"How Not to Decide TikTok: U.S. Press Freedom Hangs in the Balance"

An interesting analysis by Prof. David Cole (Georgetown), the former National Legal Director of the ACLU, at Just Security; an excerpt:

After more than two hours of argument Friday morning in TikTok v. Garland, the Supreme Court appears likely to allow the U.S. government to force divestiture or shuttering of the platform on January 19…. In my view, that's the wrong result…. [But] how the Court reaches its result may now be more important than the bottom line.

In particular, the Court should reject the government's principal argument, namely, that the TikTok law is "content-neutral" because it is concerned only with who controls the platform, not the content the platform features. Accepting that rationale would not only harm TikTok, but would weaken First Amendment law across the board….

The Protecting Americans from Foreign Adversary Controlled Applications Act singles out a particular communication platform out of concern about its content, and exempts other platforms based on their e-commerce content, even though they pose similar data security concerns. The government justifies the law as a response to the risk of "covert content manipulation" by China…. That justification is inescapably related to the content on the platform, and under longstanding First Amendment law, should trigger strict scrutiny….

The fact that the government targets an owner rather than any specific message does not make the law any less content-based, where, as the government concedes here, its concern relates to the content that owner might promote. Controlling ownership is at least as potent a censorship tool as prohibiting particular messages, and maybe even more effective. The fact that the owner in this case is a foreign company, ByteDance, ought not change whether the law is content-based….

The Court should also reaffirm, as it stated as recently as last year's decision in Moody v.NetChoice, that efforts to control the "mix of content" on social media platforms is at its core, "related to the suppression of free expression." The Solicitor General sought to distinguish the TikTok law on the ground that the government's concern is not merely with potential content manipulation, but potential "covert" content manipulation. But that makes no sense. Essentially all editorial decisions are covert (including the ones Just Security made in editing this essay), in the sense that the reader of a finished article or watching a newscast is not privy to the countless decisions made about what to cover, what not to cover, and what views to include, promote, or exclude in any expressive product….

If the Court rules that strict scrutiny applies, but this law satisfies it, that will be a huge loss for TikTok and its 170 million American users. But if the Court accepts the government's contention that laws targeting owners of media companies are somehow content-neutral because they don't literally specify particular messages to prohibit, the First Amendment and press freedoms more broadly would be the losers.

Comments

[Brett Bellmore]

Wow. I could almost see myself making a "not a suicide pact" argument in response to that essay. Well, not quite, but I see the temptation.

"The fact that the owner in this case is a foreign company, ByteDance, ought not change whether the law is content-based"

Really? The fact that the owner is a foreign company entirely subject to the control of a hostile totalitarian state, oughtn't change anything? That seems a bit extreme.

"The Protecting Americans from Foreign Adversary Controlled Applications Act singles out a particular communication platform out of concern about its content, and exempts other platforms based on their e-commerce content, even though they pose similar data security concerns."

While I agree that the federal government should be equally concerned with, say, Temu, has the government ever been required to exercise the full reach of its power, in order to act at all? Will the ACLU's analysis really change if Trump takes office and decides that ALL internet apps run by companies subject to Chinese control are impermissibly dangerous?

Probably not.

[Absaroka]

I just checked ... there is a pravda.com. I'd bet good money its news is slanted. Should it be banned?

(old Soviet joke: ""there is no information in Izvestia, there is no truth in Pravda")

[David Nieporent]

"The fact that the owner in this case is a foreign company, ByteDance, ought not change whether the law is content-based"

Really? The fact that the owner is a foreign company entirely subject to the control of a hostile totalitarian state, oughtn't change anything? That seems a bit extreme.

Sigh. Reading is fundamental. The quote doesn't say "oughtn't change anything." It says, "ought not change whether the law is content-based."

[Brett Bellmore]

But, the law isn't content based. It's ownership/control based.

The link provided in the OP is to a different law, Here's the correct link.

"(a) In general.—

(1) PROHIBITION OF FOREIGN ADVERSARY CONTROLLED APPLICATIONS.—It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following:

(A) Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.

(B) Providing internet hosting services to enable the distribution, maintenance, or updating of such foreign adversary controlled application for users within the land or maritime borders of the United States.

