The ACLU and EFF have lost the plot on TikTok
Tags: tiktok, china, firstamendment, freespeech
Published: 2023-03-25 12:14:39

With discussions of a potential US government ban of TikTok increasing, civil libertarian organizations like the [ACLU](https://twitter.com/ACLU/status/1630341121426505729?lang=en) and [EFF](https://www.eff.org/deeplinks/2023/03/government-hasnt-justified-tiktok-ban), [among others](https://pen.org/letter-to-congress-opposing-federal-law-to-impose-a-ban-on-tiktok/), have come to TikTok's defense. They have released impassioned defenses of the platform, arguing that a ban on TikTok would be an unconstitutional violation of the First Amendment's protections of free speech and expression by limiting the ability of Americans to express themselves.

The ACLU's historic and principled defense of [deeply unpopular, offensive, and even dangerous speech](https://www.aclu.org/issues/free-speech/rights-protesters/skokie-case-how-i-came-represent-free-speech-rights-nazis) and the EFF's "[A Declaration of the Independence of Cyberspace](https://www.eff.org/cyberspace-independence)" manifesto have earned these organizations respect and cemented their reputations as principled defenders of the free expression. However, rapidly evolving technologies and geopolitical circumstances lead to novel situations and uncertainty about how to interpret these deeply held principles.

Take for instance the Berman Amendment, which the ACLU cites alongside the First Amendment in its defense of TikTok. As the ACLU [argues](https://twitter.com/ACLU/status/1630341121426505729):
> [This ban] would also gut the Berman Amendment, which was passed in 1988 to protect our right to receive information regardless of what country that information was created in. It's what keeps the U.S. government from banning a book by a Chinese author simply because it's from China and in this case it means that you can't ban a social media app simply because the app is from a Chinese company.

Ars Technica provides [further details](https://arstechnica.com/tech-policy/2023/01/us-tiktok-ban-could-be-thwarted-by-import-law-enacted-in-the-1980s/) on the context in which the Berman Amendment was passed:

> Back in 1977, Congress passed the International Emergency Economic Powers Act (IEEPA) to empower the president to impose sanctions on and oversee trade with hostile nations. The plan was to prevent average American citizens from assisting US enemies, but the law troubled publishers doing business with book authors and movie makers based in hostile nations. Those concerns led Congressman Howard Berman (D-Calif.) to propose an amendment in 1988, which passed, exempting "information and informational materials" from IEEPA and blocking presidents from regulating these materials. As technology evolved, in 1994, another IEEPA amendment specifically exempted electronic media, leading to today, when everything from a tweet to a TikTok would be free from presidential regulation under the so-called Berman amendments. 

The nuance that the ACLU fails to grapple with is just how much the information and technology spaces have evolved from 1988 to 2023. In 1988, the concern was about ensuring Americans had the ability to both access information coming from and publish information to hostile nations. A free society has little to fear from authors publishing books advocating for their country's political ideologies, whether it be Communism or nationalism, while same cannot be said in the reverse. The intention of the marketplace of ideas is to allow even bad ideas to be openly argued for and, if found to be flawed, to be rejected.

A ban on TikTok would violate neither the spirit nor the letter of the First Amendment or the principle of the marketplace of ideas. Such a ban would not be based on the content that Americans are viewing on the app, but rather based on the app's utility for the Chinese government in signals intelligence gathering. In other words, it would be a [viewpoint neutral ban](https://www.mtsu.edu/first-amendment/article/1028/viewpoint-discrimination). TikTok is not being considered for a ban because of its content, but rather because of its capabilities.

TikTok is not like a book nor is it simply a repository of "cat videos". As the ACLU and EFF are well-aware, the nature of modern apps is that they can harvest sensitive information on their users, including their contacts, location data, private messages, apps installed on their devices, and countless other pieces of sensitive Personally Identifiable Information. The bulk collection of such information is what made the [NSA's bulk telephony metadata](https://irp.fas.org/nsa/bulk-215.pdf) collection so controversial: without even knowing the _contents_ of phone calls, simply knowing the metadata of calls (e.g., who you're calling, when you're calling, how often you're calling, the length of your calls, and where you're calling from) is extremely powerful. In the wrong hands, that information can be used for highly nefarious purposes.

