There is significant momentum in Congress toward banning TikTok in the U.S. or forcing a sale by its Chinese ultimate parent company, ByteDance, to a non-Chinese owner.
A TikTok ban would significantly impact U.S. businesses. What are the odds that the ban would pass court scrutiny? What are the legal and other options for businesses if the ban occurs?
U.S. businesses advertise heavily through TikTok, and with good reason. TikTok has 170 million users in the U.S. The average TikTok user in the U.S. spends an hour and a half daily on the app – far more than the second-place app, Instagram, which averages about 30 minutes per day.
Because of this popularity, U.S. businesses spent about $6.2 billion in 2023 for advertisements on TikTok. Businesses also run various other kinds of advertising campaigns on TikTok, such as providing free products to social media influencers in exchange for favorable reviews or paying the influencers for promotion. Businesses also market on TikTok by doing things such as encouraging public adoption of marketing hashtags, running challenges that draw attention to their companies, and engaging on TikTok with complementary and similar businesses.
Congressional Concerns
There is bipartisan congressional concern about TikTok. ByteDance is widely believed to be controlled by the Chinese Communist Party (CCP).
Members of Congress have several concerns: TikTok gathers an extraordinary amount of information about its app users, such as location data, biometric identifiers (i.e., face and voice information), usage/browsing history, keystroke patterns or rhythms, messages sent through TikTok, information found in a device’s clipboard (e.g., text, images, and videos), phone and social network contacts, and a host of information gathered from third parties, (e.g., other social media platforms). There is concern that this information could be used maliciously, such as to coerce American residents into cooperating with CCP aims.
Many are concerned that the CCP has and will use its control over TikTok to manipulate U.S. opinion and elections. Some are concerned that TikTok is a cultural weapon intended to negatively impact the mental health of U.S. residents and sap the strength of U.S. society.
Interestingly, TikTok is not a permitted app in China, and neither are Facebook, Instagram (owned by Facebook), or Twitter (now X). In China, ByteDance operates an app similar to TikTok called Douyin, which the CCP censors.
Existing Bans
Some TikTok bans are already in place. The federal government banned the TikTok app from government-owned mobile devices and computer and wireless networks, and from personally owned devices used for governmental purposes. Around 40 states have banned the TikTok app from state-government-owned mobile devices and computer and wireless networks, including Virginia.
Several U.S. universities have also banned the TikTok app from school-owned devices and networks, such as campus Wi-Fi, including the University of Oklahoma, Auburn, Purdue, and Clemson. The University of Virginia has banned the app from school-owned devices and prohibited employees from using TikTok via U.Va.’s computer networks.
Lawmakers are getting more aggressive on the issue. Montana passed a law effectively banning TikTok entirely. A federal trial court in Montana preliminarily enjoined enforcement of the law, finding that it violates the free-speech provision of the First Amendment, intrudes upon the lawmaking power of the federal government, and impermissibly regulates interstate commerce.
Ban Legislation in Congress – Is it Constitutional?
In Congress, a bill that would ban TikTok in the U.S. or force the sale of it to a non-Chinese owner passed the House of Representatives and is before the Senate. President Biden said he would sign such a bill.
If such a law is passed, would it survive court review? Probably so if the bill’s language is carefully crafted and its passage is handled appropriately.
The biggest challenge would be under the Free Speech Clause of the First Amendment.
One may wonder why this is a free-speech issue at all. There are many other social media sites upon which people can express themselves. Other short-form video services exist, such as Instagram Reels and YouTube Shorts. Yet, a court would likely hold that TikTok engages in speech because of how it curates what its app presents. It decides what content it inserts into users’ feeds and how its algorithms choose and boost specific videos. Also, a court might hold users have an interest in expressing themselves through the app even though alternative social media sites exist.
Thus, the analysis probably comes down to whether the new law (if enacted) is a permissible restriction on speech.
The crucial fight will be over the level of legal scrutiny the new law would receive. The choices are “strict scrutiny” and “intermediate scrutiny.” Legal restrictions on speech subject to strict scrutiny rarely pass muster.
The more forgiving intermediate scrutiny standard can be applied when the law does not target a particular viewpoint (in other words, the law is content-neutral) and only incidentally restricts speech as a part of regulating conduct. Under intermediate scrutiny, the government has to prove (i) the law serves a substantial or important governmental interest that is not the suppression of free expression, and (ii) the incidental restriction on free speech is no greater than necessary to achieve those goals.
Legal scholars disagree on whether the legislation proposed in Congress would survive even intermediate scrutiny. The federal trial court that considered the Montana law preliminarily held that the Montana statute did not survive. Montana is appealing that decision to the Ninth Circuit. Still, in defending its law, it appears Montana failed to put on certain kinds of proof that might have won its case.
I believe Congress has a strong chance of crafting its law to survive intermediate scrutiny. Congress would be on solid ground in arguing national security and consumer protection reasons. Those are important governmental interests.
The tougher question is whether that law would be no more impactful than necessary to achieve those governmental goals. Would the government’s interests be sufficiently met by a strong federal U.S. data privacy law, or does the government’s interests require that an influential app not be controlled by a hostile foreign power, such as the CCP?
Options for U.S. Businesses
If the law is enacted, what are the options for affected U.S. businesses? A business could join the inevitable litigation against the law on First Amendment and other grounds. Some businesses participated as plaintiffs in the lawsuit challenging the Montana law.
If the law withstands legal scrutiny, then the choices for U.S. businesses become technological and marketing choices, not legal ones.
Even if TikTok is banned in the U.S., that would not prevent accessing it via a VPN, which enables the user to pretend to be in another jurisdiction where TikTok remains legal. Does TikTok have such a powerful grip on the psyche of many users that they would use VPNs to access it? Would that be enough for U.S. companies to continue marketing there?
As noted above, other short-form video services certainly would benefit. Perhaps a lot of the TikTok traffic would migrate to Instagram Reels or YouTube Shorts. I understand Instagram Reels is popular with college students.
Would a Ban Accomplish Congress’ Goals?
Would a TikTok ban achieve Congress's goals? That’s a technological question, not a legal one, and it’s debatable.
ByteDance and other social media companies can buy extensive and powerful consumer information through data brokers. Services exist that consolidate information gathered across multiple social media services and all the websites containing tracking pixels that feed visitor information to the social media services.
I got a look at the power of one of the services when representing a large company. They are so powerful that they can usually connect all of a person’s online presences – both personal and business accounts. The company’s marketing director once told me that the information is so granular that, theoretically, she could target an online ad to one specific person. (She didn’t say she did so, though.)
What About the Behavior of U.S.-Based Social Media Services?
One can also reasonably ask whether U.S.-based social media companies are just as psychologically and politically manipulative as TikTok. This reminds me of the scene in the movie Animal House where a pair of fraternity brothers comment on a drill instructor picking on one of their pledges. One brother comments, “He can’t do that to our pledges!” The other brother responds, “Only we can do that to our pledges!”
It’s well-established that some prominent social media services have censored posts under the banner of “misinformation” on topics such as Covid-19 vaccine safety and efficacy, LGBT issues, election security, candidate scandals, and the climate. The social media services have also been accused of promoting a political agenda on those and other divisive issues. A lawsuit is presently before the Supreme Court arguing that this social media censorship violates the First Amendment because it was purportedly pushed on social media companies by federal officials.
So, you could say it’s perfectly fine for an American social media company, perhaps acting at the behest of federal officials, to attempt to manipulate the political views of its users but not for a company controlled by the CCP to do so.
Written on March 20, 2024
by John B. Farmer
© 2024 Leading-Edge Law Group, PLC. All rights reserved.