Banning TikTok Is Unconstitutional, Ludicrous, and a National Embarrassment

American politicians are yet again obsessed with banning one of the most popular websites in the country. If Congress and the Biden administration follow through with banning TikTok, they will be violating the free speech of millions of creators, hamstringing millions of small (and large) businesses, and cutting Americans off from interacting with people around the world on a social network that is increasingly the cultural and meme engine of the internet. More cynically, they will be pissing off millions of younger Americans to satiate China hawks.

Banning TikTok would also be one of the biggest acts of charity toward a monopolistic American company in recent memory. It is not clear that Americans are any less safe on TikTok than they are on Meta’s platforms, which we know have been manipulated by foreign adversaries, make teens feel awful about themselves, allow their users to be targeted by anyone willing to pay, and have been proven to be used by white supremacists, genocidal regimes, etc.

TikTok CEO Shou Chew is testifying to Congress on Thursday in an effort to convince lawmakers that they should not ban the popular social media app in the U.S. “We do not believe that a ban that hurts American small businesses, damages the country’s economy, silences the voices of over 150 million Americans, and reduces competition in an increasingly concentrated market is the solution to a solvable problem,” Chew states in the prepared testimony that he will read in front of Congress.

This is a CEO who is trying to protect his own platform, just as Mark Zuckerberg and other social media giants did after their platform was used for Russian disinformation in the leadup to the 2016 election, and after their platforms were called monopolistic.

But banning Facebook or Twitter was never on the table, and it shouldn’t be on the table for TikTok, either. In fact, Congress has utterly failed to even meaningfully regulate these companies even after reams of studies have demonstrated their harm.

Even if, ultimately, a conservative Supreme Court upheld a ban as the Federalist Society suggests they do, banning TikTok is a violation of the free speech of the platform’s millions of American users. The government would also single-handedly be cutting off the income streams of millions of creators, influencers, and small businesses who make their money or promote their businesses on TikTok.

The ACLU and the Electronic Frontier Foundation have both argued that banning TikTok would be unconstitutional, as have other civil liberty experts: “This vague and overbroad legislation would violate the First Amendment rights of millions of Americans who use TikTok to communicate, gather information, and express themselves daily,” the ACLU said last week.

Experts say that this ban will not survive constitutional challenge and is counterintuitive to the lawmakers’ goals. And if a ban is to be enacted, creators and businesses on TikTok say the effects will be devastating to their livelihoods.

“Even conceding the important government interest at stake, a national ban burdens far more speech than necessary to achieve that end. A flat ban prohibits all speech on the platform, only a small part of which could possibly constitute Chinese propaganda or generate useful intelligence for the Chinese government,” Dan Lyons, a Professor and Associate Dean at Boston College of Law, wrote.

“There are 100 million U.S. users on TikTok, some of them important influencers that have made this a big part of their identity and part of their self-expression, and banning it would have a severe impact on them. There is also freedom of communication. TikTok is a platform where people are communicating privately as well as publicly—this would be a direct infringement of the choices of those users,” Timothy H. Edgar, a former national security and intelligence official and a lecturer at Harvard Law School, told Harvard Law Today. “Typically, the U.S. government has protested when other countries ban U.S.-based apps or companies. So, if there’s a way to address our concerns about national security short of a ban, I would think that those are good reasons to at least consider that. We don’t want to be in the position of ‘do as we say, not as we do.’”

Since 2019, US lawmakers have been trying to ban the app, due to concerns that its Chinese parent company ByteDance must share information about users with the Chinese Communist Party (CCP) as any Chinese company’s communication network under The Chinese National Intelligence law must. Lawmakers claim that the Chinese government can use TikTok for espionage and propaganda on US users.

Yet, these claims lack evidence: There has not yet been any proof that the Chinese government has used TikTok’s data for intelligence purposes. There is plenty of proof, though, that TikTok has ascended at the same time as America’s homegrown apps (and the tech sector at large) have sharply declined. And, in the absence of real innovation or competitive advantage, the U.S. is now poised to give a leg up to Meta specifically.

Meta under Zuckerberg’s leadership has fallen from grace in recent years, with Facebook becoming a barren wasteland with a toxic public image and Instagram trying to hold onto relevance by ripping off TikTok with Reels. Reels, it should be noted, is nowhere near as popular as TikTok, and has been underwhelming by Facebook’s own estimation. Meanwhile, Meta’s monopoly is imploding before our eyes in large part to Zuckerberg’s absurd and ludicrously expensive bet on the metaverse.

There is no actual evidence that TikTok—which is seemingly moderated more strictly than Facebook, Instagram, or Twitter—is any more dangerous for Americans to use than any of Meta’s platforms. Meta’s products have been used to organize real-life protests in the United States set up by the Kremlin, used by the Russian government to attempt to incite a race war in the US, promote white supremacist rallies, interfere in elections, and incite genocide abroad. Facebook’s own internal data shows, by the way, that Instagram makes teen girls feel terrible about themselves.

This is not to say that TikTok is necessarily any better, it’s just that the risks of social media—and of foreign influence in it—exist no matter where the company running it is based.

The Center for Strategic and International Studies, which is focused on foreign relations and is not a group that is terribly sympathetic to the CCP, wrote that banning TikTok would be difficult to implement, could be unconstitutional, and would very likely not have much strategic benefit: “The national security risk of using TikTok is easily exaggerated,” James A. Lewis, the senior vice president and director of the Strategic Technologies Program at the Center for Strategic and International Studies, wrote. “Intelligence agencies routinely scrape social media to collect biographical information and do not need ownership of TikTok (or any other social media platform) to do this. The question is, how much more does China obtain by having access to TikTok data that is not publicly available? There is probably some benefit, but it is likely small.”

