By: Enny Olaleye
Over the past couple years, the United States government has expressed several concerns about the potential security risks associated with TikTok, a popular social media application that has amassed over 1 billion active users every month. Some officials have suggested that TikTok could be used by the Chinese government to collect data on American citizens or to spread propaganda.
According to TikTok, the social media app serves as a platform for users to “come together to learn, be entertained, and grow their business, as they continue to create, discover and connect with a broader global community.” TikTok now serves as one of the largest worldwide social networks, coming in third after Facebook and Instagram. This is evidenced by its widely popular international status—approximately 150 million Americans alone are active members of the social media app—making up nearly half of the U.S. population.
As a result of the app’s widespread popularity in the United States, government officials have become wary about the potential risks the social media app poses. In August 2020, former President Donald Trump issued an executive order that would have effectively banned TikTok in the US unless it was sold to an American company within 45 days. This order cited concerns about national security and the app’s handling of user data, as the US government was worried that user data could be accessed by the Chinese government. Additionally, the US government accused TikTok of censoring content that would be unfavorable to the Chinese Communist Party and allowing misinformation to spread on its platform.
However, the ban was temporarily blocked by a federal judge and the Biden administration later put the order on hold to conduct a broader review of security risks posed by Chinese technology. In June 2021, President Biden signed an executive order that expanded the scope of previous orders related to Chinese-owned apps and other technology. The order aimed to protect US citizens’ sensitive data and prevent the Chinese government from gaining access to that data through apps like TikTok. In September 2021, the Biden administration announced that it would not pursue a ban on TikTok, but it would continue to monitor the app’s potential security risks.
In response, TikTok has repeatedly denied these allegations, saying that it stores U.S. user data on servers located in the U.S. and that it has never provided data to the Chinese government. The company has also taken steps to distance itself from its Chinese parent company, ByteDance, by appointing a U.S. CEO and creating a U.S.-based data center.
Unfortunately, TikTok’s actions have done little to appease the concerns raised by federal officials and have only led legislators to double down on taking action against the platform. As of March 2023, the Biden administration has called on TikTok’s parent company, ByteDance, to either sell the app or face a possible ban in the United States because of concerns about data privacy and national security. The White House has also signaled its support for draft legislation in the House of Representatives that would allow the federal government to regulate or ban technology produced by some foreign countries, including TikTok. The federal government and multiple states have also already banned TikTok on government devices.
Thus, the question arises: “Can the federal government actually do that?”
Well—not necessarily. First and foremost, the U.S. government does not have the authority to ban speech, as free speech is a right guaranteed to citizens under the First Amendment of the U.S. Constitution. Posts on TikTok are protected by the First Amendment since they are a form of speech. While the Biden Administration has replaced the Trump order with one that provides a more solid legal ground for potential action, it still cannot override the First Amendment protections afforded to speech on TikTok.
Further, if this issue is brought to the courts, proponents of a TikTok ban will most likely claim the national security risks posed by the app are self-evident. Proponents of a ban believe that TikTok’s relationship to China and how Chinese law requires companies to cooperate with all requests from Beijing’s security and intelligence services creates obvious security problems. However, that line of reasoning is unlikely to find support with federal judges, who will be weighing the potential security risks against the imposition of real-world restrictions on the rights of 150 million Americans to post and exercise free speech on an extremely popular platform.
Even if judges were to rule that a TikTok ban is neutral when it comes to content and viewpoint, the government would still have to prove that the remedy is narrowly tailored to serve, at a minimum, a “significant government interest,” in order to justify a ban and the corresponding restriction on speech. To ensure narrow tailoring, the Supreme Court developed the standard of strict scrutiny when reviewing free speech cases. To satisfy strict scrutiny, the government must show that the law meets a compelling government interest and that the regulation is being implemented using the least restrictive means. However, narrow tailoring is not confined to strict scrutiny cases, as seen in McCullen v. Coakley, where the Court determined that a Massachusetts law regulating protests outside abortion clinics was not content based and, thus, not subject to strict scrutiny.
As of April 2023, there has been no federal legislation passed that would permit an outright ban of TikTok in the United States. While the First Amendment likely limits the government’s ability to ban the app outright, it could still target TikTok’s ability to conduct U.S.-based financial transactions. That includes potential restrictions on its relationship with Apple and Google’s mobile app stores, which would severely hamper TikTok’s growth. By targeting conduct instead of speech, such a restriction would be outside of the First Amendment’s protections.
Regardless, amid all this government action, there is one thing that has made itself apparent. As the federal government escalates its efforts against TikTok, it’s coming up against a stark reality: even a politically united Washington may not have the regulatory and legal powers to wipe TikTok off American phones.