(2) APPLICABILITY.—Subsection (a) shall apply—

(A) in the case of an application that satisfies the definition of a foreign adversary controlled application pursuant to subsection (g)(3)(A), beginning on the date that is 180 days after the date of the enactment of this Act; and

(B) in the case of an application that satisfies the definition of a foreign adversary controlled application pursuant to subsection (g)(3)(B), beginning on the date that is 180 days after the date of the relevant determination of the President under such subsection."

How shocking to discover that the law was being misrepresented by the ACLU. The law does not "singles out a particular communication platform out of concern about its content," and does not "exempts other platforms based on their e-commerce content".

To be sure, the law mentions Tiktok and Bytedance, but then says,

"or

(B) a covered company that—

(i) is controlled by a foreign adversary; and

(ii) that is determined by the President to present a significant threat to the national security of the United States following the issuance of—

(I) a public notice proposing such determination; and

(II) a public report to Congress, submitted not less than 30 days before such determination, describing the specific national security concern involved and containing a classified annex and a description of what assets would need to be divested to execute a qualified divestiture."

And nowhere excludes e-commerce sites.

[David Nieporent]

But, the law isn't content based.

Prof. Cole: "The court should not accept the claim that it's content-neutral; it's clearly content-based, for reasons X, Y, and Z."
Brett: "But I don't think it's content-based."

Do you see how you didn't really respond to the argument?

Now, you are correct that the text of the statute doesn't say the word "content," but why you think that's dispositive is unclear. If I pass a law saying "Brett can't speak" because I don't like the message I expect you're going to say, the fact that my law doesn't mention that message doesn't mean that the ban is content neutral. There are two justifications given by the government for the TikTok ban, and one of those two justifications is precisely "It is likely to distribute Chinese propaganda." If you want to say, "It's okay to do this because the Chinese government has no rights," or "because the U.S. govt has a compelling interest in hindering Chinese propaganda efforts," then say so — but don't claim that the law isn't content based at all.

Oh, and you're wrong when you say that it "nowhere excludes e-commerce sites," you're wrong. Or, more precisely, it doesn't include e-commerce sites. A covered company is defined as a company that allows users to share content with other users. (Other than the user product reviews on an e-commerce site like Amazon, an e-commerce site would not fall within that definition.)

Oh, and in terms of it not being content based: it explicitly permits sites "whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews." That, of course, is a direct content-based rule.

[Rossami]

I disagree with your characterization because you grant Prof Cole with articulating "reasons X, Y and Z" which I don't see in the actual article above. I see a lot of talking around the issue but nothing beyond mere assertion that it's "clearly content-based".

The general rule to determine whether a rule is content-based or not is whether you need to look at the content to determine if the law has been breached. What TikTok content do you need to read to determine TikTok's ownership? Under what current precedent is this law content-based?

Preventing A from speaking is a potential 1A problem but that's different from whether it's a content-based decision.

[David Nieporent]

Well, it's literally content based in that the statute requires that one review an app's content to see if it consists of product reviews or (say) a discussion of politics.

But again, the motivating intent behind the statute is "the Chinese government is spreading propaganda." Without that concern, how does the statute even have a rational basis?

[r]

Another example is the provision that an app that "is determined by the President to present a significant threat to the national security of the United States" can be banned. Obviously, this power will be used based on content.

For example, the President isn't likely to consider an app that purports to record the amount of smog in Beijing to be a significant national security threat, because the content is relatively benign no matter that it may be controlled by the CCP and even if filled with misinformation.

[Although maybe this makes it more appropriate for an as-applied vs. a facial challenge - I haven't looked into that issue in some time]

[Ken Arromdee]

The problem is that in a free market it should be okay to produce Chinese propaganda, but Tiktok is not in a free market; it is run by a government that rules by force and controls what gets posted there using the threat of violence. If, in a truly free market, someone were to post Chinese propaganda, that's very different from someone posting Chinese propaganda because the owner has guns trained on them.

If someone in the US ran a server and threatened to lock someone up in his basement for posting that Taiwan is not part of China, stopping that should be acceptable, because it isn't really about content. This is exactly the same scenario as that except the guy with the dungeon is across an ocean and we can't stop him directly, but we can still stop his server.

