A Sense of Doubt blog post #3355 - The Fight Over Tik-Tok is Unconstitutional and Lacks Due Process
I do not use Tik Tok and have no plans to download the app and start using it.
Tik Tok is not going anywhere.
FROM THE FUTURE PARTY NEWSLETTER
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A TikTok ban would crater the creator economy | ||
The Future. With President Biden signing the bill that forces ByteDance to either sell TikTok or face a ban in the US, the creator economy is reckoning with what life would look like without the platform. In short, it would be radically different. TikTok said that it would fight the legislation tooth and nail, but a ban would likely give Instagram a major surge in engagement. We imagine that Zuck is already popping champagne bottles. | ||
Crisis countdown | ||
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Additionally, 33% of American adults now report having used TikTok, which shows that the user base is starting to age up and that more brands and businesses are using the platform to expand their reach. | ||
If TikTok goes, so might their virality. |
https://reason.com/2024/04/22/tiktok-measure-passed-by-house-is-unconstitutional-in-multiple-ways/
TikTok Measure Passed by House Is Unconstitutional in Multiple Ways
Tick Tock for TikTok
Is TikTok's time finally up? On Saturday, the House of Representatives passed a measure that would require a change in the app's ownership or ban it if that doesn't happen.
Called the Protecting Americans from Foreign Adversary Controlled Applications Act, it's essentially the same divestiture-or-ban bill I wrote about in this newsletter back in March, now tucked into a larger bill (H.R. 8038, the insanely named 21st Century Peace through Strength Act) that deals with everything from fentanyl trafficking to Russian sanctions, Iranian petroleum, Hamas, and boatloads of foreign aid.
The most talked-about part of the Protecting Americans from Foreign Adversary Controlled Applications Act would ban TikTok unless it completely breaks ties with its Chinese parent-company, ByteDance, within 270 days.
But the bill goes far beyond TikTok, and could be used to justify a ban on all sorts of popular apps tied to China, Russia, Iran, or any other country that gets deemed a foreign adversary.
Specifically, the bill makes it illegal "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application." And the bill's definition of "foreign adversary controlled application" is really broad.
It specifically defines TikTok, ByteDance, and subsidiaries or successors thereof as foreign adversary controlled applications.
The definition would also apply to an array of websites, apps, and "augmented or immersive technology" (with a focus on large social media entities), if they are headquartered in, principally based in, or organized under the laws of a foreign adversary country or if any person or entity with at least a 20 percent stake is based there.
And it would grant the president broad power to determine who meets this bill, opening the measure up for all sorts of potential abuse.
There are multiple ways in which this legislation likely violates the Constitution.
The most obvious constitutional problem is the First Amendment. The bill suppresses the free speech rights of Americans who post to TikTok and of those who consume TIkTok content.
It may also amount to a bill of attainder—a law punishing a specific person or entity, without a trial—and those are unconstitutional.
And it may also violate the 5th Amendment, as Sen. Rand Paul (R–Ky.) noted in a Reason article last week.
Paul thinks the Supreme Court "will ultimately rule it unconstitutional because it would violate the First Amendment rights of over 100 million Americans who use TikTok to express themselves," and "rule that the forced sale violates the Fifth Amendment. Under the Constitution, the government cannot take your property without accusing and convicting you of a crime—in short, without due process. Since Americans are part of TikTok's ownership, they will eventually get their day in court."
Paul's point brings up an important—and often overlooked—factor in all of this: No one has produced evidence of any specific legal infractions committed by TikTok, let alone proven such offenses took place. There's a ton of speculation about what TikTok could be doing, but that's it. A lot of people seem sure that TikTok is a tool of the Chinese Communist Party and you're a fool if you think otherwise. And maybe it is! But that still doesn't mean we can simply sanction the company with no due process, as Paul points out.
Speculation about what the app's ties to China mean may be a good reason for certain people to approach TikTok with caution. But they cannot justify legal action against TikTok.