However, unlike with the NSA's program, there are no legal protections for Americans' data scooped up by TikTok or other foreign-owned apps. While Americans have legal protections against the collection of their data by US government organizations like the FBI or NSA, with limited exceptions for [incidental data collection](https://www.intelligence.gov/foreign-intelligence-surveillance-act/1239-incidental-collection-in-a-targeted-intelligence-program), foreign citizens generally have no such protections. Furthermore, once that data has been acquired, there is no means by which it can be clawed back. Once the US government has acquired data on foreign citizens, those governments cannot force the US to delete that data any more than the US government can force the Chinese government to delete data on Americans. Even if it could, there is no means by which it could be verified that the foreign government did not simply create a copy of the data.

Consider for example China's hack of the [Office of Personnel Management](https://www.wired.com/story/china-equifax-anthem-marriott-opm-hacks-data/). The hack gave China access to the Central Personnel Data File, which includes, "all personnel data for every federal employee, every federal retiree, and up to one million former federal employees". In response to this hack, the Director of National Intelligence, James Clapper, said, "You have to kind of salute the Chinese for what they did. If we had the opportunity to do that, I don't think we'd hesitate for a minute." Additionally, consider the [leaks of NSA's PRISM program](https://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data), we know American companies including Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple provided the US government with the contents of their users' communications. As [noted by the Guardian](https://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data), "the 'home-field advantage' due to housing much of the internet's architecture" enabled NSA analysts to readily access a treasure trove of signals intelligence, with an ability to query the data of any user of these services.

Likewise, the popularity of TikTok with Americans and others around the world gives the Chinese government a similar home-field advantage. If governments of liberal societies are willing and able to use their home-field advantage with digital technologies to acquire such signal intelligence, it is virtually guaranteed that the governments of illiberal, authoritarian societies are willing and able to.

Furthermore, there is the issue of reciprocity. The Chinese government has long banned the websites and apps of US Internet companies. Included in these blocks are websites such as Facebook, Google, Twitter, YouTube, and WhatsApp. As James Andrew Lewis of CSIS has [noted](https://www.csis.org/analysis/ban-tiktok-again), "The disparity in the treatment of Chinese and U.S. companies is part of a larger Chinese strategy to gain technological and commercial advantage—as when Chinese companies could do business in the United States, but U.S. companies were forced to take a Chinese partner or provide access to technology." This state of affairs resembles Popper's [Paradox of Tolerance](https://en.wikipedia.org/wiki/Paradox_of_tolerance), which states, "If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them."

The ACLU, EFF, and a number of others seem to have gotten caught up in this paradox, as evidenced by a [joint letter](https://pen.org/letter-to-congress-opposing-federal-law-to-impose-a-ban-on-tiktok/) put out by a number of digital civil liberties organizations that argues, "a legislative ban on TikTok in the U.S. would set an alarming global precedent, lending legitimacy to authoritarian regimes in shutting down and excluding services they disfavor." This argument falls flat. Authoritarian regimes have already shown they are more than willing to ban services they disfavor, and democracies like India have already conducted nationwide bans of TikTok with few repercussions. Indian TikTok users simply moved to other platforms, like Instagram or the Indian-made TikTok alternative [Josh](https://www.bloomberg.com/news/articles/2022-04-13/josh-app-surges-in-india-as-tiktok-replacement).

One might argue that if the US bans TikTok based on national security concerns, China would also be able to legitimize its bans of US websites based on similar concerns. Where this argument fails is that China's bans include informational services like Wikipedia or the New York Times and privacy protecting services like DuckDuckGo and Signal. The blocks in China are so broad that even the architect of Chinese "Great Firewall" was [forced to employ a VPN](https://www.nytimes.com/2016/04/07/world/asia/china-internet-great-firewall-fang-binxing.html) to complete a presentation at his alma mater. What this demonstrates is that China's decision to ban foreign websites is based on the fact that these sites provide users with the ability to freely access information and points of view contrary to the party line.

This argument also suffers from a degree of whataboutism. It fails to recognize that in the US there is a clear separation between government and private companies. While the US government can request and incentivize private companies to participate in programs like PRISM, it cannot readily force them to, as is evidenced by [Apple's resistance to joining PRISM until 2012](https://techcrunch.com/2013/06/17/apple-nsa/), while Microsoft joined in 2007. On the other hand, consider the Chinese government's treatment of a number of Chinese tech giants like Jack Ma, many of whom the government has [simply disappeared](https://www.bbc.com/news/business-64781986) for periods of time. Imagine the outrage if the US government one day extrajudicially abducted Bill Gates, Mark Zuckerberg, or Tim Cook until they acquiesced to the demands of the NSA. Such a scenario is completely unthinkable outside of authoritarian nations like China and [Saudi Arabia](https://www.nytimes.com/2017/11/04/world/middleeast/saudi-arabia-waleed-bin-talal.html).

