Quick Take
Much of the controversy around Tiktok centres not on the content on the platform – the vast majority of which has little to do with politics – but who controls the technology behind it, the algorithms that draw users in, and what happens to the data collected.
Right now, it’s still unusual to see cases like this one, that litigate the social complexities of technology designed according to the values and priorities of a closed society with limited information flow then being used in an open and liberal one.
Different parts of the world may vary from the western world on how important this is. For instance, security concerns mean that Huawei, another major Chinese tech firm, now has little foothold or market in much of the west. But to many fast-growing economies in the Global South, the attractions (price and effectiveness) of that company, and Chinese technology in general, still outweigh real security concerns.
In the next decade, as technology develops fast in the west and China, cases like the Tiktok litigation are likely to become much more frequent, and reflect the dilemmas of the world’s most important bilateral competition.
This case pits the First Amendment right of free speech against Congress's constitutional authority to safeguard national security. It's an unusual case and will require the court to balance these two bedrock rights and powers in a new way. Both sides made creative arguments in their briefs and the judges will be asking difficult questions during oral argument about where the limits of each right and authority lay.
Congress saw two distinct threats posed by TikTok — first, that it allowed the Chinese government access to sensitive data about Americans, and second, that it provided a powerful attack vector for propaganda that the Chinese government could activate in the future. TikTok's answer to the data security issue involves technical claims about whether its deal with Oracle to keep Americans' data in the United States is sufficient to mitigate these risks. The second issue — whether Congress can ban a digital information vector that allows foreign propaganda to be pushed into America and onto Americans' devices — raises thornier First Amendment issues.
While the First Amendment defenses raise uncomfortable questions about the limits of Congress's authority to ban information sources, I believe Congress was justified in passing the ban. Former Supreme Court Justice Robert Jackson famously stated that the U.S. constitution should not be made into "a suicide pact," and Congress must retain the ability to protect our nation against bona fide threats to national security.
Congress is currently debating bills that would ban TikTok in the United States. We are here as technologists to tell you that this is a terrible idea and the side effects would be intolerable. Details matter. There are several ways Congress might ban TikTok, each with different efficacies and side effects. In the end, all the effective ones would destroy the free Internet as we know it.
If we want to get serious about protecting national security, we have to get serious about data privacy. Today, data surveillance is the business model of the Internet. Our personal lives have turned into data; it’s not possible to block it at our national borders. Our data has no nationality, no cost to copy, and, currently, little legal protection. Like water, it finds every crack and flows to every low place. TikTok won’t be the last app or service from abroad that becomes popular, and it is distressingly ordinary in terms of how much it spies on us. Personal privacy is now a matter of national security. That needs to be part of any debate about banning TikTok.