China's Retribution
Plus: Homework liberation in Poland, Orthodox rabbi tells students to flee Columbia, toddler anarchy, and more...
Banning TikTok for real this time: On Saturday, the House passed bills that will send large sums of aid to Israel ($26 billion), Ukraine ($60 billion), and Taiwan ($8 billion), as well as a long-gestating measure to force the divestiture of the video app TikTok.
Now the legislation will need to be approved by the Senate and signed into law by President Joe Biden.
The TikTok ban will probably be challenged. "This is an unprecedented deal worked out between the Republican Speaker and President Biden," declared Michael Beckerman, TikTok's head of public policy, in a memo to the company's American staff. "At the stage that the bill is signed, we will move to the courts for a legal challenge."
China's internet regulator/censor, the Cyberspace Administration, has taken note of the movement on the TikTok bill, which would either ban the Chinese-owned company from operating in the U.S. or force sale of the app to an American owner within a tight timeframe. Forcing divestiture presents a few problems, namely that the proprietary algorithm and source code would likely fail to convey with the purchase, making the app…practically useless.
Not to be outdone by American lawmakers, China's government on Friday ordered that the Meta-owned WhatsApp and Threads be pulled from Apple's app store over "national security concerns" (of course). "A person briefed on the situation said the Chinese government had found content on WhatsApp and Threads about China's president, Xi Jinping, that was inflammatory and violated the country's cybersecurity laws," reports The New York Times. WhatsApp is used minimally compared to WeChat (owned by Chinese company Tencent). But for Apple—which anticipated this to some degree, and already started shifting its supply chain overseas after having been quite conciliatory to the Chinese Communist Party for many years—to be caught in the crosshairs is a harbinger of more to come.
This type of justification can always be found if one looks hard enough—and China's censors certainly do. But beware the coming internet wars, and the use of the American TikTok ban as justification for all manner of crackdowns.
Free and open internet? "A Russian opposition blogger, Aleksandr Gorbunov, posted on social media last month that Russia could use the move to shut down services like YouTube," argues The New York Times' David McCabe. "I don't think the obvious thing needs to be stated out loud, which is that when Russia blocks YouTube, they'll justify it with precisely this decision of the United States," said Gorbunov.
Xi's regime in China and Vladimir Putin's regime in Russia, of course, feel quite comfortable taking whatever cheap shots they can at U.S. lawmakers; if they want to crack down on internet freedoms, they can and will, no excuse necessary. But the TikTok bill is certainly escalatory, and it undermines America's longstanding rhetorical commitment to a free and open internet—or the internet as a "global free-trade zone," in the words of former President Bill Clinton.
Scenes from New York: Today is my birthday! And on Saturday, I went out with friends (including a grand total of three babies, who were shockingly well-behaved) to eat crab in Chinatown. After that we went to an event in a basement on East Broadway where the books attempted to teach my toddler that rules are for breaking! Marginally better than Ibram X. Kendi's children's books, but not by much.
 April 24, 2024 |
Good morning. We’re covering TikTok’s pro-China tilt — as well as Trump’s trial, abortion and Mark Zuckerberg’s style.
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| TikToking. Luke Sharrett for The New York Times |
A turnabout
The debate over TikTok has shifted very quickly. Just a few months ago, it seemed unlikely that the U.S. government would force ByteDance, the Chinese company that owns TikTok, to sell it. The platform is popular, and Congress rarely passes legislation aimed at a single company.
Yet a bipartisan TikTok bill — packaged with aid for Ukraine, Taiwan, Israel and Palestinians — is now on its way to becoming law. Late last night, the Senate passed the measure, 79 to 18, three days after the House passed it, 360 to 58. President Biden said he would sign it today. If ByteDance does not sell TikTok within 12 months, it will be banned in the United States.
What explains the turnabout?
I have asked that question of policymakers and their aides in recent weeks and heard a similar answer from many. Parts of the debate over TikTok — about the overall benefits and drawbacks of social media, for instance — are complicated, and they would not justify the forced sale of a single company, the policymakers say. But at least one problem with TikTok falls into a different category.
