TikTok Ban and First Amendment
TikTok
A estimated 170 million Americans have TikTok. Including me!
The threats to national security are very real – as the app collects personal data and spies on both users and non-users.
Threats to Non-Users Too
Not a user? They’re still able to collect your data. Per investigation published by Consumer Reports in October 2022, TikTok tracks Americans, even those who do not use the platform, across the internet by embedding a tracking technology (often called “pixels”) in partner websites.
…the transmission to TikTok of non-user IP addresses, a unique ID number, and information about what an individual is doing on a site provides a deep understanding of those individuals’ interests, behaviors, and other sensitive matters.
Even Americans who are NOT using TikTok are at risk of having their information stolen. This is deeply concerning.
Protecting Americans From Foreign Adversary Controlled Applications Act.
On the night of April 23, 2024, Joe Biden signed the HR 7521: Protecting Americans From Foreign Adversary Controlled Applications Act.
A copy of the text of this bill is attached to TikTok’s subsequent lawsuit (see TikTok Petition – Case No 24-1113 2024.05.07) filed on May 7, 2024 as “Exhibit A“.
The bill basically gives TikTok until the end of this year (initially 6 months, extended 9 months, up to a year) to find a U.S. buyer. If not, TikTok will face penalties of $5,000 per user to continue operating.(170 million users x $5,000 per user = $850 billion). Same applies to any distributors of TikTok (Apple or Google). It will be banned.
I highly recommend you read both the Bill and the TikTok lawsuit.
Let’s get this out of the way: The Forced Divestiture does NOT Violate the First Amendment
The First Amendment of the United States Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;
Government cannot ban speech. Period. This applies to hate speech. Hate speech is the entire reason for such protection! (No one wants to ban love speech!)
The government isn’t trying to ban speech here.
Can the Goverment Abridge Propaganda?
It’s not even about banning proganda, because that’s already been ruled upon. See United States Supreme Court ruled in Lamont v Postmaster General of U S.
In Lamont, the law at issue required the postmaster to detain “communist propapanda” sent through the mail, requiring the post office to send out cards asking for permission to be delivered.
The court held that law was unconstitutional.
Not a Ban
The real issue here is that it is NOT a ban: It’s a choice, China! You have a YEAR to sell your spyware to a U.S. company. If you refuse to sell (because your loyalty lies with the Chinese Community party), this proves the very reason for this law.
At a press conference, White House press secretary Karine Jean-Pierre said the Biden administration does not want to have to introduce a ban on TikTok, but rather seeks its divestment from its Chinese parent company, ByteDance. She said there are a “number of interested buyers” for the social media platform.
Not a ban. It is a divestment. Karine Jean-Pierre
Senator John Fetterman (D-Pa.) says of TikTok:
“They have an allegiance to the Chinese government, and that’s the issue here,” Mr. Fetterman said about the company, noting that TikTok would be fine “if they’re willing to free themselves from that.”
Nothing New Under the Sun: Grindr and PatientsLikeMe Forced to Divest
What is happening to TikTok already happened before to Grindr.
Per the Apple store, “Grindr is the world’s #1 free dating app serving the LGBTQ community. If you’re gay, bi, trans, queer, or even just curious, Grindr is the best and easiest way to meet new people for friendships, hookups, dates, and whatever else you’re looking for.”
In 2019, the Committee on Foreign Investment in the United States (CFIUS), mandated that the Beijing owner of Grindr, Kunlun Tech, sell the app after reports that user data could be abused, including private messages, and HIV status. Users could then be blackmailed for information.
The forced divesture succeeded: Kunlun Tech cut ties with the Chinese government, and sold Grindr to American investors. According to Wikipedia,: In March 2020, Kunlun announced that it would sell its 98.59% stake in Grindr to U.S.-based San Vicente Acquisition LLC for $608.5 million.[35]
Two years after completion of Grindr’s divestiture in 2020, it went public on the New York Stock Exchange and reaped 400% rise in stock price.
Grindr’s current value is $1.86 billion..
PatientsLikeMe was another company forced by CFIUS to divest.
TikTok Refuses to Sell
“ByteDance doesn’t have any plans to sell TikTok,” the company posted on its official account on Toutiao, a social media platform it owns.
Threat to National Security
The Committee on Foreign Investment in the United States (CFIUS) has been investigating Bytedance since 2017, when it purchased Musical.ly (which became TikTok).
The CFIUS is a 9-member agency tasked with investigating corporate deals with foreign counties for national security concerns. Read this letter to CFIUS sent by two Senators on opposite sides, Senator Richard Blumenthal (D-Conn.), Chair of the Senate Judiciary subcommittee on privacy, and Senator Jerry Moran (R-Kan.), member of the Senate Select Committee on Intelligenc.
