Saturday, June 15, 2024

TikTok Ban Sparks Lawsuit Pitting National Security Concerns Against First Amendment Rights

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TikTok has sued the U.S. government, accusing it of trampling on its First Amendment rights when legislation was signed into law forcing its Chinese parent company to sell the social media platform or face a national ban.

The lawsuit, filed in federal court for the District of Columbia on Tuesday, marks the most momentous challenge to the government’s forceful rebuke of a Chinese firm’s ownership of the leading video-sharing app in America alleged to hoover up troves of data. It sets up what’s expected to be a lengthy legal battle that may land at the U.S. Supreme Court pitting national security concerns against free speech protections for the company and millions of users.

If upheld, TikTok says the law will allow the government to “circumvent the First Amendment by invoking national security,” with the aim of cornering websites or publishers into selling to “avoid being shut down.” It calls the ban “obviously unconstitutional” and warns the divestiture demanded by the legislation to continue operating in the U.S. is “simply not possible: not commercially, not technologically, not legally.”

Government officials and lawmakers have repeatedly said TikTok, which is owned by the Chinese internet company ByteDance, poses a national security threat. Thus far, they’ve offered no evidence that TikTok has provided user data to the Chinese government or that it’s been directed to influence the content users see on the platform. Amid years of congressional infighting to ban the app, lawmakers have failed to pass comprehensive data privacy legislation that would protect all users from companies that indiscriminately amass all kinds of personal information on consumers.

In a statement, the company said, “Today we filed a petition in federal court seeking to overturn the unconstitutional TikTok ban.”

Under the law, TikTok has roughly nine months to divest from ByteDance. It allows President Joe Biden to extend the window by an additional 90 days if “significant progress” has been made toward a sale. If the Chinese company cannot or refuses to sell, web-hosting services and mobile app stores would be barred from carrying the app, which amounts to an effective national ban.

With more than 150 million American monthly active users, the app has been integrated into American culture to an extraordinary degree. It’s by far the leading video-sharing app in America in terms of attracting and holding users’ attention.

By banning all TikTok offerings and ByteDance subsidiaries, the lawsuit claims Congress effectively enacted a law “curtailing massive amounts of protected speech.” Unlike broadcast TV and radio statements, which require licenses to operate because they use public airwaves, the government can’t dictate the ownership of websites, newspapers and online platforms, among other privately-created speech forums, according to the complaint.

TikTok stresses its function as a source of news. Its algorithm recommending or blocking certain news items to users constitutes the “exercise of editorial control and judgment” protected under the First Amendment, it says.

The lawsuit also argues its own speech is being suppressed. The company points to its use of the platform to create and share content about issues and current events, including its support for small businesses, literacy and education. 

In response to national security concerns, the company partnered with Oracle to move its data on users stored on foreign servers to Texas, essentially firewalling the data the Chinese government could collect. The initiative, called Project Texas, includes audits of its algorithms and creating a subsidiary called TikTok U.S. Data Security to oversee content moderation policies and approve editorial decisions. American employees will report to an independent board of directors.

The lawsuit says the company agreed to a kill switch or “shut-down option” that gave the government the authority to suspend operations in the U.S. if it violated certain obligations under the agreement.

National security and censorship concerns allegedly posed by TikTok aren’t unique to the company. Meta’s Facebook was used to incite an insurrection at the U.S. Capitol after data from the app was weaponized in 2016 to influence the presidential election in the so-called Cambridge Analytica scandal. YouTube’s rules have been manipulated to silence Kazakh dissidents and human rights observers in China.

TikTok takes issue with Congress’ refusal to enact industry-wide regulations and instead “single out” the company. Rather than ban the app, it says the government could’ve passed a data protection law governing transfers of Americans’ user data to foreign countries. Other alternatives included a model similar to the European Union’s Digital Services Act, which requires certain platforms to make disclosures about their content-moderation policies and to provide regulators and researchers with access to their data to assess whether they’re promoting or suppressing content with particular viewpoints, according to the lawsuit.

“Congress did not even provide Petitioners with the process and fact-finding protections that the Act extends to all other companies — protections which themselves likely fall short of what the Constitution mandates,” the complaint states.

TikTok alleges violations of its First Amendment and Equal Protection rights, as well unconstitutional bill of attainder, which allows the government to declare a party culpable of a crime without a trial, and taking.

In a statement, Knight First Amendment Institute executive director Jameel Jaffer said the ban will be blocked. She added, “The fact that some legislators have acknowledged that the ban was motivated by a desire to suppress content about the Israel-Gaza conflict will make the law especially difficult for the government to defend.”

On Monday, the organization filed a friend-of-the-court brief in support of TikTok’s challenge to Montana’s ban. It argued that the First Amendment protects Americans’ rights to access foreign media, information and ideas.

Direct challenges to government actions at the TikTok lawsuit’s scale are few and far in between. Some courts have expressed skepticism at alleged national security concerns invoked by the government in the absence of direct evidence of potential harm. In New York Times Co. v. United States, a federal judge found that the publication could publish the then-classified Pentagon Papers, which detailed America’s political and military involvement in Vietnam, without censorship or punishment from the government. The court concluded that “the word ‘security’ is a broad, vague generatality whose contours should not be invoked to abrogate the fundamental law embodied by the First Amendment.”

In another case finding that free speech rights aren’t subordinate to national security concerns, the U.S. Supreme Court rejected a law delaying mail that contained communist political proganda. The upshot of that ruling was that Americans are within their rights to consume foreign propaganda.

Other courts have deferred to the government when national security is at stake. In 2020, the government helped convince a federal appeals court to overturn a ruling against Qualcomm that would’ve forced it to overhaul its licensing business for violating antitrust laws. A three-judge panel of the 9th U.S. Circuit Court of Appeals preserved Qualcomm’s monopoly in the mobile chip market, finding the company has no duty to license its patents to rivals.

In that case, the Department of Justice stepped in at the eleventh hour to oppose the FTC on the grounds that any fix weakening Qualcomm’s position in the burgeoning 5G market threatened national security since it competes against Huawei, a Chinese-owned firm that sells smartphones and other gear that make up the backbone of the telecom network. The intervention by prosecutors directly undercut regulators’ most momentous enforcement victory in decades.

“China would likely compete robustly to fill any void left by Qualcomm should Qualcomm’s ability to invest and innovate be diminished,” stated Ellen Lord, then the under secretary of defense, in a court declaration. “Participation and leadership in 5G standard setting is a zero-sum game — if the United States does not lead, an aggressive, eager China will set standards to accommodate its own wishes.”

Antitrust concerns also come into play with the proposed sale of TikTok. With a price tag in the billions of dollars, the only firms that can afford to buy the company would likely present competition issues to  regulators. The Federal Trade Commission or Department of Justice would almost certainly sue to block any social media firm that buys TikTok.

Other concerns with the law include the creation of a mechanism by which the White House can target other entities deemed to be a national security threat. In those instances, the president is required to issue a report describing the specific concerns justifying the ban. Some critics have posited that foreign news sites, such as The Guardian or Qatari-funded Al Jazeera, could be targeted by future administrations.

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