The latest U.S. TikTok ban attempt faces the same issues as before: Popular opinion and free speech

As China has repeatedly made clear as far back as former President Donald Trump’s abortive attempt to force a TikTok sale, that divestiture isn’t going to happen—Beijing would block any sale. So this is a clear attempt to kick TikTok out of the U.S.

There are a couple big problems with this plan, which we’ll get to in a minute. But first, let’s marvel at the hyperbole in the statement accompanying the bill’s introduction. Mike Gallagher (R-Wis.), chair of the House Select Committee on the Chinese Communist Party, said: “This is my message to TikTok: Break up with the Chinese Communist Party or lose access to your American users.” Rep. Jake Auchincloss (D-Mass.): “Social media corporations are attention-fracking American youth and corroding our democracy.” Rep. Josh Gottheimer (D-N.J.): “It’s time we fight back against TikTok’s information invasion against America’s families.”

The most overwrought quote comes from House Republican Conference Chair Elise Stefanik: “TikTok is Communist Chinese malware that is poisoning the minds of our next generation and giving the CCP unfettered access to troves of Americans’ data … From proliferating videos on how to cross our border illegally to supporting Osama bin Laden’s Letter to America, Communist China is using TikTok as a tool to spread dangerous propaganda that undermines American national security. We cannot allow the CCP to continue to harness this digital weapon.”

For all this talk of protecting American kids, the fact remains that, last year, a third of American adults told Pew Research they use TikTok, up from 21% just two years previously. That’s a sharp trajectory. Demographically speaking, the research showed particularly enthusiastic uptake among 18- to 29-year-olds (62%), Hispanic adults (49%), and women (40% usage vs. 25% for men). And, as Pew reported separately last month, the roughly half of U.S. adult users who post videos to the service are pretty evenly split between the two parties.

So here’s the first big problem: This is an election year, in case anyone needs reminding, and voters may not take kindly to candidates who try to ban one of their favorite apps—or, for many, an app that accounts for their income. Yet more Pew research last fall (Pew really likes polling people about TikTok) showed plummeting support for a federal ban on the app, and fears of blowback from younger voters also reportedly helped stall congressional efforts to ban TikTok last year.

While precious few members of Congress actually have official TikTok accounts themselves, President Joe Biden’s reelection campaign is now on there, as is the Democratic Party. Which makes it slightly amusing to see a White House National Security Council spokesperson tell Reuters that the new bill is ”an important and welcome step,” and that the Biden administration will help “to further strengthen this legislation and put it on the strongest possible legal footing.”

And that’s the second big problem: constitutionality. Don’t forget that the state of Montana was supposed to have a TikTok ban in place on Jan. 1, but a federal judge blocked it for its likely incompatibility with the First Amendment. The authors of this new bill argue that it wouldn’t regulate speech because it is “focused entirely on foreign adversary control—not the content of speech being shared,” but TikTok’s response claims it will “trample the First Amendment rights of 170 million Americans,” and the American Civil Liberties Union is on board with that argument.

“We’re deeply disappointed that our leaders are once again attempting to trade our First Amendment rights for cheap political points during an election year,” said ACLU senior policy counsel Jenna Leventoff in a statement. “Just because the bill sponsors claim that banning TikTok isn’t about suppressing speech, there’s no denying that it would do just that. We strongly urge legislators to vote no on this unconstitutional bill.”

On the other hand, the Republican FCC commissioner Brendan Carr argues that Supreme Court precedent would allow a TikTok ban on the basis that the platform’s conduct—specifically espionage—rather than its content is illegal. That’s an interesting argument, but, given the political dangers of pushing this bill through Congress in an election year, I have my doubts about whether we’ll see the Supreme Court being forced to consider the First Amendment implications of a TikTok ban anytime soon.

More news below.

David Meyer

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NEWSWORTHY

Big Tech and child labor. The U.S. Court of Appeals for the District of Columbia has cleared Alphabet, Apple, Dell, Microsoft, and Tesla of participating in a “forced labor” venture alongside suppliers, by buying cobalt for their lithium-ion batteries. As Reuters reports, the complaint came from former child miners from the Democratic Republic of the Congo, and representatives of five children who had died while mining the metal. The court said the plaintiffs didn’t show the tech firms had anything more than a buyer-seller relationship with their suppliers.

Spain blocks Worldcoin. Spain’s privacy regulator has temporarily blocked Sam Altman’s WorldCoin scheme in the country. WorldCoin involves people having their irises scanned in exchange for free cryptocurrency and a digital ID. According to the Financial Times, the Spanish watchdog is hoping to see coordinated action across Europe against the project, which is partially headquartered in Berlin.

Keeping ASML Dutch. The Dutch chip-making equipment firm ASML is Europe’s most valuable tech firm, and the Dutch government is terrified that it might try to expand elsewhere to escape issues including policy changes that could discourage foreign workers from coming to the Netherlands. According to De Telegraaf (the story is covered in English by DutchNews) the government has set up an “Operation Beethoven” to examine a list of ASML’s demands, and its threat to go somewhere like France.

ON OUR FEED

“Kudos to AWS for taking action and supporting customer choice. It is time for Microsoft to remove exit fees and its anti-competitive licensing that hurts customers, AI innovation, and competition by preventing choice.”

—Google Cloud VP Amit Zavery praises Amazon for following Google in abolishing fees for customers who switch to a rival cloud provider and slams Microsoft for now standing out like a sore thumb. It’s very unlikely any of these changes would be happening if it weren’t for growing antitrust scrutiny.

IN CASE YOU MISSED IT

Tech’s 6 ‘gatekeepers’—including Amazon, Apple, Meta and Microsoft—are about to face heavy new scrutiny as Europe aims for ‘fairer’ digital markets, by the Associated Press

OpenAI pushes back on Musk after lawsuit: Tesla CEO ‘sued us when we started making meaningful progress’, by Bloomberg

The legal premise of Elon Musk’s OpenAI lawsuit is weak. But the questions it raises are not, by Jeremy Kahn

SpaceX’s ‘crusade’ against the NLRB starts today as wrongful termination hearing begins, by Jessica Mathews

Lawyers for Meta, Mark Zuckerberg seek dismissal of lawsuit alleging the company didn’t protect users from human trafficking and child sexual exploitation, by the Associated Press

Bitcoin breaks all-time high of $69,000 as investors flock to spot ETFs ahead of halving, by Niamh Rowe

BEFORE YOU GO

Deepfake threats. The Center for Countering Digital Hate tested leading AI image generators such as Midjourney, ChatGPT Plus, and Microsoft Image Creator, and found they could be manipulated into churning out misleading election-related images, CNN reports. CCDH: “Although these tools make some effort at content moderation, the existing protections are inadequate. With the ease of access and minimal entry barriers provided by these platforms, virtually anyone can generate and disseminate election disinformation.”