Theletter was sent to Honorable Janet Yellen, Secretary of the Treasury and Chair of the Committee on Foreign Investment in the United States, documenting the many incidents, including this: ByteDance acknowledged that staff based in China an U.S. had spied on the private data of journalists and others in order to identify sources behind articles critical of the company, as confirmed by Forbes reporting.
Additionally, back in September, 2023, the State Department conducted and released a GLOBAL ENGAGEMENT CENTER SPECIAL REPORT. The Report’s Executive Summary reads:
Every country should have the ability to tell its story to the world. However, a nation’s narrative should be based on facts and rise and fall on its own merits. The PRC employs a variety of deceptive and coercive methods as it attempts to influence the international information environment. Beijing’s information manipulation spans the use of propaganda, disinformation, and censorship. Unchecked, the PRC’s efforts will reshape the global information landscape, creating biases and gaps that could even lead nations to make decisions that subordinate their economic and security interests to Beijing’s.
Read the entire report: How the People’s Republic of China Seeks to Reshape the Global Information Environment.
China Has a Different Version of TikTok – Does Now Allow the U.S. Version
Additionally, isn’t it strange that China does not allow its youth to access the same version of TikTok as the U.S?
Why do they allow TikTok to show this in America, whereas, in China, this same material is all banned? Geoffrey Cain, journalist and technologist
Read More: ‘Dark and Despairing’—How TikTok Exploits the Minds of American Teens _ The Epoch Times
What Constitutes a Threat to National Security per CFIUS?
Per this Washington Blade article, Cooley LLP, an international law firm with attorneys who practice in the CFIUS space, notes that the committee uses a “three-part conceptual framework” to assess national security threats:
- What is the threat presented by the foreign person’s intent and capabilities to harm U.S. national security?
2.What aspects of the U.S. business present vulnerabilities to national security?
3. What would the consequences for U.S. national security be if the foreign person were to exploit the identified vulnerabilities?
The firm writes that “issues that have raised perceived national security risks range from the obvious (e.g., foreign acquisitions of U.S. businesses with federal defense contracts) to the seemingly benign (e.g., foreign minority investments in offshore wind farm projects or online dating apps.)
Cooley additionally notes that CFIUS considers vulnerabilities such as “whether the U.S. business deals in ‘critical technology,’ ‘critical infrastructure’ or ‘sensitive personal data’” and threats such as “the foreign buyer’s/investor’s track record of complying with U.S. and international laws (e.g., export controls, sanctions and anti-corruption regimes.)”
Specifically, What Threats?
This article, by the The Committee on Energy and Commerce, sheds light.
Here’s a few top things to know:
Applications controlled by foreign adversaries, like TikTok, are exploiting and weaponizing Americans’ data. These applications are a national security threat to the American people.
- The CCP requires companies, like TikTok’s parent company ByteDance, to secretly share access to a U.S. business or individual’s data without their knowledge or consent.
- Internal TikTok recordings revealed “everything is seen in China.”
- CCP-controlled ByteDance used TikTok to spy on American journalists’ physical locations.
- A former TikTok Executive has stated the CCP “maintained supreme access” to TikTok’s data.
Unclean Hands, Tiktok is Hypocritical
I love and defend the Constitution.
I do not believe the Bill, which affords a YEAR to divest, is violative of First Amendment freedom of speech. There is a national security concern, both in terms of protecting our nation from nefarious attacks from the government, as well as protecting our youth.
Furthermore, TikTok is absolutely hypocrital for crying “free speech!”.
The platform itself does not allow “free speech”. TikTok has censored and removed many of my videos, such as this one:
Gender Detransitioner Chloe Cole Congressional testimony against SB 107. (You can find it on Instagram).
In addition to removal of detransition videos, TikTok has not only removed videos of Live Action, it went so far as to BAN Lila Rose, content creator.
View this post on Instagram
This is insane and ridiculous censorship. The harms of birth control are well documented and the fact that TikTok is DELETING content criticizing birth control should concern everyone. https://t.co/O6mm5JHUtI
— Lila Rose (@LilaGraceRose) March 25, 2024
I was one of the first lawyers on the platform. I downloaded TikTok in 2019, and posted approximately 850 videos during COVID.
At one time, I had almost 500,000 followers. But then TikTok started removing and banning my videos.
It’s hypocrital that TikTok is filing a lawsuit to challenge this law based on First Amendment violations.
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