Free Speech vs. National Security in Proposed TikTok Ban

By Peter White

With a billion users worldwide and 150 million in the U.S., Chinese owned social media giant TikTok is facing a possible ban here amid growing concerns around data privacy and rising geopolitical tensions with Beijing.

Opponents of the ban say it ignores wider data concerns around social media and potentially raises serious first amendment issues.

“I have seen the activities of the Communist Party in China. They are ferocious,” says Mark Warner (D-VA), who recently introduced the RESTRICT Act, which would put limits on foreign owned digital communications channels like TikTok, whose parent-company ByteDance is based in Beijing.

Warner, who is chair of the Senate Intelligence Committee, says that Chinese engineers have access to the data of millions of American users and worries the CCP could use that data as part of misinformation and propaganda campaigns, or even to blackmail Americans.

“They know your likes… it is a very real, tangible threat. We shouldn’t have to wait till it plays out to take it off,” Warner told reporters at an Ethnic Media Services news briefing last week.

Warner is a defense hawk who co-founded Nextel and has invested in hundreds of start-up technology companies. “I strongly believe in the positive power of technology. I also acknowledge that there’s a lot of creative things on TikTok… and there is a whole new group of people who make their income off of that, and I think that is a good thing,” he said.

TikTok’s Chinese ownership

But Warner contends the difference between TikTok and Facebook or YouTube – which have also come under fire around issues of data privacy – is the former’s Chinese ownership. Under a 2017 law, Chinese tech companies have “to turn over everything” to the Chinese Communist Party (CCP).

Warner says China is stealing $500 billion dollars a year of intellectual property directly or indirectly. He adds Chinese entrepreneurs reverse engineer American social media platforms, improve them and gain a competitive advantage. There is no evidence that TikTok did that, however.

Hoping to forestall a TikTok ban, ByteDance CEO Shou Chew – who is Singaporean – recently testified before members of Congress. He told the House Energy and Commerce Committee that TikTok doesn’t share user data with the Chinese government. He outlined a plan to store American user data in the U.S. He said American user data is currently stored on Oracle servers to which CCP has no access.

Chew also said TikTok doesn’t carry political ads like other social media platforms and he said the company doesn’t sell data to brokers. Chew said TikTok doesn’t collect any more user data than U.S. social media companies do.

Misinformation and propaganda

With one third of the U.S. population hooked on TikTok, the Biden administration worries that it could be used to spread misinformation to American users and influence U.S. elections like Russian hackers did in the 2016 presidential election. CNN reported that federal officials are demanding TikTok’s Chinese owners sell their stake in the company or face a U.S. ban of the app. During last month’s hearing several congressmen made clear they wanted to see the app banned.

BuzzFeed has reported that ByteDance employees based in China repeatedly accessed data of one U.S. reporter to figure out where she was getting her information. Subsequently, the company fired four employees. But there has been scant evidence that TikTok routinely mishandles data or manipulates videos.

The RESTRICT Act applies to six “foreign adversaries” (China, Cuba, Iran, North Korea, Russia, and Venezuela), and could be expanded to other countries. While it’s popularly known as the TikTok ban, it can be applied to other companies like Huawei or Kaspersky, which are headquartered in China and Russia. Warner has specifically identified those companies as two of the bill’s primary targets.

National security concerns may be a cover for U.S. anger over unfair business practices by China restricting foreign competition. TikTok isn’t available in China. Chinese citizens use Douyin, another ByteDance platform. Facebook,Twitter and YouTube are banned in China.

Protecting the First Amendment

Kate Ruane says two wrongs don’t make a right. “A ban on TikTok would give rise to significant First Amendment concerns,” she said.

Formerly a Senior Advisor for the First Amendment and Consumer Privacy at the American Civil Liberties Union, Ruane is currently Director of U.S. Free Expression Programs at PEN America.

“For citizens, and particularly the tens of millions of young Americans who use TikTok, to witness a popular social media platform summarily shut down by the government will raise serious questions in the minds of a rising generation about the sanctity of free speech in this country,” Ruane said.

She noted the U.S. condemned Nigeria for banning Twitter in June 2021; it criticized Russia for shutting down independent media in 2022; when mass protests erupted in Iran after the killing of Mahsa Amini, the U.S. strongly condemned the Iranian regime and called on them to refrain from the “blocking or filtering of services.”

“If the U.S. were to now approve wholesale banning as a means of redressing its security concerns about digital platforms, other governments will follow suit, insisting that their own security concerns are equally pressing,” she said.

Pen America favors a different approach: a robust privacy bill could address concerns not just on Tiktok but across multiple social media platforms. Ruane says the U.S. has been negotiating with TikTok. “We see no reason that process should not continue and produce a binding agreement,” Ruane said.

Rising anti-Chinese sentiment

John Yang, President and Executive Director of Asian Americans Advancing Justice (AAJC), noted the RESTRICT Act is aimed at the authoritarian regime in Communist China but said Asian Americans could become targets of anti-Chinese sentiment here in the U.S.

“A lot of Chinese Americans come to this country, frankly, because they want to escape the Chinese authoritarian regime in Communist China,” Yang said.

He says the lawmakers who promote the false narrative that everything Chinese is threatening and connected to actions by the Chinese government are not helping. “It is our community that often pays the price for their reckless rhetoric.”

Congress was so hostile towards the TikTok CEO that lawmakers missed a chance to talk about legitimate concerns around privacy and misuse of user data on the part of social media apps in general. “The conversation should begin and end with how to keep consumers safe and protect their privacy on any app, not just Tik Tok,” Yang said.