The TikTok ban debate revolves around the popular video-sharing application’s owner ByteDance. While TikTok gained popularity among U.S. users, the government banned the application on federal devices, as well as government-issued devices in some states, and a nationwide TikTok ban for non-government users is potentially imminent.
What is TikTok?
TikTok is a social media platform where users can create and share short videos featuring lip-syncing, acting, or comedy sketches. TikTok has become one of the most downloaded apps worldwide with a significant user base among U.S. teenagers, particularly girls. Its unique algorithm suggests personalized content on the “For You” page tailoring the user experience to individual preferences and subcultures.
U.S. federal and state governments targeted the application because it is owned by the Chinese corporation ByteDance. This ownership raises concerns about the Chinese government potentially accessing U.S. users’ data stored within its borders. Responding to these concerns, TikTok declared that they have long stored the U.S. users’ data in its center in Virginia and its backup storage in Singapore.
Overview of the attempts to ban TikTok in the U.S.
At the federal level, the campaign to ban the application gained momentum in 2020 when the Trump Administration issued an executive order prohibiting American app stores from listing TikTok. The implication of the order is a nation-wide ban of the applications on personal devices. Simultaneously, the Trump Administration ordered ByteDance to divest its U.S. operations and user data to American-owned entities . However, the enforcement of the 2020 Order came to an end after a court decision, which found a lack of statutory authority for the President to enforce the order.
The Biden Administration, in addition to proceeding with the execution of the Divestment Order from the previous administration, issued another order in 2022 to remove TikTok from the executive agencies’ IT systems and devices.
At the state level, efforts to ban TikTok continued. More than half of the U.S. states banned TikTok on government-issued devices. In May 2023, Montana became the first state to pass legislation prohibiting app stores from making TikTok available to users residing in the state. Despite facing lawsuits, Montana’s action sets a precedent for other states, including Texas, and the federal government to enact similar legislation. Consequently, a nationwide ban of TikTok on personal devices appears to be increasingly imminent.
Key topics in the TikTok bans debate
- National Security v. First Amendment
Proponents of the TikTok bans argue that TikTok’s data collection practices can expose classified government information and public officials’ personal data to the Chinese government that leaves individuals vulnerable to “blackmail or espionage.” They are concerned that the Chinese government could identify and exploit U.S. government employees. Further, those in favor of TikTok bans argue that the Chinese government could use TikTok’s user data to shape public opinion by moderating U.S. politics-related content on the platform, like their actions to block content related to the Hong Kong protests.
However, critics say that there is insufficient concrete evidence regarding threats to national security. Therefore, passing legislation banning TikTok is unconstitutional, similar to how a federal district court struck down the Trump Administration’s WeChat ban. They point out that the First Amendment protects freedom of speech and expression, which applies to both platforms of speech, like TikTok, and their users.
Like other U.S. platforms of speech, the First Amendment protects TikTok as a “separately incorporated organization within the U.S. from being a specific target for restrictions. Banning the platform without showing greater governmental interests would likely fail the intermediate scrutiny test, making the restriction unconstitutional.
For users, critics contend the personal device ban would violate the First Amendment as it limits individuals’ right to receive information and ideas from abroad. Furthermore, the ban would hinder user’s freedom to explore professional opportunities, as highlighted by content creators in their lawsuit against the 2020 Order. Addressing the Montana legislation, which imposes a TikTok ban on personal devices, the American Civil Liberties Union (ACLU) criticizes that the ban has “trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business.”
- Privacy of users in the U.S.
Additionally, the TikTok ban on personal devices concerns users’ privacy in the U.S. While TikTok collects a significant amount of user data—comparable to other social media platforms—the key difference is that TikTok’s data may travel to China. China has cyber laws (such as China’s Cybersecurity Law 2017), which provide the Chinese government with access to data held by businesses within the country. Fueling these concerns, investigations suggest that the storage of U.S. user data may be within China’s geographic limits. As a result, the government and several schools and universities in the U.S. ban the application to protect the privacy of their students.
Nonetheless, critics of TikTok bans argue there may be better alternatives to banning to protect the privacy of U.S. users. Legal scholars have contested outright bans of privacy-invasive technologies since the legislation “may quickly become irrelevant with the advent of a newer technology not covered by the law.” (See e.g., this law review article at 396).
Conclusion
Moving forward, critics of the ban suggest implementing comprehensive data privacy legislation that applies to not only TikTok but all social media platforms. The legislation should regulate data brokering practices, limit cross-border data transfers, and protect data of U.S. users when exported overseas.
