A bill banning TikTok in the United States – unless its Chinese owner sells most of it – has passed the Senate and signed into law by President Biden on Wednesday.
Shortly after Biden signed the bill, TikTok CEO Shou Zi Chew posted a video urging viewers to “rest assured, we’re not going anywhere”, adding that he is confident TikTok would win in a legal challenge. ByteDance said Thursday on Toutiao, a Chinese social media service it owns, that it “has no plans to sell TikTok.”
The new law comes after years of attempts to ban the very popular short video platform, including by former President Trump, for reasons of national security. But a digital law expert said the United States had provided no evidence to support his claims and believes the ban is unconstitutional.
Why the ban is unconstitutional
The legislation requires ByteDance, TikTok’s Beijing-based parent company, to sell the majority of the company within nine months, with an additional three months possible if a sale is pending. If not, the app will be banned. But as legal challenges loom, the delay could extend for years.
Besides being a major inconvenience for its 170 million American users, a ban on TikTok could be considered unconstitutional and a violation of the freedom of expression of both its users and the platform owner, according to Anupam Chander, A professor on the global regulation of new technologies at Georgetown University.
That’s because “the obvious intrusion into free speech has not been justified on grounds of national security,” he told Fortune. While the United States claimed China would use the app monitor the Americans and blamed TikTok for cultivate Propagandahe said the government had provided no public evidence of this.
In court, most of the debate will likely focus on whether the ban would infringe on the rights of Americans and TikTok, Chander said. As a Chinese company incorporated in the United States, he explained, TikTok has the same rights as an American person “and certainly has constitutional rights.”
TikTok is likely to argue that its right to communicate with the public is covered by this law, as if the US government were ordering new ownership of the network. New York Times, he added. He could also argue that the law represents “viewpoint discrimination” by targeting their specific views, which Chander says is particularly problematic under the First Amendment and is frowned upon by the courts.
Other data privacy solutions
Alternative mechanisms, such as creating a national standard of data privacy laws that would apply to all companies operating in the United States, could better protect Americans, he suggested.
While it is impossible to be completely safe from the risks of foreign surveillance on the Internet, Chander said a national standard for privacy rules would help minimize the risk of breaches present in several American companies, more generally. However, the development and adoption of such a law would be complicated.
“It’s politically much easier to pass a law that targets TikTok than a privacy law,” he joked.
The lack of a national standard in privacy laws has raised serious concerns from several different sectors, but there is no agreement on whether it should be stricter or less, Chander noted.
Without a national standard, ensuring consent on the Internet becomes cumbersome, as websites must ensure that each user agrees to information exchanges through cookies and advertising. But each state has different rules, complicating efforts to design platforms with interstate audiences, such as news publishers, he noted.
California has passed legislation such as Consumer Privacy Protection Act of 2018, which gives consumers more control over the personal information companies collect from them. And since then, the State has passed proposals which give consumers the right to correct inaccurate personal information a business has about them as well as the right to limit the use and disclosure of that data.
Ripple effects on Elon Musk’s X?
If a US ban on TikTok comes to fruition, it could serve as a model in other parts of the world, particularly in countries that have criticized US apps for violating their domestic laws, Chander warned. Governments could claim that the United States now recognizes the “dangers of foreign applications” and assert their own claims by mandating ownership of American applications.
As a potential example, he cited Brazil’s Supreme Court, which is investigation into Elon Musk on the spread of fake news on its social platform X as well as for alleged obstruction and criminal organization. If the Brazilian judge banned X, “he could cite this TikTok law in support”.