Daniel Lyons, an internet policy expert at the American Enterprise Institute—a centrist think tank—wrote “while some regulation of the platform’s data collection practices is presumably necessary to protect national interests, the First Amendment likely prohibits the government from completely banning TikTok nationwide.”

Banning TikTok would likely have a negligible impact on national security and harm thousands of businesses and entrepreneurs, but it would have the effect of boosting Meta’s prospects at a time when the U.S. government is engaged in a wide-ranging project to hinder China’s technological advancement and spreading influence while boosting American interests.

There’s an undeniable public relations element to pursuing a ban—or divestment from TikTok’s parent company, another option on the table—as Chinese President Xi Jinping brokers peace deals in the Middle East and backs Russia in Ukraine, while openly stating China’s ambitions to match the U.S.’s nuclear arsenal within years. Looking “soft” on China is most likely not an option for the Biden administration right now, no matter how nonsensical its target.

Trump’s administration first attempted to ban TikTok in 2020, but was stopped by federal courts, which ruled that TikTok was not enough of a risk to national security to outweigh the First Amendment right to free expression. The Biden administration has since picked up the effort and demanded that TikTok’s Chinese owners sell their shares or risk a nationwide ban. A bipartisan bill called the RESTRICT Act led by Senator Mark Warner (D-VA) would allow the government to ban TikTok and any other technology products that were made in countries that pose a threat to national security, including China, Russia, North Korea, and Iran.

The attempt to ban TikTok is only one of a number of bipartisan efforts the U.S. government has attempted in a crackdown on China’s tech industry. The Biden administration announced tighter restrictions on semiconductor exports to China in October and secured a deal with the Netherlands and Japan to join in. The Biden administration is also considering cutting off the Chinese telecommunications giant Huawei Technologies Co. from U.S. suppliers.

“It’s no secret that we are in a global—very heated global competition with China. And technology is at the crux of that competition,” Raimondo told CNN in an interview. “Right now, we are much too reliant upon Taiwan for leading edge chips. So, a big part of our strategy around being a global leader is investing in America: In our people, in our capacity to out innovate China and the rest of the world.”

If TikTok is banned, users could still gain access to the app through jailbreaking and the data that the U.S. government cites as a primary concern might not even be addressed with a ban. A Forbes investigation reported that TikTok continues to have access to user data even after the Indian government banned the app in 2020. A successful ban would be more for a show of U.S. power over China than anything else.

“Setting aside the political and legal obstacles, technology itself may make banning the app difficult to accomplish in practice. With so many users on TikTok, expect to see teenagers making the foolish decision to jailbreak their phones to get around the Apple Store and Google Play not allowing the apps to be downloaded through their respective operating systems,” Dunlap Bennett & Ludwig Law Firm wrote in a blog post.

Meta knows that TikTok is its biggest problem. In March 2022, the Washington Post reported that Meta orchestrated a nationwide campaign to turn the public against TikTok. They placed op-eds in major news outlets, prompted fake stories about TikTok trends that actually started on Facebook, and recruited political reporters and politicians to help take down its competitor. In January, Meta paid Buzzfeed millions of dollars to bring more creators to its social media platforms. Buzzfeed agreed to help generate creator content for Meta’s platforms and teach creators how to create viral content.

Many TikTokers have even been blaming Mark Zuckerberg for the renewed push to ban the app. In a number of viral TikTok videos, creators are sharing Zuckerberg’s past efforts to take down TikTok and declaring they will never go back to Meta’s apps.

“By now, I think we’ve all come to the same conclusion that this whole TikTok ban has nothing to do with our safety and everything to do with Meta can’t beat ‘em so let’s destroy ‘em,” TikTok user Fiona Williams said in a TikTok video that has over a hundred thousand views. “But what I don’t understand is where did Mark Fuckerberg think—that we would lose TikTok and flock to Instagram or god forbid Facebook?

No matter how many times Facebook and Instagram try to change their algorithms to copy TikTok’s, making Reels, discovery pages, and more, it seems that users are unwilling to give up TikTok as their favorite app. Kylie Jenner and Kim Kardashian even took to their Instagram stories to beg the app to “stop trying to be TikTok.”

Meanwhile, TikTok has been trying to negotiate with lawmakers, such as pushing for “Project Texas,” a $1.5 billion restructuring plan that would give the U.S. government leverage over TikTok’s American operations and allow American tech company, Oracle, to inspect its data and algorithms.

TikTok released a number of updated rules and guidelines in anticipation of the Thursday hearing, mainly related to AI and misinformation. For example, it has restricted deepfakes that depicted the likeness of any real figures and won’t allow material that has been edited to mislead users about real-world events. In Chew’s testimony, he also said that Tiktok is committed to safety, protecting U.S. user data from unauthorized foreign access, free expression, and transparency.

Despite all of these clear, reasonable arguments, and attempts to bend over backward to appease the Biden administration, it seems likely that TikTok may have to at least divest from its Chinese ownership. This shows that America is not only in decline and unable to compete on fair footing with other nations, but also, afraid.

Correction: An earlier version of this story identified the bipartisan RESTRICT Act as being Republican-led when it is in fact being led by Democratic Senator Mark Warner. Motherboard regrets the error.