The Challenges of Banning TikTok When ‘Code is Free Speech’

The Esports Observer explored the potential U.S. ban of short-form video app TikTok at length last week in the article, “How the U.S. Government Could Stop the Clock on TikTok.”  While researching that article we also reached out to Kurt Opsahl, deputy executive director and general counsel of the digital rights advocacy group Electronic Frontier Foundation, to get an opinion on the ramifications of shutting down this content creation platform.  

At the heart of this story is data collection. U.S. companies collect a lot of data about what its citizens do every day on the Internet through various connected devices (PCs, mobile devices, virtual voice assistants, etc.) including what entertainment content we consume, our location, what games we play, what we buy, who we are talking to, and what we are talking about.

Which is to say, short-form video app TikTok doesn’t collect any more data than any other software that Americans use (there’s research here and here to support this).

  • Facebook runs Facebook, Instagram, VR company Oculus, and Facebook Gaming. 
  • Amazon owns Twitch, Alexa, and the largest online retail portal in the world.  
  • Google owns YouTube, Google Assistant, sells mobile games apps, and develops the Android mobile OS.
  • Apple makes iPhone and iPad, operates Siri, and sells iOS games to the world.

Axios has a rundown of what data some of the most prominent tech companies in the world collect in a series of reports, but you get the idea.

So why is TikTok worse than all of these companies we interact with in the same way on a daily basis?  Because, according to politicians and some security experts, it is owned by a Chinese company and the Chinese Communist Party has laws that force the app’s owner, ByteDance, to provide it with any data it collects. For this reason it has been deemed a “national security risk.” ByteDance has denied this, noting that its data servers are based in the U.S. and Singapore, and that it has never shared information with the Chinese government. Critics are not convinced.

Opsahl acknowledges that TikTok continues to face challenges on its data collection practices.

“What I’ve seen from TikTok are a number of privacy and security concerns,” he said. “One of the more recent ones was [when] Apple upgraded its OS and it revealed that TikTok was copying the clipboard. They had previously been found to do this, and said they would stop, and then it was found that they were doing it again.”

This and other incidents (like its 2019 fine for COPPA violations) have raised a number of questions about what exactly ByteDance is doing with all the data it collects. Critics insist that the troves of data are going directly to the Chinese Communist Party.

“I don’t know if they give this information to the Chinese government, but at least any information stored in China (including Hong Kong now that China is more aggressive there) could be subject to legal requests under Chinese law,” Opsahl said.

Opsahl points out that one of the best things ByteDance could do right now to deal with questions about its practices is to simply be more forthcoming about how it is resolving privacy and data issues and how many times the Chinese government has made requests for information. 

“I think TikTok could certainly do better at being transparent about showing what steps they have taken to ensure that these privacy/security issues are resolved and maybe provide more information about their relationship with the Chinese government, like a transparency report talking about the number of requests they have received and responded to,” he said. “There’s lots of things that TikTok could do to provide more information about how their service is used.”

He also thinks that ByteDance selling a controlling interest in TikTok’s U.S. operations to native investors would be an easy way to eliminate the accusations that it is beholden to the Chinese government.

“Sometimes that has been a way out for when a company is under sort of tremendous pressure,” he said. “They have an asset that is losing value and better to sell it to someone who can have all the value than themselves with a lost value. And, you know, that can be actually an effect of saying ‘There’s going to be a ban, Secretary Pompeo suggested there would be a ban and even if that talk doesn’t go any further than it already has,’ it creates questions about the value that may encourage ByteDance to find a purchaser, so they can get the cash and move along.”

When asked about President Trump’s ability to unilaterally ban the software in the U.S. through an executive order, using the International Emergency Economic Powers Act, or a combination of both, Opsahl noted the challenges of such an effort. 

“Well, one of the questions is ‘could he write up an executive order that said that?’ And sure you can write up an executive order that says all sorts of things, Opsahl said. “The sort of legal questions that he would have to overcome for that is that it is designed for sanctions about property, and software is sometimes called intellectual property, but it is not the traditional property that might have been in contemplation here, and it has an exemption about information or informational materials. So, it seems that a piece of software might actually be a closer fit to informational materials.”

While not intimately familiar with International Emergency Economic Powers Act, Opsahl noted that this situation reminds him of a case the EFF took part in in the nineties that established that “code is free speech” (Bernstein v. Department of Justice) and therefore protected under the First Amendment (also see the 2011 SCOTUS ruling on video games in the case Brown v. Entertainment Merchants).

I’m not as familiar with like the case law that comes out of this act, whether it has a judicial determination, but there is in a different context (a lot of which I’m very familiar with) which is about sanctions for encryption software where years ago in the nineties the courts determined that code is speech. It is something that is within the protections of the First Amendment. And so something that bans a form of speech raises First Amendment concerns.”

Whatever measures the Administration or lawmakers could manage to successfully deploy against ByteDance, Opsahl feels that those efforts would likely run afoul on constitutional grounds because they would be overly broad. In a perfect world for critics, the government might somehow compel both Apple and Google to remove the app from their storefronts, and in an even broader move (which is also highly unlikely) the U.S. government might require users to uninstall the app from their devices.  

“For a lot of those people, probably the vast majority, there are not any realistic national security concerns with the kinds of communications they are using it for, so a ban would not be narrowly tailored for the particular circumstances, which is something that is important in first amendment analysis, whether it is narrowly tailored or overly broad.”

Finally, Opsahl feels that even the U.S. Treasury’s Committee on Foreign Investment in the United States (CFIUS) investigation into ByteDance’s 2017 acquisition of which led to the formation of TikTok in the U.S., will face legal challenges.

“I’m not as familiar with what powers are granted to them. They are a part of the executive branch and so all the constitutional issues would apply regardless of what any statute said. But I actually am not very familiar with what the statutes say and their powers are.

“So putting aside for the moment their ability to unwind something a couple years old and how that works, the question that sort of comes to my mind on the issue is what aspects of that acquisition, if it was unwell, are necessary to provide the TikTok software that we have today.”