(Even if the guy posted himself, he still used guns to get the money to run the server and be able to post. And before you ask "the US government also uses guns, do you want to keep them from owning Tiktok too?" my answer is "of course!")

[mse326]

(2) COVERED COMPANY.—

(A) IN GENERAL.—The term “covered company” means an entity that operates, directly or indirectly (including through a parent company, subsidiary, or affiliate), a website, desktop application, mobile application, or augmented or immersive technology application that—

(i) permits a user to create an account or profile to generate, share, and view text, images, videos, real-time communications, or similar content;

(ii) has more than 1,000,000 monthly active users with respect to at least 2 of the 3 months preceding the date on which a relevant determination of the President is made pursuant to paragraph (3)(B);

(iii) enables 1 or more users to generate or distribute content that can be viewed by other users of the website, desktop application, mobile application, or augmented or immersive technology application; and

(iv) enables 1 or more users to view content generated by other users of the website, desktop application, mobile application, or augmented or immersive technology application.

(B) EXCLUSION.—The term “covered company” does not include an entity that operates a website, desktop application, mobile application, or augmented or immersive technology application whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.

You have to look at the content of the app to see if it is a covered company. That is what makes it content based.

Also whether it is content based and whether foreign companies have to same rights and domestic are two different questions. The determination of whether something is content based has nothing to do with the latter. If they don't have the same rights it might not matter that it's content based, but doesn't change whether it is or not

[Brett Bellmore]

But I don't think "has content or doesn't" is what content based means.

But I will agree I probably should have read further. So, it doesn't cover Temu. That's stupid, but I think probably not a constitutional problem so far as the Court is concerned.

[mse326]

But read the exclusion. You have to look at the content to know if it is excluded or not so you have to look at the content to see if it is ultimately covered. It doesn't just matter that there is content, but what that content is. That is content based.

[ReaderY]

See my comment below.

[Krayt]

"The fact that the owner in this case is a foreign company, ByteDance, ought not change whether the law is content-based"

Tik tok came out of nowhere and swarmed into dominance, destroying Vine. This kind of thing doesn't happen in a dictatorship without immediately catching attention. Fingers are inserted into pies, or maybe worse. I'm fine kicking those oligarchs in the nuts, a plenty sufficient reason, beyond spying.

[Bob from Ohio]

ACLU defending communists. Did not see that coming!

[Commenter_XY]

Going back to their roots, lol.

[Ciobair]

So you are happy with one type of political opinion being banned? Sort of confirms the analysis by David Cole...

[M L]

I haven't followed this at all. Do foreign governments enjoy the same rights to free speech and free press, within the U.S., as U.S. citizens do?

[Brett Bellmore]

You wouldn't think so. That does seem to be the argument: That if the government can prohibit ownership of a media platform by a company subject to control by a foreign adversary, they could prohibit ownership by an American, too.

The reasoning behind that makes no sense unless you assume the government isn't allowed to distinguish between American and foreign entities.

[M L]

I don't think they should. That's my initial reaction anyway. Same for foreign companies. But that's "ought" not "is."

I can see a textual argument that "Congress shall make no law...abridging the freedom of speech, or of the press" isn't particularized to certain parties.

Still, it is referring to a certain thing with the definite article before "freedom."

The next clause, "or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" specifies "of the people." Does "the people" include foreign governments or people? If not, is that supposed to create a distinction between the classes of persons who enjoy the right of assembly vs the right of free speech?

Or is "the people" implied throughout such that the free speech clause could be stated "the right of the people to freedom of speech" or "the freedom of the people to speak" or some such.

[Absaroka]

We talk about freedom of speech, but I think there is a corresponding right to listen. A law that says 'ML can criticize the president, if and only if no one is in earshot' allows you to speak, but speaking in the absence of listeners isn't much use.

I kinda assert that Americans ought to be able to listen to anyone they darn well want, whether that speaker is foreign or not. If I want to get my news from the Pyongyang Daily News, Radio Free Cuba, or BBC, or watch Monty Python, that's for me to decide, not the US government.

