Summary of the TikTok "ban"
Legislation passed in April 2023 requiring ByteDance (a Chinese company) to sell all of its holdings in TikTok to a U.S. company, which would sever TikTok's ties with China. ByteDance had 9 months to sell, and is allowed a 90 day extension only if the sale is in-progress.
This legislation specifically names TikTok but also provides a framework for identifying other applications that are subject to control by foreign adversaries. The President has authority to make determinations with regard to this legislation, and can use executive orders to provide that 90-day extension.
The Government's two concerns are data collection and the Chinese Government (a foreign adversary) controlling the TikTok algorithm for espionage purposes. Chinese law requires companies to provide data to the Chinese Government and coordinate with intelligence operations upon request.
The U.S. Supreme Court finds that the national security concerns outweigh any free-speech concerns, and does acknowledge that this legislation places a burden on the expression of speech.
This decision largely hinges on the fact that the free-speech concerns are not grounded in the content of the speech, nor the identity of the speaker; and on the fact that China has a proven track record of accessing personal data and engaging in espionage activities. The decision is focused on the data-collection aspect, not the algorithm-aspect.
The U.S. Supreme Court decision was unanimous. The legislation passed with bipartisan support (House voted 352-65 with 155 Dems YES, 50 Dems NO; Senate voted 79-18 & 15 of those NO votes were GOP).
Sotomayor disagrees on a technical legal aspect (strict scrutiny), but agrees with the judgement. Gorsuch agrees with the judgement, though "harbor[s] serious reservations about whether the law before us is 'content neutral' and thus escapes 'strict scrutiny.'".
The judgement is unanimous.
Please read the "Quotes from the Supreme Court" after "My Thoughts", or read the whole decision yourself.
My Thoughts
TikTok collects data from people's contact lists. I am not a TikTok user, and have not consented to TikTok collecting my contact information. My privacy is violated when a contact of mine uses TikTok and consents to share my contact info with TikTok. The "ban" is good for my privacy, and does not affect my ability to access entertainment of my choosing.
I agree with the government's assessment that TikTok poses a national security threat. I disagree with framing this as a "ban", as ByteDance has the option to divest (thus keeping TikTok on the market), but is choosing not to. (I find myself calling it a "ban", though. Other language would be cumbersome. The Supreme Court also agrees to some extent that it is effectively a ban.)
I have concerns about the potential for algorithm manipulation, but ultimately Americans have the freedom to subject themselves to such manipulation, and we do so extensively on various platforms - YouTube, Facebook, Instagram, Twitter, BlueSky, Pinterest, Google/Bing Search, and more.
More importantly, Congress should take these data-collection concerns seriously with all companies, not just with Chinese Companies. Google, Facebook/Meta, and many other companies also collect the kind of data that TikTok does.
Further, this domestic data-collection has been used for nefarious purposes, such as hiking car insurance rates based on location data collected from people's phones when they use apps like Gas Buddy, or Grindr selling data to the Catholic Church to identify priests using the app, or police departments buying data from DNA-ancestry companies instead of pursuing warrants for this private data.
Legislation that addresses data-privacy accross-the-board may have addressed concerns with regard to TikTok. This "ban", which will be quite controversial, should direct us toward discussions about data privacy accross-the-board, and should motivate congress to act to protect our Right To Privacy.
Roe v Wade was founded on the Right To Privacy. It was wrongly overturned on the grounds that the Government's interest in protecting fetuses outweighs any Right To Privacy. The Right to Privacy is essential to Democracy and Freedom.
I lean toward supporting the TikTok "ban", but my feelings on this are not strong. My feelings on the Right to Privacy, however, are quite strong. If we get caught up in the TikTok argument, we will be distracted from the far more important issue of the Right to Privacy.
Quotes from the Supreme Court
The majority of the Supreme Court decision discusses technical legal aspects related to how they're making their determinations. The below snippets highlight the actual issues at play, as written in the decision.
