CIVICUS speaks with Brendan Gilligan, a legal fellow at the Electronic Frontier Foundation’s (EFF) civil liberties team, about the US government’s initiative to ban TikTok or force its sale.
Established in 1990, EFF is a leading civil society organisation dedicated to defending civil liberties in the digital world. It champions user privacy, free expression and innovation through impact litigation, policy analysis, grassroots activism and technology development. Its mission is to ensure technology supports freedom, justice and innovation for all people of the world.
Why is the US government talking about banning TikTok?
We can only assess the government’s justifications for banning TikTok based on what government officials have said publicly. Those public justifications have shifted over time.
Earlier efforts to ban the application focused on data privacy concerns that TikTok poses to US users. To be sure, TikTok and other social media platforms collect too much information on US users. But the solution to this is comprehensive data privacy, not banning an application: TikTok is not unique from American social platforms when it comes to its data privacy practices. And while some have suggested TikTok differs because China could require the company to provide user data, the US government does much the same thing through authorities like Section 702 of the Foreign Intelligence Surveillance Act and National Security Letters. Indeed, the US government is currently opposing important data privacy protections in the current debate over renewing Section 702.
But in the current bill, the government seems to focus on the content users see on TikTok. For example, the House report on the bill cites adversary countries’ ability to ‘collect vast amounts of data on Americans, conduct espionage campaigns, and push misinformation, disinformation, and propaganda on the American public’. And the bill’s co-sponsors have discussed the ‘potential for this platform to be used for the propaganda purposes of the Chinese Communist Party’ and claimed that the platform promotes ‘drug paraphernalia, oversexualization of teenagers’ and ‘constant content about suicidal ideation’. And this poses major First Amendment issues.
Would a ban on TikTok violate freedom of expression?
While TikTok may be a relatively new social media platform, the First Amendment to the US Constitution is well-equipped to balance Americans’ freedom of expression rights with claimed national security needs. US courts have been developing this balance for over a hundred years. Indeed, most of the cases that form the basis of the modern First Amendment grow out war and national security.
The First Amendment requires the government to satisfy a very demanding standard to regulate speech based on its content, as the current TikTok legislation would. Laws that regulate speech based on its content are presumptively unconstitutional. A court will only uphold them if they are the least speech-restrictive way of addressing serious harms.
While the government has suggested TikTok poses vague national security risks, it has not yet publicly justified the need for the extreme measure of banning TikTok. It also has not contended with the well-established precedent that Americans have a First Amendment right to receive foreign propaganda. The American people deserve an explicit explanation of the immediate risks TikTok poses. And the First Amendment would require the government to justify this ban if the current legislation becomes law and is challenged in court.
What do you think would be the international repercussions of a ban?
Until now, the USA has championed the free flow of information around the world as a fundamental democratic principle and called out other nations when they have shut down internet access or banned social media apps and other online communications tools. In doing so, the US government has deemed restrictions on the free flow of information to be undemocratic.
For example, in 2021, the US State Department formally condemned a ban on Twitter by the government of Nigeria. As a department spokesperson wrote, ‘Unduly restricting the ability of Nigerians to report, gather, and disseminate opinions and information has no place in a democracy… Freedom of expression and access to information both online and offline are foundational to prosperous and secure democratic societies.’
Whether it’s in Nigeria, China, or the USA, we couldn’t agree more. Unfortunately, if the TikTok bill becomes law, the USA will lose much of its moral authority on this vital principle.
Civic space in the USA is rated ‘narrowed’ by the CIVICUS Monitor.
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