[Brett Bellmore]

Sure, and I agree. The problem is that using somebody's app has a lot of implications beyond being able to listen to their content. Apps basically take over your device, that's the POINT of using an app rather than just accessing a site over the web: To strip you of large parts of control over your own device.

If TikTok were just a web based service, this law wouldn't apply to it! It only applies to apps.

But a web based Tiktok wouldn't be nearly the threat to US interests, even though it would be just as useful for speech and publishing, because it wouldn't have that control of the device aspect to offer China.

[David Nieporent]

The law applies to websites, not just apps. And what insecure 19th-century device are you using that an app "takes over" that device?

[Absaroka]

1)So, there are apps for bbc. Can it be banned?

2)If the tiktok souce code is open sourced, then I assume you don't object to it any more than, say, linux?

3)n.b. "The government justifies the law as a response to the risk of "covert content manipulation"..."

4)I also assert the right to run whatever software I like on my device. I mean, if I want to run a malware ridden Hungarian Furry Porn App, that's my kinky business.

[David Nieporent]

Under the logic of the government's position, yes, the BBC app can be banned.

[Absaroka]

Egg-zackly.

Heh. Every person reading this uses software called OpenSSL all the time. That's how you run https to safely give your credit card to amazon, among many other things. Fun fact: by design, the development is all outside the US ... because encryption developed inside the US is a 'munition' that can't be exported (yes, it's as dumb as it sounds). So perhaps we should ban SSL.

(FWIW, I don't think that any of the developers are in China or Russia, at least as of a couple years ago).

[M L]

So what if the BBC's app could theoretically be banned? Not everything that's bad or silly or dumb has to be unconstitutional.

[Absaroka]

I might want to hear what the BBC has to say, or watch Monty Python or whatever. I don't want the US Government telling me I can't read 1984 or the Bible or The Communist Manifesto, as print books or using an app on my phone, and I don't want the government telling me what apps I can or can't run on the phone I bought.

[David Nieporent]

I might want to hear what the BBC has to say, or watch Monty Python or whatever. I don't want the US Government telling me I can't read 1984 or the Bible or The Communist Manifesto, as print books or using an app on my phone, and I don't want the government telling me what apps I can or can't run on the phone I bought.

And just to be clear, SCOTUS has ruled that you do have a 1A right to read/hear stuff from foreign govts.

[M L]

"I might want . . . I don't want . . . "

Of course. But what on earth does that have to do with the Constitution?

[Absaroka]

"But what on earth does that have to do with the Constitution?"

Fair enough: I assert a first amendment right to listen to whatever and whoever's thoughts I please, in print, via radio, or electronically.

The 'your radio better only receive one frequency' stuff is for North Korea, not the United States.

[M L]

"right to listen"

I suppose. But anyone can report on what a foreign government is saying. "The CCP says this." That seems easy enough. Or go and access that information directly in some way. But that's different from allowing them to set up a broadcast network for example or a distribution business.

[Krayt]

Not per se, but you also have a first amendment right to hear dictators. Normally they's have to register somehow, so you are aware of who is speaking, like lobbyists.

Given how violently factions in the US smash each other over the head using transparency laws of donors, you'd would think this wouldn't even be controversial.

[M L]

"that will be a huge loss for TikTok and its 170 million American users"

Legal issues aside, nuking TikTok would be a huge benefit to those users.

[Absaroka]

"nuking TikTok would be a huge benefit to those users"

now if we could do facebook as well...

[David Nieporent]

Legal issues aside, nuking TikTok would be a huge benefit to those users.

My teenage daughter strongly disagrees.

[Sarcastr0]

Legal issues aside, nuking TikTok would be a huge benefit to those users.

OK Boomer.

[Libertatem]

Missing from the constant barrage of pro-TikTok arguments is a persuasive explanation as to how the law is based on the content of speech.

[Brett Bellmore]

"The government justifies the law as a response to the risk of "covert content manipulation" by China…. That justification is inescapably related to the content on the platform, and under longstanding First Amendment law, should trigger strict scrutiny…."

