Can TikTok really be banned, as many politicians are now proposing? And what would be lost or gained by a prohibition of the wildly popular video-sharing platform which is used by millions of Americans and billions of people worldwide?
For some answers, Grid turned to David Greene, an attorney with the Electronic Frontier Foundation, a San Francisco nonprofit that promotes online users rights and supported a court challenge to efforts by the Trump administration to shut down TikTok. That effort ultimately floundered. The latest government threat to the social media behemoth comes from a bipartisan bill that gives President Joe Biden the power to ban TikTok, although so far the methodology of any ban is unclear.
It could mean stopping app stores from distributing downloads. It could mean forcing the sale of TikTok to a domestic company. The latest idea surfaced Wednesday from the Committee on Foreign Investment in the United States: force Chinese owners to divest their shares in TikTok. But according to experts, none of these approaches would do away with the app itself. And it beggars the imagination to think that the government would demand that everyone with TikTok on their phones simply stop using it.
Underpinning the regulatory zeal is the presumption that the Chinese-owned company ByteDance, which owns TikTok, would supply user data to the Chinese government or is already doing so. U.S. and European officials have cited national security risks, but so far, as Greene points out, the specifics of that risk have been kept from the public. So we dont know what the Chinese might be looking for or would get from users accounts. Greene and other First Amendment champions are quick to point out that the U.S. government must show a compelling interest to limit free speech as enjoyed by TikTok users, whether they are posting videos of their favorite Friday night outfits or engaging in political advocacy.
This interview has been edited for length and clarity.
Grid: Lets assume that TikTok goes away. Beyond the First Amendment concerns, what do you feel would be lost in terms of users rights and the whole cultural experience that it is brought to the country, particularly young people?
David Greene: TikTok is a major social influence at this particular moment. So its loss would be significant. Im not saying we would never recover; it hardly existed a few years ago. Its used by students. Its used by journalists, especially student journalists, quite broadly. It has academic uses. So it has very quickly become very embedded in our society.
G: Its so-called influencers can drive trends and commerce. TikTok content can be both serious and frivolous. User videos show everything from cute chipmunks, to gum-smacking and lip-syncing teens, to kids who change their outfits five times in one brief video. Beyond that, how would cultural exchange suffer?
DG: Any communications tool that allows people to reach a broad audience around the world, with very little technical skill and very little financial investment, is going to have an impact. There is also a great thirst for cultural exchange for organizing, for advocacy, around rights and around interests, or efforts at democratizing. So as weve seen with every social media platform that gains wide acceptance, these are very beneficial uses and effects that you would expect with people who very easily communicate and spread their ideas and identify community around the world.
G: Lets say the Chinese are hoovering up all this stuff. What is the value to anybody? Or is it a matter of getting embedded data that we dont even know about?
DG: Well, we dont know what the data will be useful for. But it could be a lot of things: Peoples social media habits tell a lot about their interests, and who they associate with, what things theyre likely to buy, what things are likely to catch their attention all of which can be beneficial for companies in terms of directing advertising and finding people were also recommending other content. And you can see how that could be useful to foreign actors, especially if they were trying to influence public opinion and want to make sure that certain people receive certain messages.
G: But TikTok users and other social media users are voluntarily giving this information away. So should the government do more regulation to prevent data mining by all social media companies?
DG: I dont want to downplay the importance of data privacy with respect to governance. Privacy is a human right, and people have a right to autonomy over their private information. I take that part of it very seriously. That being said, each person also has the role of threat modeling; they can determine to what extent, if they have enough knowledge about how their data is used, whether the threat that using the app poses is something thats acceptable for them. For many, many people, it might be a completely reasonable decision to say, you know, I understand that my data is being sucked up and it may end up in the hands of the Chinese government or might end at the hands of other governments. Others would say, I dont want to see it happen.
The important thing is giving them the autonomy to make that choice. And thats why if the government is really concerned about this, it should look at data privacy more broadly and enact more comprehensive data-privacy regulation that would restrict how all companies, not just TikTok, collect and retain and use user data. And so far, in Congress there seems to be bipartisan support for banning TikTok. And then not a lot of support for that type of comprehensive data privacy regulation
G: How could TikTok be effectively banned?