In addition to the aforementioned arguments, there are a couple of less serious arguments that can be quickly dispensed with.

There is the argument that none of this matters because TikTok is largely just a bunch of teenagers posting silly videos. What this argument fails to recognize is that these teenagers will one day be the leaders of the country. Providing a foreign adversary with the opportunity to harvest the data on hundreds of millions of young Americans with little effort runs the risk of providing opportunities for China to influence US persons in the future using data collected when they were in their youth, such as embarrassing or sensitive messages, photos, and videos shared privately on the platform. Also, this is a massive platform consisting of all sorts of people. It is no longer a platform of a bunch of teenagers, even if they are a disproportionate share of its user base.

Another spurious claim, [made by Bruce Schneier](https://www.schneier.com/essays/archives/2023/02/why-the-u-s-should-not-ban-tiktok.html), is that what TikTok is doing is little different than what Meta's Facebook and Instagram are doing. On the surface, this is true. Meta and TikTok's owner ByteDance are both companies trying to run profitable businesses. The primary difference is that TikTok provides a foreign adversary with the capability of accessing this data, while Meta does not, and the secondary difference is that, as was noted earlier, China long ago banned Facebook and Instagram itself. Schneier and others have also argued that we should not be focusing on banning TikTok and instead focusing on shoring up US data privacy regulations. This is a false dilemma. Banning TikTok and shoring up US data privacy regulations can both be done.

Yet another [weak claim](https://www.vice.com/en/article/epv48n/banning-tiktok-is-unconstitutional-ludicrous-and-a-national-embarrassment) made is that there is no "proof that the Chinese government has used TikTok’s data for intelligence purposes." The Chinese government is not dumb or impatient and is well-aware of the US intelligence community's capabilities. It is either accessing the data in a manner it is absolutely certain the US government is not capable of becoming aware of, or it is simply amassing as much data as possible for access at a later date. We do not have to wait for proof that the Chinese government has harvested the data of hundreds of millions of Americans to ban it, and banning it at that point would not get that data back. We know the intentions and capabilities of the Chinese government. That alone is sufficient.

Perhaps the most unserious claim, [made by Rep. Jamaal Bowman](https://www.nytimes.com/2023/03/22/nyregion/jamaal-bowman-tiktok.html), is that discussion of a ban of TikTok is a result of racial animus toward China. A social media company based in Taiwan, Japan, South Korea, Thailand, Malaysia, Germany, the UK, France, Italy, Brazil, Argentina, India, Sri Lanka, Nigeria, Ethiopia, or any other free society where companies are not beholden to totalitarian, hostile, single-party states would not be facing this kind of scrutiny. On the other hand, if Russia-based VK or Yandex achieved TikTok-levels of popularity, it is absolutely guaranteed there would be a similar discussion of banning such a platform among American policymakers.

On the other hand, a serious point is the nature of _how_ TikTok should be banned. There are a number of ways this could be accomplished. All else being equal, it would be better to ban it in such a way that is less restrictive of what Americans are allowed to do with their own devices. That means Americans should not be banned from using TikTok on the web — we definitely do not want to create a "Great Firewall of America" — or installing it on their phones via methods like sideloading.

America's Internet must remain totally free of censorship, as it has always been, and the threat posed by TikTok is insufficient to justify such a change. Instead, banning the app from the app stores in the US should be sufficient to achieve the desired goals without being unnecessarily restrictive. Those Americans who truly wish to access TikTok by jailbreaking their iPhones or sideloading the app to their Android devices would remain free to do so. Erecting this barrier to entry should be sufficient to achieve the desired goal, particularly since jailbreaking an iPhone is significantly more involved than sideloading an Android app, and iPhones are [ubiquitous](https://www.axios.com/2021/10/14/teen-iphone-use-spending-habits) among American teens. If it is insufficient, then at that point the restrictions required to achieve the goal would be outweighed by their costs.

Balancing the needs of national security and free expression is at times a tricky one. Cases like the incidental, warrantless collection of Americans' data by the NSA is one such example of a difficult tension between ensuring national security with protecting domestic civil liberties. The case of TikTok, on the other hand, is not a tricky one. A ban on TikTok is viewpoint neutral and has minimal ramifications for free expression. Americans have plenty of other platforms on which they can post their cat videos that are not beholden to the whims of hostile, illiberal nations.