It has become a leading source of information in this country. About one-third of Americans under 30 regularly get their news from it. TikTok is also owned by a company based in the leading global rival of the United States. And that rival, especially under President Xi Jinping, treats private companies as extensions of the state. “This is a tool that is ultimately within the control of the Chinese government,” Christopher Wray, the director of the F.B.I., has told Congress.
When you think about the issue in these terms, you realize there may be no other situation in the world that resembles China’s control of TikTok. American law has long restricted foreign ownership of television or radio stations, even by companies based in friendly countries. “Limits on foreign ownership have been a part of federal communications policy for more than a century,” the legal scholar Zephyr Teachout explained in The Atlantic.
The same is true in other countries. India doesn’t allow Pakistan to own a leading Indian publication, and vice versa. China, for its part, bars access not only to American publications but also to Facebook, Instagram and other apps.
TikTok as propaganda
Already, there is evidence that China uses TikTok as a propaganda tool.
Posts related to subjects that the Chinese government wants to suppress — like Hong Kong protests and Tibet — are strangely missing from the platform, according to a recent report by two research groups. The same is true about sensitive subjects for Russia and Iran, countries that are increasingly allied with China.
Consider this data from the report:
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| Source: Network Contagion Research Institute | Actual hashtags do not include spaces. Black Lives Matter hashtag is #BLM. | By The New York Times |
The report also found a wealth of hashtags promoting independence for Kashmir, a region of India where the Chinese and Indian militaries have had recent skirmishes. A separate Wall Street Journal analysis, focused on the war in Gaza, found evidence that TikTok was promoting extreme content, especially against Israel. (China has generally sided with Hamas.)
Adding to this circumstantial evidence is a lawsuit from a former ByteDance executive who claimed that its Beijing offices included a special unit of Chinese Communist Party members who monitored “how the company advanced core Communist values.”
Many members of Congress and national security experts find these details unnerving. “You’re placing the control of information — like what information America’s youth gets — in the hands of America’s foremost adversary,” Mike Gallagher, a House Republican from Wisconsin, told Jane Coaston of Times Opinion. Yvette Clarke, a New York Democrat, has called Chinese ownership of TikTok “an unprecedented threat to American security and to our democracy.”
In response, TikTok denies that China’s government influences its algorithm and has called the outside analyses of its content misleading. “Comparing hashtags is an inaccurate reflection of on-platform activity,” Alex Haurek, a TikTok spokesman, told me.
I find the company’s defense too vague to be persuasive. It doesn’t offer a logical explanation for the huge gaps by subject matter and boils down to: Trust us. Doing so would be easier if the company were more transparent. Instead, shortly after the publication of the report comparing TikTok and Instagram, TikTok altered the search tool that the analysts had used, making future research harder, as my colleague Sapna Maheshwari reported.
The move resembled a classic strategy of authoritarian governments: burying inconvenient information.
The coming fight
The fight over TikTok won’t end even when Biden signs the bill. Chinese officials have signaled that they will not allow ByteDance to sell TikTok, and ByteDance plans to fight the law in court. It will have some American allies, too.
On the political left, groups like the A.C.L.U. say that the TikTok bill violates the First Amendment. (You can read the A.C.L.U.’s argument here.) On the right, Jeff Yass, who’s both a TikTok investor and a major Republican campaign donor, is leading the fight against the bill. He is also a former board member at the Cato Institute, which has become a prominent TikTok defender. Yass may be the person who convinced Donald Trump to reverse his position and oppose the bill.
These opponents hope to use TikTok’s popularity among younger Americans to create a backlash in coming weeks. And they may have some success. But they are in a much weaker position than they were a few months ago.
As Carl Hulse, The Times’s chief Washington correspondent, told me, “The fears that TikTok gives China too much of a way into the U.S. seem to be overriding any political concerns.” There is a long history of members of Congress overcoming partisan divisions to address what they see as a national security threat. Even in today’s polarized atmosphere, it can still happen.
For more
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