Congress knew banning TikTok was a First Amendment problem. It did so anyway

Congress knew full well back in March that U.S. TikTok users engage in constitutionally protected speech on the app, and that banning it is an inadequate way to protect Americans’ privacy, according to a previously classified transcript. Yet Congress and President Joe Biden banned TikTok in April anyway, choosing political expediency over the hard work of passing and enacting the comprehensive consumer privacy legislation this nation so desperately needs.  

The government submitted this partially redacted House Energy and Commerce Committee transcript Sept. 4 as part of the lawsuit over the federal TikTok ban; the U.S. Court of Appeals for the District of Columbia heard arguments in the case Sept. 16. The transcript shows lawmakers and law enforcement officials in a March 7 executive briefing recognized that Americans’ speech on TikTok is protected by the First Amendment — the same recognition a federal judge had made last November when it blocked Montana’s TikTok ban from going into effect.  

Lawmakers and officials didn’t make any particularly new points at the briefing about the dangers of TikTok, and repeatedly characterized their fears as hypothetical. The transcript is replete with references to the possibility of the Chinese government using TikTok to manipulate content that Americans see, perhaps to shape or alter their views on foreign and domestic issues.  

For example, a Justice Department official voiced concern that TikTok users’ public and private data could go to the Chinese government, which could use it in ways that could be harmful to tens of millions of young people who might later pursue careers in government, in human rights, or any field that could put them at odds with the Chinese government’s agenda.   

But there is no indication from this transcript’s unredacted portions that this is actually happening.  

Worse, this Justice Department official went on to express concern “with the narratives that are being consumed on the platform,” the Chinese government’s ability to influence those narratives, and the U.S. government’s preference for “responsible ownership” of the platform through divestiture.  

That’s essentially just another way of saying our government wants to shut down speech that it deems politically dangerous — and that’s not something the Constitution allows. 

Rep. Tim Walberg, R-MI, even suggested that “certain public policy organizations” that oppose the TikTok ban should be investigated for possible ties to ByteDance, TikTok’s parent company. Of course, the right to criticize the government's actions and policies — like an ill-conceived ban on a popular speech platform — is at the heart of First Amendment protections. 

Rather than grandstanding like this, Congress should spend its time considering the privacy and free speech arguments offered by the ban’s opponents. 

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First, the First Amendment should subject bans like this one to extraordinarily exacting judicial scrutiny, the finest judicial microscope there is, and one this law is unlikely to survive. This is true even with foreign propaganda, which Americans have a well-established First Amendment right to receive. And it’s ironic for the Justice Department to argue that banning an app that people use for self-expression — a human right — is necessary to advance human rights around the world. 

Second, if Congress wants to stop the Chinese government from potentially acquiring data about social media users, it should pass comprehensive consumer privacy legislation that regulates how all social media companies collect, process, store and sell Americans’ data.  

A strong federal law on data privacy must prohibit companies from targeting ads to a person based on their online behavior; must not preempt even stricter state laws; must ensure people have a private right of action to sue the corporations that violate their statutory privacy rights; must prohibit companies from processing a person’s data except as strictly necessary to provide whatever goods or services they asked for; and must prohibit companies from processing a person’s data without obtaining informed, voluntary, specific, opt-in consent. And if someone declines to waive their privacy rights, companies must be prohibited from refusing to do business with them, charging a higher price, or providing lower quality.  

Without such a data privacy law, foreign governments and adversaries can still acquire Americans’ data by stealing it, or by using a straw purchaser to buy it from the myriad data brokers who prey on our personal information every day.  

It’s especially jarring to read that a foreign government’s potential data collection supposedly justifies banning an app, given Congress’s recent renewal of an authority — Section 702 of the Foreign Intelligence Surveillance Act— under which the U.S. government itself collects massive amounts of Americans’ communications, a warrantless digital dragnet which the FBI immediately directed its agents to abuse yet again. 

It’s long past time for Congress to drop these square-peg, round-hole approaches to Americans’ privacy and online expression and instead pass comprehensive privacy legislation offering Americans genuine protection from the invasive abuses of our data.