My choice of snippets is biased toward supporting the "ban", and I have not sufficiently presented arguments against the "ban".
Chinese Government Control: (p3)
ByteDance Ltd. is subject to Chinese laws that require it to “assist or cooperate” with the Chinese Government’s “intelligence work” and to ensure that the Chinese Government has “the power to access and control private data” the company holds.
(p14)
And Chinese law enables China to require companies to surrender data to the government, “making companies headquartered there an espionage tool” of China.
Ownership Structure: (p2-3)
TikTok is operated in the United States by TikTok Inc., an American company incorporated and headquartered in California. TikTok Inc.’s ultimate parent company is ByteDance Ltd., a privately held company that has operations in China. ByteDance Ltd. owns TikTok’s proprietary algorithm, which is developed and maintained in China. The company is also responsible for developing portions of the source code that runs the TikTok platform.
Data Collection: (p13-14)
The platform collects extensive personal information from and about its users.
Public reporting has suggested that TikTok’s “data collection practices extend to age, phone number, precise location, internet address, device used, phone contacts, social network connections, the content of private messages sent through the application, and videos watched.”
[A] Draft National Security Agreement [notes] that TikTok collects user data, user content, behavioral data (including “keystroke patterns and rhythms”), and device and network data (including device contacts and calendars).
If, for example, a user allows TikTok access to the user’s phone contact list to connect with others on the platform, TikTok can access “any data stored in the user’s contact list,” including names, contact information, contact photos, job titles, and notes.
Access to such detailed information about U. S. users, the Government worries, may enable “China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”
Petitioners do not dispute that the Government has an important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U. S. TikTok users. Nor could they.
Rather than meaningfully dispute the scope of the data TikTok collects or the ends to which it may be used, petitioners contest probability, asserting that it is “unlikely” that China would “compel TikTok to turn over user data for intelligence-gathering purposes, since China has more effective and efficient means of obtaining relevant information.”
The record reflects that China “has engaged in extensive and years-long efforts to accumulate structured datasets, in particular on U. S. persons, to support its intelligence and counterintelligence operations.”
(p19)
The Government has explained that ByteDance Ltd. uses the data it collects to train the TikTok recommendation algorithm, which is developed and maintained in China. According to the Government, ByteDance Ltd. has previously declined to agree to stop collecting U. S. user data or sending that data to China to train the algorithm. The Government has further noted the difficulties associated with monitoring data sharing between ByteDance Ltd. and TikTok Inc.
(Gorsuch, p25)
The record before us estab lishes that TikTok mines data both from TikTok users and about millions of others who do not consent to share their information. According to the Federal Bureau of Investigation, TikTok can access “any data” stored in a consenting user’s “contact list”—including names, photos, and other personal information about unconsenting third parties.
What Can Be Banned: (p5)
Second, the Act establishes a general designation framework for any application that is both (1) operated by a “covered company” that is “controlled by a foreign adversary,” and (2) “determined by the President to present a significant threat to the national security of the United States,” following a public notice and reporting process.
The Act exempts a foreign adversary controlled application from the prohibitions if the application undergoes "qualified divestiture" ... that the President determines will result in the application “no longer being controlled by a foreign adversary.”
90-day Extension: (p6)
The Act permits the President to grant a one-time extension of no more than 90 days with respect to the prohibitions’ 270-day effective date if the President makes certain certifications to Congress regarding progress toward a qualified divestiture.
Gorsuch Concurring: (p23)
First, the Court rightly refrains from endorsing the government’s asserted interest in preventing “the covert manipulation of content” as a justification for the law before us. One man’s “covert content manipulation” is another’s “editorial discretion.” Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them.
(p25)
Fourth, whatever the appropriate tier of scrutiny, I am persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the President as an adversary of our Nation, from harvesting vast troves of personal information about tens of millions of Americans.
(p27)
Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.