I wouldn't call it exactly persuasive, in as much as it requires treating Americans and hostile foreign states as legally equivalent. It's conspicuous that the ACLU didn't view things that way when it came to supposed Russian collusion with Trump, which after all consisted of just buying some space on FB...

[David Nieporent]

That is not, "after all" what Russia's assistance of Trump "just" "consisted of."

[ReaderY]

That fact that the owner is a foreign company changes whether the First Amendment has any application at all. If the First Amendment does not apply, content basis and associated arguments are simply irrelevant.

[ReaderY]

Professor Cole’s argument is about as relevant as an attempt to apply police use-of-force precedents to an abortion case with a brief note that the fact that the woman is a private individual and the fetus is a fetus ought not to change whether an abortion is an unreasonable police use of force.

It may not change whether an abortion is an unreasonable police use of force. But it sure changes whether the police-use-of-force standard has any relevance to the outcome of the case.

[David Nieporent]

Well, I guess when you get appointed to the Supreme Court you can tell them that all these factors they're considering are "simply irrelevant."

[ReaderY]

At least 4 Justices asked why the First Amendment applied to ByteDance given that it was a foreign corporation.

[David Nieporent]

Do you think that asking how and whether the 1A applies is the same as declaring that the 1A is "simply irrelevant"?

[Ken Shultz]

"That fact that the owner is a foreign company changes whether the First Amendment has any application at all."

----ReaderY

The First Amendment is a restriction on government. That's why it begins, "Congress shall make no law".

There is a philosophy that holds people have rights because they're citizens. That philosophy is called "communism". The only rights the Constitution bestows on citizens is the right to vote and the right to hold office. Everything else is a natural right that belongs to citizens and non-citizens alike.

The First Amendment prohibits the government from regulating speech. But the First Amendment doesn't protect the freedom to violate someone's rights with our speech any more than the Second Amendment protects the freedom to violate someone's rights with a gun. That's why passing a threatening note to a bank teller demanding money is a crime--just as much as brandishing a gun.

Is TikTok threatening our rights under the guise of speech--like a bank robber handing a threatening note to a bank teller?

My answer is "yes".

[ReaderY]

[ReaderY]

Well, you’re welcome to call the Supreme Court of the United States - specifically Justices Kavanaugh, Roberts Thomas, Alito, and Gorsuch - communists. And you’re welcome to call what their opinion called a “bedrock legal principle” of American law communism.

https://www.supremecourt.gov/opinions/19pdf/19-177_b97c.pdf

[Ken Shultz]

"As a matter of American constitutional law, foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution"

The Supreme Court has been wrong about "bedrock principles" before. Regardless, the First Amendment remains a prohibition on government action rather than a grant of rights to any group of people--foreign or domestic. "Congress shall make no law" . . . I just can't pretend it doesn't say that, especially when we're talking about a law Congress passed to force the sale of TikTok.

Are you suggesting that the U.S. government is free to violate anything else in the Constitution, or is the First Amendment the only principle?

I understand the suggestion that entities operating entirely outside the United States may not have standing in U.S. courts. That shouldn't be interpreted to suggest that Congress is free to create laws that violate the First Amendment when it's going after foreigners--even if it's been misinterpreted that way in the past.

Meanwhile, TikTok is operating within the United States and so are its users.

[ReaderY]

Read a little further. It was a First Amendment case.

There was no standing problem. They could sue in court. They just lost on the merits because they didn’t have any rights.

It’s like arguing that Congress can’t fund abortion because, just because fetuses don’t have rights doesn’t permit Congress to violate the constitution by participating in killing them etc. etc. etc. Not so. If you don’t have rights, Congress isn’t limited in what it can do to you (except by its enumerated powers). Foreign citizens outside US territory are in the same boat as fetuses so far as the Constitution is concerned.

If things were otherwise, we couldn’t wage war. War involves killing people. And Congress can do that. Congress can wage war and fund killing foreigners just as it can fund abortion. And it can jam foreigners’ communications just as readily as it can kill them. The First Amendment doesn’t prevent it.

Congress can engage in steps short of war. It can jam communications. It can simply seize TikTok from ByteDance if it wants, and it doesn’t have to pay any compensation. It can order a drone strike to kill ByteDance’s management.

