The Supreme Court Judges TikTok

On January 10, the U.S. Supreme Court heard oral arguments for TikTok, Inc. v. Garland, which will undoubtedly become a landmark case in both First Amendment and national security law. The court has been asked to determine whether the Protecting Americans from Foreign Adversary Controlled Applications Act (“Controlled Applications Act”) may be constitutionally applied to the popular short-video sharing service TikTok. In brief, the Controlled Applications Act requires TikTok to divest from its Chinese ownership or be debarred within the United States. The parent company has ruled out a forced sale or divestment. If the court upholds the act as applied, TikTok will go poof from app stores across the country.

TikTok, which has 170 million monthly American users, is owned by ByteDance, a China-headquartered company, which, in turn, is ultimately susceptible to pressure or control from the Chinese Communist Party. TikTok’s competitive edge, which makes it a preferred short-video service among Americans, is its proprietary algorithm that ensures that users are recommended videos that anticipate the viewer’s tastes—keeping the user glued to their screen. Significant percentages of TikTok users self-report using the app “to get news” (41 percent) and “to keep up with politics” (36 percent).

In return, TikTok collects an astonishing amount of personal data on its users. As the DC Circuit Court noted in its opinion upholding the ban, “TikTok automatically collects large swaths of data about its users, including device information (IP address, keystroke patterns, activity across devices, browsing and search history, etc.) and location data (triangulating SIM card or IP address data for newer versions of TikTok and GPS information for older versions)…It may also collect image and audio information (including biometric identifiers and biometric information such as faceprints and voiceprints); metadata (describing how, when, where, and by whom content was created, collected, or modified); and usage information (including content that users upload to TikTok).” Put simply, every TikTok user has voluntarily allowed Beijing ultimate access to personal data of the sort, as Justice Sotomayor put it in her 2012 opinion in United States v. Jones, which “reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

If the American government could control TikTok, you can bet that civil libertarians would (quite rightly) be sounding the alarm about President-elect Donald Trump or potential FBI Director Kash Patel having access to a tool that could covertly manipulate Americans’ news diets or store sensitive personal information. Those concerns hardly diminish given TikTok’s relationship with the Chinese government, which of late has been on a determined march of cyber-based intelligence gathering against American targets.

The People’s Republic of China is presently engaged in an unfriendly competition with the United States and our Western allies, part of which has involved waging information warfare, as a recent Foundation for Defense of Democracies report put it, to both “undermine Americans’ trust in their leaders, their government, and each other…[and] manipulate U.S. public opinion regarding Hong Kong, Taiwan, Tibet, and Xinjiang,” with the ultimate aim of “weaken[ing] and divid[ing] Americans” to “remove any U.S. obstacles to Beijing’s control and oppression at home and ‘might makes right’ foreign policy abroad.” The U.S. government, through the Controlled Applications Act, has determined that TikTok risks “serv[ing] as a force multiplier” for this political warfare campaign against America.

This is not to gainsay the potential free speech and association risks at issue here. As even the laziest student of American history knows, American presidents from John Adams to Woodrow Wilson to Franklin Roosevelt have overreacted to perceived foreign threats with blunderbuss assaults on the Constitution. Thankfully, the Controlled Applications Act is no Sedition Act. It is a carefully drafted piece of legislation. It takes a scalpel, not a meat-ax, to the issue.

In full, the act cautiously and discretely targets only certain applications (not all potential fora), like TikTok, which are produced by narrowly defined “covered compan[ies]” “controlled by a foreign adversary.” The statute limits only four such adversaries: China, as well as Russia, Iran, and North Korea—all allies of Beijing’s unfriendly competition against the West. In particular, the act is a vast improvement over an earlier legislative draft, the so-called “Restrict Act,” which was less carefully drafted and which would have deserved to be struck down by the courts. As a result, given the care that Congress put into its draftsmanship, as well as the commensurate gravity of the threat, the Supreme Court ought to rule that the government has, as applied here, narrowly tailored its law to a compelling national security interest.

The act is no panacea, however. China will not cease attempting to spy on or influence Americans just because the Supreme Court determines the Controlled Applications Act is constitutional. Nor can we be confident that future U.S. government efforts to counter those threats would be as constitutionally considerate as the Controlled Applications Act. If anything, history suggests the opposite.

Thankfully, there is a better approach: one that shifts risk away from the Constitution and onto China. The United States has been on the receiving end of political warfare carried out by Beijing and cannot end this merely through case-by-case defensive legislation. America establishes deterrence by establishing that it can and will take the fight to our adversaries. Counterpunching, not censorship, is the ultimate answer.

To that end, the United States needs to build up a robust interagency capability housed within the executive branch to collect evidence of adversary information warfare operations, analyze vulnerabilities among hostile states, and task the relevant state resources to carry out offensive information operations (or other appropriate disruptive action) abroad if necessary. If China knew that we would respond in kind to election interference, political warfare, or TikTok manipulations by holding things at risk in China as valuable to the CCP as an American-driven, robust, and open civil society is to us, perhaps Beijing might consider a less hostile path.

As the saying ought to go: “good deterrence makes good neighbors.”

Zac Morgan is an attorney specializing in First Amendment and campaign finance law. He previously worked for the Institute for Free Speech and currently serves as counsel to Commissioner Allen Dickerson of the Federal Election Commission. The views expressed in this article are his own and do not express an official view of the U.S. government.

Image: Shutterstock.com.