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Free speech experts skeptical that TikTok ban will survive constitutional challenge: NPR

TikTok sued the Biden administration in response to a new law banning the video app in the United States unless it is sold within the next 12 months.

Michael Dwyer/AP

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Michael Dwyer/AP

TikTok sued the Biden administration in response to a new law banning the video app in the United States unless it is sold within the next 12 months.

Michael Dwyer/AP

Forcing TikTok to shut down its U.S. operations for unspecified national security reasons would violate the First Amendment, according to six legal experts interviewed by NPR.

TikTok last week filed a legal challenge against the Biden administration over a law that would ban the video app unless it completely divests from its China-based parent company, ByteDance, within 12 month.

Lawmakers and the White House have justified the crackdown on TikTok by saying the app’s connection to Beijing made it a national security threat. But proponents of a ban have provided no direct evidence that the Chinese government attempted to obtain data from the company, nor any evidence that Chinese authorities influenced content on the platform used by 170 million users. Americans.

NPR contacted a host of constitutional law scholars, and the half-dozen people who responded all said the U.S. government forcing the shutdown of TikTok on vague national security grounds would most likely infringe on the former’s rights. amendment of the TikTokers.

Evelyn Douek, a professor at Stanford Law School who focuses on online speech, said First Amendment legal precedents make clear that the government cannot prohibit speech based on a hypothetical or potential threat for national security.

“The First Amendment places the burden on the government to demonstrate that the harm is real and that its response will actually mitigate that harm,” Douek said. “To date, the government has not met this bar in the public domain, at least when it comes to TikTok.”

The Justice Department did not return a request for comment.

TikTok’s ‘Project Texas’ Could Be a Major Problem

Legal experts said that in addition to proving that TikTok poses a security risk, U.S. authorities will need to prove in court that banning it was the least restrictive way to address the threat.

Most experts agree that a ban on TikTok will be considered under what is called “strict scrutiny,” meaning that free speech can only be restricted if there is a compelling government reason and that the solution is as narrow as possible.

Banning an entire social media platform, many have pointed out, seems like the opposite of a narrow solution.

“I find this particularly implausible in light of TikTok’s good faith efforts – the Texas Project – to address the government’s expressed fears,” said Ryan Calo, a professor at the University of Washington School of Law.

Calo is referring to a plan that TikTok says it spent $2 billion on that, with the help of Austin-based technology company Oracle, would create a firewall between U.S. user data and the company’s parent company. application based in Beijing.

TikTok officials presented Project Texas to national security officials in Washington, but the plan failed to assuage critics because it did not include a complete separation of TikTok from ByteDance.

Although TikTok made sweeping promises that Project Texas would sequester Americans’ data from the company’s Chinese headquarters, reports have indicated that data still flows between TikTok’s U.S. staff and those in China. On top of that, ByteDance still controls TikTok’s “secret sauce” algorithm, and ByteDance staff in China regularly work with the software updates that determine what millions of people see on the app every day.

For five years, TikTok has been in talks with the Committee on Foreign Investment in the United States, a committee led by the Treasury Department that reviews foreign investments for national security reasons. In their lawsuit, TikTok’s lawyers claim that the proposed plan included giving the United States a “shutdown option” that it could use if TikTok failed to meet its data security standards.

The government will have to demonstrate exactly how the Texas Project was an inadequate solution, said Calo of the University of Washington.

Douglas Laycock, a constitutional law expert at the University of Virginia, said the government would likely try to argue that it is a “content-neutral” regulation aimed at a company owned by a foreign adversary and which poses a threat to the national security of the United States. This is not a matter of censorship of speech.

Although the government will try to make its legal case on security issues rather than freedom of expression, it will be difficult to avoid constitutional implications, experts said.

“The First Amendment protects our ability to speak, freely associate and receive information, both from others here in the United States and from people abroad,” said the project’s Patrick Toomey National Security Policy of the ACLU.
“TikTok hosts a huge global community that the app’s creators and users in the United States wouldn’t be able to easily reach and interact with elsewhere online.”

Is the disengagement from ByteDance really feasible?

In its complaint, TikTok said divestment from ByteDance was “neither commercially, nor technologically, nor legally” possible.

One thing that would strengthen the government’s case, Laycock said, would be “to show that the sale of TikTok, with its algorithm, is entirely feasible,” he said, “and that any impediment to a sale This is a deliberate refusal by ByteDance to comply and sabotage the law. »

But it’s not just about the company’s resilience. Regulations in China would complicate, if not completely prevent, a sale of TikTok.

Any purchase of TikTok’s U.S. offices would require approval from the Chinese government, which opposes a forced sale. ByteDance said it was not interested in potential TikTok bidders.

And then there are questions about what would even be purchased, since China’s export control laws would prevent the sale of TikTok’s algorithm, which would mean someone would buy one of the most popular apps in the country. world without the technology that propelled its popularity.

The classified briefing occupies an important place

When former President Donald Trump attempted to shut down TikTok through an executive order, federal judges blocked it, in part because of a lack of evidence showing the app posed a security risk to the country. In Montana, a federal judge blocked a statewide ban from taking effect after saying the measure contained “a pervasive undertone of anti-Chinese sentiment.”

Before Congress added the ban to a foreign aid bill, lawmakers received a classified briefing on TikTok. Exactly what lawmakers heard hasn’t been publicly revealed, but it was enough to muster overwhelming bipartisan support to force TikTok to divest from ByteDance or face a nationwide shutdown.

“My reaction to this briefing is that TikTok is a gun pointed at Americans’ heads,” Connecticut Democratic Sen. Richard Blumenthal said after the session, adding: “The Chinese communists are weaponizing the information they constantly disseminate and surreptitiously”. collect from 170 million Americans and potentially direct that information, using it via algorithms, to the heart of American democracy. »

Laws in China would require ByteDance to respond to any requests for U.S. data, but TikTok said it was never asked for any information from the Chinese Community Party. Although ByteDance staff had access to US user data, there is no public evidence that Chinese government officials are attempting to obtain data on US citizens.

Legal experts agree that the case could hinge on the evidence the Justice Department brings to court, since the public campaign against TikTok has not cited any specific instances where the Chinese government attempted to use the app as a cyber- armed.

When asked what the most important unknown was in the case, Jameel Jaffer, who directs the Knight First Amendment Institute at Columbia University, replied: “The government’s so-called secret evidence.”

Other experts agreed.

“(It will depend) on the government’s ability to present some sort of exceptional evidence to justify this exceptional measure adopted through an exceptional procedure,” Stanford’s Douek said. “First Amendment law should not allow an entire vibrant speech platform to be shut down for something less.”

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