[Ken Shultz]

I'm not persuaded by the argument that China could use TikTok to spread disinformation either, but TikTok as a data collection tool remains a serious security threat to the United States anyway.

The question isn't whether Congress is prohibited from making laws that violate the First Amendment. The question is whether TikTok is a legitimate threat to American security, and the answer is "yes".

As the hacks of AT&T and Verizon show, the Chinese government is clearly readying themselves for a potential war with the United States by collecting whatever data they can. And the First Amendment doesn't prohibit Congress or the Commander-in-chief from being prudent in their responsibility to protect our rights from foreign threats.

If the only reason Congress passed a law to force the sale of TikTok were to change the person speaking from one to another, that would not be in harmony with the First Amendment. But that isn't the issue. It isn't about whether the Chinese government or someone else is doing the talking. It's the data they're collecting to use against us. That's the problem.

TikTok cannot be trusted to keep our data out of the hands of the CCP--even while the CCP is spoiling for a war with the USA. Willfully letting TikTok continue to collect our data under those circumstances would be woefully incompetent. Should we end up at war with China over Taiwan, carrying water for them might even be an impeachable offense.

[David Nieporent]

What "data" do you think that China is getting related to national security?

[Ken Shultz]

What information is China getting related to national security in their hacks of AT&T and Verizon?

It seems to me that the CCP considers that information useful as they prepare for a war with the United States.

Why shouldn't TikTok's data be considered the same way?

[Sarcastr0]

Constitutional issues aside, blindly using enemy action as a barometer of what to go against keeps you one step behind, and is a great way to ignore one's own values and goals.

[Ken Shultz]

Protecting our rights is a legitimate purpose of government. We have police to protect our rights from criminals. We have courts to protect our rights from the police. We have a military and a Commander-in-chief to protect our rights from foreign threats--especially when they're duly authorized to do so by Congress. I see those as our values and goals, and I think they're clearly in focus here in regards to forcing a sale of TikTok.

Let's try to think of it this way: If a hacker stole this information from Google or some other entity in the United States and gave it to the CCP for their use in a potential war with the United States, would you think it a violation of the First Amendment to convict that hacker of espionage? In that example, the spy is hacking to get this information, but isn't it even worse if the U.S. government willfully allows the CCP to collect this data in broad daylight?

[Sarcastr0]

1. This is bad policy: China wanting a thing is not the same as the thing being harmful to the US.
China can make stupid decisions as well!
Take, e.g. a research policy hypo. The intel types say China is looking into thing X. That doesn't mean we jump to researching thing X harder than China.
It is the US government's responsibility to do an independent evaluation of the information and act accordingly.

2. This is bad values: National security is not a blank check to overrun all other values. We've had times where we flirted with that (I'm thinking McCarthyism). We ended up doing vastly more damage to our society than it did to the enemy.

3. This is bad law: If a hacker stole a bunch of videos of teenagers doing fresh dance breakdowns I wouldn't suddenly decide a deep knowledge of our dance moves must be the new threat to the US. It'd be a crime, sure, but the punishment would be low as compared to something more damaging to the US. (Maybe privacy violations)

[ReaderY]

The Supreme Court, like any federal court, doesn’t decide if a law is bad values, bad policy, etc. it decides if the law is constitutional.

[Ken Shultz]

1) If the CCP wants this information in preparation for a war with the United States, it would be ridiculous to assume it isn't valuable to them for those purposes. This is like defending the Rosenbergs on the basis that maybe the Soviet Union only wanted information regarding the Manhattan Project for academic reasons. Defending the First Amendment doesn't require us to be willfully obtuse.

2) Forcing an entity beholden to a foreign power--that is conspiring against us--to divest itself of an intelligence gathering app is no more a violation of the First Amendment than a law against passing a note to threaten a bank teller. Incidentally, the First Amendment doesn't protect perjury or fraud either--even though they're speech. Laws against espionage are also not a violation of the First Amendment. A law against what amounts to espionage by forcing TikTok to divest itself of an intelligence gathering app also doesn't violate the First Amendment.

If China wants to stay on TikTok after a Chinese entity no longer owns it, I suppose the First Amendment will still protect their speech.

