Not Be Able to Ban Your TikTok

However, the government may not be able to regulate citizens’ free speech in the same way they can regulate government employees’ speech. The Supreme Court ruled in Pickering v. Board of Education that the government has different interests in regulating government employees’ speech than in regulating citizens’ speech.

The proposed ANTI-SOCIAL CCP Act may be too broad a restriction against free speech even though there is a compelling interest in protecting its citizens’ data privacy and China’s influence on U.S. citizens. About 25% of young Americans regularly get their news from TikTok.

But TikTok’s algorithms choose what content you see (that’s why you get so many cat videos). If China were to use TikTok’s algorithms, they could influence what information you get about voting and elections. The Supreme Court will balance any regulations between the security risks of such access to citizens against freezing their free speech.

Can Anything Else Be Done?

If the ANTI-SOCIAL CCP Act is passed and does not survive a court battle on First Amendment grounds, some state governments are going after TikTok for other illegal activities. Reuters reports that Indiana is suing TikTok, claiming they violate consumer protection laws for “not disclosing the Chinese government’s potential access to sensitive consumer information.”

Congress can attempt a narrower regulation, or the executive branch could issue an order in the interest of national security. However, it must be constitutional.

Related Resources:

Does the App TikTok Violate Child Privacy Laws? (FindLaw Law and Daily Life)TikTok Settles One Data Privacy Lawsuit, Still Faces Another (FindLaw Law and Daily Life)Can My Cellphone Data Be Used Against Me? (FindLaw Law and Daily Life)

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