DG: I think the answer is, it depends on what the ban is. But if there were a total ban one of the things commonly discussed is banning the app stores from selling the app I think that would be making it less safe for users to use than more safe. One thing is that apps automatically set updates; if there are user privacy and data privacy vulnerabilities in the app, the company would correct that. Users who already had it on their devices get those updates.
The second thing that pretty likely happens is called using the side door. People will just find a way to install it from a website or otherwise not through the app store. And then you get the same problem that if there are security updates, they wont automatically get to the phones of those people. So you end up with a less-secure service, not a more-secure service. Another thing that could happen is just make it illegal to possess it. And I certainly dont see arresting people who have TikTok on their phone.
G: What else is possible?
DG: One other thing would be to force the sale of the company to U.S. interests. That doesnt necessarily solve data privacy problems, either, although maybe conceivably, it would address issues about closed or open channels with the Chinese government. It could potentially close that. But it doesnt actually mean that youre denying the Chinese government access to user data. So its very hard to see what a ban contributes. And obviously, when youre forcing a sale, that raises a lot of other issues. So it is hard to see exactly how you are putting in a ban.
G: I was talking to another First Amendment lawyer who said, roughly, this is all a publicity stunt by politicians. Would you agree with that?
DG: You know, I dont guess what peoples motives are for doing it. The way I see this is that the First Amendment does require that if youre going to say that U.S. people cant communicate with each other in a certain way, then that restriction, no matter what form it takes if its a ban on the app stores or making it illegal for the company to operate or a decision by Congress that they need to divest from foreign ownership whatever form it takes, that decision is going to have to satisfy First Amendment scrutiny. But no matter what level of scrutiny, the government is going to have to show that theres a real problem that they are trying to address and that this is an appropriately narrow approach. It has to be a real problem and not just be a suspicion or concern. Is this just political theater or is it xenophobia against all things China? Is it to score political points? We have to know what the basis for the restriction is.
G: One congressman described TikTok as a weather balloon into your phone. In other words, spyware.
DG: We dont know, right? We as American consumers dont know. Congress may know; they get a lot more information about spying and national security things. But you would think if they do know something theyd actually tell us instead of just dancing around it. But anyway, we do know theres a pretty legitimate concern for not just TikTok but the way all companies collect user data, and share it both among each other and in commerce, as well as it being available to governments. And this is a serious concern. There are a lot of things that you point to that a lot of social media apps and things we put on our phones could look like spy balloons.
G: The primary point people often jump on is the First Amendment concern, like you said, restricting speech of Americans. And you said theres a strict scrutiny of that. So how does that get resolved in a court?
DG: Presumably, what would happen is that TikTok itself or users would sue to invalidate the law. And some of these laws arent specific to TikTok for example the Restrict Act [the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act] creates a process thats not limited to TikTok. But whoever is subject to the law would come in and sue. Its true that what they could come in and say is, Look, we have a really, really serious important governmental interest. They could say, Look, theres a real interest, but we cant explain in open court because of national security concerns. They will likely be able to then submit their recommendation to the judge. So the judge can see it even if other parties dont get it or the general public.
G: Do you use TikTok?
DG: I havent actually been on TikTok myself. I dont have an account. Ive seen TikTok videos posted in other places. Theres a lot of things that are funny. There are things that are very political. There are some things I think are stupid and uninteresting to me. As far as I can tell, it has the full range of content.
G: How old are you?
DG: Fifty-eight. But I also want to say the trend with a lot of technology in general is that young people tend to adopt it and drive it into popularity. My choice not to download the app I dont know how much has to do with my age; I certainly know plenty of people my age and older than me who are on TikTok. Its just my personal choice to limit the social media that I spend time on.
G: So once the olds start using it, maybe it will just go away?
DG: If they always see my parents are on it, my grandparents, my third-grade teachers on it, they stop using it or at least stop using it in the way they did before and they find a platform where their peers are on it and people who they dont mind sharing different information with. Thats the trend weve seen with many services.
Thanks to Lillian Barkley for copy editing this article.
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