3) You should review what kinds of data TikTok collects and how it might be useful to a foreign adversary if we went to war. It isn't just about the content itself. The app can track location data. The app can track all the other sites you visit. There are LGBT kids who have been driven to suicide by hackers over threats to expose them to their peers. Has someone in a security sensitive position been hooking up via Ashley Madison? Do their wife and kids know? Did you go to WebMD and search for symptoms of a venereal disease? Have you read anything about how various state actors use photos and social media for datamining purposes in the Ukraine conflict?

This isn't about dance videos. It's about the data the app hoovers and how it can be used by an enemy of the United States.

[Noscitur a sociis]

You realize Trump is on the pro-Tik Tok side here, right?

[Sarcastr0]

Oh dear. I'd better reverse barometer it and support the ban then!

[I'm not informed enough to have an opinion on the policy merits of the ban, I just saw an argument that was bad in an interesting way and wanted to push back on it.]

[David Nieporent]

You didn't answer the question: what "data" do you think that China is getting [from TikTok] that is related to U.S. national security?

[Swede425]

In a former life, I did medical threat analysis in the US Army.
One of the ways I like to express myself is through interpretive dance.
I'm ashamed to say that I posted a video on TikTok of my interpretive dance of the medical threat analysis of invading Guatemala (mostly VD and snake bites).
I now realize that China could use my TikTok video to thwart our efforts in bringing Freedom(tm) to Guatemala.

[Satchmo_Lives]

Food distribution. Which truckers are at food warehouses and where they go. As opposed to truckers delivering TVs.

Routes of gas delivery.

Best time to cause gridlock by hacking toll booths and signals.

Real time train positions.

People visiting locations where there appears to be nothing around.

A meeting where there are many top scientists.

Where people work.

Took about 5 minutes of thought.

[David Nieporent]

Now take another 5 minutes, and explain,

(a) what about that is a threat to national security;
(b) why you think TikTok is a good way to get that information; and
(c) why that information — none of which is classified — isn't readily available, either by observation or by purchase by anyone from data brokers.

[Ken Shultz]

In regards to (c), if Google sold our data directly to the CCP, that would be a travesty.

TikTok might as well be collecting our data for the CCP as things stand, and that is also a travesty.

Again, we're talking about the perfect solution fallacy. Quitting smoking may not prevent lung cancer entirely, but if you want to avoid lung cancer, quitting smoking isn't useless. It's actually a very prudent idea.

[David Nieporent]

In regards to (c), if Google sold our data directly to the CCP, that would be a travesty.

The data is readily commercially available. That having been said, I doubt any company is going to sell it to "Chinese Communist Party Inc." But there are an infinite number of companies, legitimate or cutouts, that China could get the data from.

Note that this law doesn't even ban the sale of any data to the Chinese government! Any company is free to sell it to them, just like the company would sell to anyone else, subject only to user agreements.

[Ken Shultz]

If the information they're after is freely available elsewhere, why are they hacking into AT&T, Verizon, and elsewhere?

If the sale of the information to the CCP isn't banned in this law, isn't that because the sale of such information to the CCP is already against the law elsewhere?

Don't the Espionage Act of 1917 and the Economic Espionage Act of 1996 already address this as a crime?

[David Nieporent]

Taking your paragraphs seriatim:

1) I don't know that they are hacking into AT&T and Verizon. (I know that's been alleged.) But assuming they are, I don't know what that has to do with TikTok. Do you think that all companies have the same information?

2) No.

3) Address what as a crime? The Espionage Act of 1917 applies to national defense information. The Economic Espionage Act of 1996 applies to trade secrets. Which of the information that China is potentially acquiring from TikTok would fall into either of those categories?

[River]

I disagree about the bottom line result. ByteDance's refusal to divest screams that TikTok isn't a genuine private business enterprise at all, it is a mouthpiece of the PRC, and that national security dimension warrants government intervention.

But I think this piece makes a good point about levels of scrutiny - controlling the owner can be a form of censorship. I think this may be the extremely rare case of a law that passes strict scrutiny, and it is no surprise that the place where that happens is in the national security arena.