The TikTok Ban Was Jawboning, And Yet Another Example Illustrating Why Jawboning Is Bad (And Unconstitutional)

This post was written on Sunday. By the time you read it there may have been 12,492 further unconstitutional TikTok-related hijinks since then, but because this particular kind of unconstitutional violation might well rear its ugly head again, if not with respect to TikTok then with respect to something else, it’s still worth pointing out the problem, even if how it applies to TikTok may have been obviated by even stupider deviations from the Constitution since.

There was an argument left on the table in the TikTok briefs at the Supreme Court: The ban, among its many unconstitutional flaws, was also unconstitutional jawboning. And Supreme Court precedent from just last year explained why.

In NRA v. Vullo the Court made clear that the government can’t go after a speaker it doesn’t like by pressuring an intermediary the speaker needs to deal with as a way of sticking it to the speaker. And yet, with the TikTok ban, that’s exactly what Congress did: impose liability on the intermediary services TikTok needs to deal with to run if they help TikTok run.

Just look at how the statute is written, and where the prohibition is. Right there, in its first main provision at Section 2(a) (and Section 1 is just the short title of the law), here’s what the law says:

It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following:

And then it describes what these other non-TikTok third parties cannot do, namely host the app in its app stores:

(A) Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.

Or provide any sort of server support:

(B) Providing internet hosting services to enable the distribution, maintenance, or updating of such foreign adversary controlled application for users within the land or maritime borders of the United States.

It is this unconstitutional statutory construction that, ironically, is why Trump can’t easily fix this mess without making a bigger one. Because even if he promises not to go after TikTok, he still hasn’t solved the problem because the law’s teeth are not just biting TikTok but anyone helping the app work. And they are sharp teeth, threatening billions in penalties:

An entity that violates subsection (a) shall be subject to pay a civil penalty in an amount not to exceed the amount that results from multiplying $5,000 by the number of users within the land or maritime borders of the United States determined to have accessed, maintained, or updated a foreign adversary controlled application as a result of such violation.

So in the cross-hairs of this law are Google and Apple, which host the app in their app stores,* but also anyone else who provides any sort of services, like perhaps Amazon, if the app is using their cloud services, and potentially CDNs that help handling the data load, and possibly services that help with transmission like backbone providers and wireless telcos if its services are used to connect end users to the service (even if this law omits them with its focus on “hosting,” and it’s not entirely clear that it does, the next law could easily catch them)… The degree of corrupt abdication of his obligation to enforce the law as Chief Executive of the United States needed to save TikTok is significantly greater than if he just needed to universally exempt TikTok from this law, because he’d have to exempt them all.

It does, of course, beg the question as to why any of these affected entities did not sue to challenge the law themselves, because the law is about them. And this sort of impermissible jawboning is going to keep affecting them as intermediaries, again and again, until there is finally enough pushback to take this unconstitutional weapon out of the government’s regulatory quiver.

But that they even needed to is another reason why jawboning is bad. The government put these companies in a position they were not supposed to find themselves in, where they couldn’t freely exercise their own rights as service providers because the government didn’t like a user of their services. And to vindicate their own right they would have to expend the costs associated with litigation as well as the risk of painting yourself as a target for a government that has shown itself to be vindictive to technology platforms it doesn’t like. It was probably a lot more expedient just to refuse service to TikTok and somehow hope that the government does not start to pick off, one by one, everyone else they provide service to with other laws later…

Of course, given the other constitutional problems facially manifest in the TikTok ban, they may have thought it unnecessary, as surely TikTok’s challenge should have been enough. And while they probably should have shown up as amici to help, and in doing so point out this jawboning problem, the rushed briefing during the holidays may have well made such participation in the litigation, at least at the Supreme Court, functionally impossible.

Perhaps TikTok should have raised the jawboning issue itself – as it is it doesn’t seem like the NRA v. Vullo case was even cited in its Supreme Court briefs – but in its briefs it only had so many words it could include and so much time to write them. And the arguments it did bring to bear should have been availing on their own.

But maybe it’s just as well: while it’s bad enough that the Court has backed off of supporting the First Amendment’s protections in all the ways it just did, it would be even worse if it had also backed off of its protective precedent in this context too.

* We also should be concerned about the cybersecurity risk that comes from pressuring app stores to disable distribution of app updates, leaving users to run only outdated software on their phones, but that’s a subject for another post…